text:
    A95A0602.
    ACTION FOR A CLEAN ENVIRONMENT et al. v. STATE OF GEORGIA.
    (457 SE2d 273)
   Johnson, Judge.

In 1993 the Georgia Legislature passed OCGA § 2-16-1 et seq., a bill entitled “Action for Disparagement of Perishable Food Products or Commodities.” Action for a Clean Environment (ACE) and Parents for Pesticide Alternatives (PPA) are environmental “watch-dog” groups which publish newsletters, distribute pamphlets, lecture parent groups and write letters to editors of various Georgia newspapers regarding food safety issues. Fearing suits arising from the new statute, ACE and PPA brought this action against the State of Georgia in Fulton County Superior Court seeking to have the new statute, which provides a cause of action to any producer, processor, marketer, or seller of agricultural or aquacultural product injured by disparaging remarks about their products, declared unconstitutional.

The State of Georgia filed a motion to dismiss asserting it has no legal interest adverse to ACE and PPA and that plaintiffs failed to establish the existence of a justiciable controversy. The trial court granted the state’s motion and ACE and PPA appeal. The appeal was initially filed in the Supreme Court, but was transferred to this court because the appeal challenges the trial court’s dismissal of plaintiffs’ action, which is a procedural rather than a constitutional issue. See Marr v. Ga. Dept. of Education, 264 Ga. 841 (452 SE2d 112) (1995).

Assuming, arguendo, the State of Georgia is a proper party in a suit against PPA or ACE because it participates in promoting and/or marketing agricultural products, an inchoate claim does not give rise to a justiciable controversy. “OCGA § 9-4-2 (a) provides for declaratory judgments in ‘cases of actual controversy.’ The words ‘actual controversy’ mean a justiciable controversy where there are interested parties asserting adverse claims on an accrued set of facts. [Cit.]” Cramer v. Spalding County, 261 Ga. 570, 572 (2) (409 SE2d 30) (1991). In Pangle v. Gossett, 261 Ga. 307, 308 (404 SE2d 561) (1991), the Supreme Court notes that subsection (b) of the Georgia Declaratory Judgment Act creates broader and more comprehensive jurisdiction over justiciable controversies than the declaratory judgment acts of some other states. Nonetheless, “the presence in the declaratory judgment action of a party with an interest in the controversy adverse to that of the petitioner is necessary under either subsection (a) or (b). For a controversy to justify the making of a declaration, it must include a right claimed by one party and denied by the other, and not merely a question as to the abstract meaning or validity of a statute.” (Citations and punctuation omitted.) Id. at 308 (1). See also Pilgrim v. First Nat. Bank of Rome, 235 Ga. 172 (219 SE2d 135) (1975). In this case there is no party to this action who seeks to uphold the constitutionality of the statute under attack. Because there is no adverse party to the proceeding, the trial court correctly dismissed appellants’ declaratory judgment action for failure to state a claim.

Decided May 4, 1995

David J. Bederman, for appellants.

Michael J. Bowers, Attorney General, Robert S. Bomar, Senior Assistant Attorney General, Cathy C. Taylor, Assistant Attorney General, for appellee.

“A controversy is justiciable when it is definite and concrete, rather than being hypothetical, abstract, academic or moot. [Cit.] Similarly, federal courts employ the doctrine of ‘ripeness’ under the Article III requirement of a ‘case or controversy.’ [Cit.]” Cheeks v. Miller, 262 Ga. 687, 688 (425 SE2d 278) (1993). Appellants’ challenge to the new statute giving rise to a cause of action for disparagement of perishable food products is not ripe for review.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.

       The new statute defines disparagement as: “[T]he willful or malicious dissemination to the public in any manner of false information that a perishable food product or commodity is not safe for human consumption. The information shall be deemed to be false if it is not based upon reasonable and reliable scientific inquiry, facts, or data.” (Emphasis supplied.) OCGA § 2-16-2 (1).


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A95A0626.
    IDEAL LOAN & FINANCE CORPORATION v. LITTLE.
    (457 SE2d 274)
   Andrews, Judge.

Ideal Loan & Finance Corporation (Ideal Loan) brought suit against Little seeking to collect the principal amount due on a loan evidenced by a note between the parties, plus attorney fees, court costs and interest. Little failed to respond to the suit, and Ideal Loan sought a default judgment. The trial court entered an order granting the default judgment in the principal amount of $169.16, plus attorney fees of $25.37 and court costs of $46.50. In the default judgment, the trial court further concluded that, based on a consideration of Ideal Loan’s request for a default judgment and the pleadings before the court, the note was usurious, and that Ideal Loan forfeited its right to the award of interest. We granted Ideal Loan’s application for a discretionary appeal from the default judgment. OCGA § 5-6-35 (a) (6).

Decided May 4, 1995.

Levy & Adams, D. Merrill Adams, for appellant.

Stanley T. Little, pro se.

1. Ideal Loan claims the trial court erred by requiring that it introduce proof of damages because, on its face, the action was a suit on a contract for liquidated damages. OCGA § 9-11-55 (a). The default judgment shows that the trial court did not require Ideal Loan to introduce evidence before the court to establish the amount of damages. This enumeration is without merit.

2. In enumerations of error two and three, Ideal Loan claims that the trial court erroneously calculated that the rate of interest charged on the note was usurious, and erroneously concluded in the default judgment that Ideal Loan forfeited any right to the award of interest because the note was usurious.

Although we need not address whether or not the trial court correctly calculated the rate of interest charged on the loan, we note that the “Annual Percentage Rate” referred to in the court’s judgment is not simple interest by which usury is measured. Norris v. Sigler Daisy Corp., 260 Ga. 271, 273 (392 SE2d 242) (1990).

In any event, in entering the default judgment, the trial court was not authorized to raise the defense of usury on behalf of Little. See OCGA §§ 9-11-54 (c); 9-11-55. “The defense of usury is personal to the debtor . . . [and] may not be urged save by the borrower or his privies.” Clark v. Kaiser Agricultural Chemicals, 156 Ga. App. 251, 252 (274 SE2d 648) (1980). The trial court erred to the extent it excluded the award of interest in the default judgment on the basis that the loan contract was usurious.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Blackburn, J., concur.

         A motion to set aside a default judgment pursuant to OCGA § 9-11-60 (d) may be brought on the basis that the underlying loan contract was usurious. See Consolidated Credit Corp. &c. v. Peppers, 144 Ga. App. 401 (240 SE2d 922) (1977), overruled on other grounds, Financeamerica Corp. v. Drake, 154 Ga. App. 811, 813 (270 SE2d 449) (1980).


author: Johnson, Judge.

text:
    A95A0668.
    PAYNE v. THE STATE.
    (460 SE2d 297)
   Johnson, Judge.

Landon Lodell Payne files this appeal asserting that he was denied his right to trial by jury. At arraignment Payne pleaded not guilty to charges of driving under the influence of alcohol, no proof of insurance, no driver’s license, improper turn, no tag, giving a false name to a police officer and violation of the Clayton County open container ordinance. He requested that counsel be appointed to represent him. The trial court, noting that there was no likelihood of incarceration, declined to appoint counsel, informing Payne that he could retain his own attorney or represent himself. Payne appeared pro se at the subsequent bench trial and was convicted on all charges, although the no proof of insurance conviction was later set aside. He was sentenced to probation and fined. The court agreed to appoint counsel to pursue an appeal and a motion for new trial was filed, asserting, inter alia, that Payne had not expressly and intelligently waived his right to trial by jury. The trial court conducted a hearing and denied the motion for new trial noting in its order that Payne had not been denied his right to counsel, and noting generally: “The defendant had been advised at arraignment of the maximum penalties for each offense and his constitutional and statutory rights.”

“A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. When the purported waiver of this right is questioned, the State bears the burden of showing the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.” (Citations and punctuation omitted.) Lawal v. State, 201 Ga. App. 797, 798 (2) (412 SE2d 864) (1991). Clearly the state bears the burden of establishing that such a waiver was knowingly and intelligently made. The state claims that the form Payne signed entering his not guilty plea at his arraignment satisfies its burden. The form reads: “Comes now defendant in the within matter and acknowledges receipt of copy of accusation and list of witnesses, waives benefit of counsel, formal arraignment, trial by jury and pleads (Not) guilty.” This form, standing alone fails to establish that Payne knowingly or intelligently waived rights guaranteed him by the United States and Georgia Constitutions.

Alternatively, the state suggests that because the issue was raised in the motion for new trial and because there is no transcript of the hearing on the motion for new trial we must presume the trial court acted in accordance with the law. This is a correct statement of the law, but cannot be applied here. The trial court’s order, as noted above, does not address the issue of the right to a trial by jury specifically, much less whether there was a knowing or intelligent waiver of that right. Therefore, Payne’s convictions must be vacated and the case remanded to the trial court for an evidentiary hearing on the question of whether he made a knowing and intelligent waiver of his right to trial by jury.

Decided May 4, 1995.

Sharon D. Bundrage, for appellant.

Keith C. Martin, Solicitor, Michael P. Baird, Assistant Solicitor, for appellee.

As in Lawal, supra, if the trial court determines from the evidence that Payne made such a waiver, the convictions and sentences may be reinstituted and Payne is free at that point to pursue whatever appellate remedies are available to him.

Judgment vacated and case remanded with direction.

Birdsong, P. J., and Smith, J., concur.

       On remand, no transcript of the evidentiary hearing was prepared. This court found in the absence of a transcript we must presume the evidence authorized the trial court’s finding that Lawal “ ‘elected to have a non-jury trial.’ ” Lawal v. State, 205 Ga. App. 842 (1) (424 SE2d 36) (1992).


author: Blackburn, Judge.

text:
    A95A1090, A95A1091.
    CONRAD v. THE STATE; and vice versa.
    (457 SE2d 592)
   Blackburn, Judge.

In Case No. A95A1090, Donna Michelle Conrad a/k/a Adams appeals her conviction of possession of more than 28 grams of a mixture containing methamphetamine, a violation of the Georgia Controlled Substances Act. In Case No. A95A1091, the State appeals the sentence imposed by the trial court.

Case No. A95A1090

1. Conrad enumerates the trial court’s denial of her motion to suppress evidence as error. Conrad asserts the State failed, to prove the confidential informant’s reliability to the judge who issued the search warrant.

The affidavit upon which the search warrant was based was prepared by Agent Keith Knowles. In his affidavit, Agent Knowles averred that on October 26, 1993, a confidential informant told him Donna Michelle Conrad and Curt Wayne Conrad lived at 95 Sedgefield Drive, and that Donna Michelle Conrad engaged in the sale and distribution of large quantities of methamphetamine. The informer stated that the methamphetamine comes from a white male subject who lives in Conyers known only as “Al.”

Agent Knowles averred that on October 27, 1993, the informant again contacted him and stated that Barbara Brand, from Conyers, picked up a quantity of money to take to the distributor of the methamphetamine. Brand was supposed to deliver a quantity of methamphetamine to Conrad at 95 Sedgefield Drive on October 28, 1993, between 7:30 a.m. and 8:00 a.m. The informant stated that Brand would be driving a blue and silver Chevrolet S-10 Blazer, and that she would have a block package with her. Agent Knowles further averred that a police surveillance team at the 95 Sedgefield residence confirmed that a woman driving a blue and silver Blazer arrived at the residence at approximately 7:30 a.m. The woman entered the house carrying a package, stayed two or three minutes, and left without the package.

With regard to the confidential informant, Agent Knowles averred that the informant had given information in the past, the latest within the past 72 hours which had proven to be truthful and reliable.

The totality of the circumstances analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by the Georgia Supreme Court in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984), is employed to determine whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant. The issuing magistrate is required to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id.

“On review of a ruling on a motion to suppress, we construe the evidence most favorably to the trial court’s ruling, as the trial court has ruled on disputed evidence and the credibility of the witnesses, and we must accept that ruling unless it is clearly erroneous. We are not authorized to substitute our findings of fact for those of the trial judge.” (Citations and punctuation omitted.) Thomason v. State, 215 Ga. App. 189 (1) (450 SE2d 283) (1994).

In the present case, the affidavit contained an affirmative statement regarding the informant’s past assistance and reliability, detailed information regarding the present crime, and information regarding exact corroboration of the informant’s tip by independent police work. This information supported the reliability of the informant, and the trial court correctly denied Conrad’s motion to suppress on this ground.

2. In her second enumeration of error, Conrad contends her motion to suppress was improperly denied because the warrant was so overbroad as to constitute an impermissible general warrant.

“The U. S. and Georgia Constitutions guarantee the right to our citizens to be secure from unreasonable searches and seizures, and that no warrant shall issue except upon probable cause particularly describing the place to be searched, and the persons or things to be seized. This requirement for particularity forbids the issuance of general exploratory warrants. A general warrant is of course void. By definition it is one which does not sufficiently specify the place or the person to be searched. A search warrant is not invalid for want of description of the premises to be searched if the description sufficiently permits a prudent officer executing the warrant to locate the premises, person or property definitely and with reasonable certainty, and without depending upon his discretion. If a search warrant, read as a whole, points out the premises, person or property to the exclusion of all others, and on inquiry leads the officers unerringly to them, it meets the description requirement.” (Citations and punctuation omitted.) Minter v. State, 206 Ga. App. 692, 693 (426 SE2d 169) (1992).

In the present case, the search warrant described the property as a residence located at 95 Sedgefield Drive, Jonesboro, Clayton County, Georgia. It further described the articles to be seized as “Methamphetamine, other drugs/controlled substances, and other items indicative of the sale/distribution of controlled substances/dangerous drugs which are being possessed in violation of Georgia Law.” This warrant sufficiently points out the premises to be searched and names the type of property to be seized. Therefore, we conclude that Conrad’s enumeration of error concerning the search warrant is without merit.

Case No. A95A1091

3. The State appeals the sentence imposed on Conrad by the trial court, contending that it is void due to the trial court’s failure to follow the mandatory sentence provided in OCGA § 16-13-31 (e) (1).

Conrad was indicted and found guilty of violating the Georgia Controlled Substances Act by “knowingly possess [ing] more than 28 grams of a mixture containing methamphetamine.” The trial court sentenced Conrad to eight years in prison and fined her $10,000. OCGA § 16-13-31 (e) provides that “[a]ny person who knowingly sells, manufactures, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine or of any mixture of methamphetamine . . . commits the felony offense of trafficking in methamphetamine and, upon conviction thereof, shall be punished as follows: (1) If the quantity of methamphetamine or mixture involved is 28 grams or more, but less than 200 grams, the person shall be sentenced to a mandatory minimum term of imprisonment of ten years and shall pay a fine of $200,000.00.” (Emphasis supplied.)

Decided May 4, 1995

Lee Sexton & Associates, Lee Sexton, for appellant.

Robert E. Keller, District Attorney, Per B. Normark, Assistant District Attorney, for appellee.

In Boatwright v. State, 193 Ga. App. 141 (387 SE2d 386) (1989), this court interpreted OCGA § 16-13-31 (a) which provides a similar mandatory minimum sentence for trafficking in cocaine. Therein we held, “[i]t is clear that OCGA § 16-13-31 (a) (l)-(3) establish the specific mandatory minimum sentences which are to be imposed for trafficking in cocaine and that the relation of OCGA § 16-13-31 (f) [now codified as subsection (g)] to that scheme is merely to provide for a general maximum as to any sentence which is otherwise imposed for trafficking. Appellant was indicted for trafficking in a quantity of cocaine in excess of (28) grams. He was thus sufficiently apprised that, if convicted, he would receive a sentence which, under then existing law, would consist of at least (25) years but no more than 30 years of imprisonment and the payment of a fine (not to exceed $500,000).” Boatwright, supra at 143.

The trial court’s failure to follow the mandatory sentencing requirement for Conrad’s conviction of trafficking in methamphetamine in a quantity of 28 grams or more requires that the sentence be vacated and remanded to the trial court with direction that the trial court follow the mandates of OCGA § 16-13-31 (e) (1), which we are without authority to ignore.

Judgment affirmed as to conviction; judgment vacated as to sentence and case remanded with direction.

McMurray, P. J., and Andrews, J., concur.


author: Birdsong, Presiding Judge.

text:
    A93A1872.
    METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al. v. LEIBOWITZ et al.
    (457 SE2d 827)
   Birdsong, Presiding Judge.

After this court, sitting as a body, divided equally on the disposition of this case, the appeal was transferred to the Supreme Court in accordance with Art. VI, Sec. V, Par. V of our Constitution of 1983. Our Supreme Court, having resolved the issue of the scope of appellate review on which this court was divided equally, has now returned the appeal to this court for disposition of the remaining enumerations of error. MARTA v. Leibowitz, 264 Ga. 486, 487 (2) (448 SE2d 435).

The Metropolitan Atlanta Rapid Transit Authority and Fulton County (collectively MARTA) appeal from a judgment in favor of Henry E. Leibowitz, Alan J. Lease, and Leibowitz and Lease, D.D.S., P.A., in a total taking condemnation case. Drs. Leibowitz and Lease jointly owned the condominium which was leased to Leibowitz and Lease, D.D.S., P.A., to conduct a dental practice.

MARTA contends the trial court erred by charging the jury that relocation expenses, including costs of renovating the replacement facility, might be awarded without also instructing the jury that they must first find that the property taken was unique under Georgia law. MARTA also contends the trial court erred by admitting evidence of the cost of new personal property for the replacement facility. Held'.

1. Appellees have moved to dismiss the appeal because MARTA has not paid into court the difference between the amount originally tendered and the amount of the judgment. This contention is based on this court’s holding in MARTA v. Funk, 206 Ga. App. 868 (426 SE2d 623) (Funk I), rev’d on other grounds, MARTA v. Funk, 263 Ga. 385 (435 SE2d 196) (Funk II), that the payment of the judgment into court did not render that appeal moot. Appellees assert that under Funk I either the payment is required (and thus payment is a precondition for appeal), or if payment is voluntarily made, the appeal becomes moot under OCGA § 5-6-48 (b).

Although our law once required such payments in appeals from judgments based on jury verdicts for amounts exceeding the original payment or tender to the condemnee because of the “first paid” requirement of our State Constitution (see Paulk v. Ga. Power Co., 231 Ga. 721, 722 (204 SE2d 154); City of Gainesville v. Loggins, 224 Ga. 114, 117 (160 SE2d 374)), after ratification of Art. I, Sec. Ill, Par. I (b) of the Georgia Constitution of 1983, this requirement no longer exists because public transportation cases were added to the categories of condemnation cases for which payment is not required until the amount is finally fixed and determined by law. See Dougherty County v. Snelling, 132 Ga. App. 540, 541-542 (208 SE2d 362), overruled on other grounds, Zuber Lumber Co. v. City of Atlanta, 237 Ga. 358, 365 (227 SE2d 362); State Highway Dept. v. Howard, 119 Ga. App. 298, 301 (167 SE2d 177). Accordingly, payment of the excess amount is not a precondition to maintaining an appeal and, therefore, appellees’ motion is denied.

2. The general principles regarding recovery of relocation and renovation expenses involved in this appeal are controlled by our Supreme Court’s decisions in MARTA v. Leibowitz, supra at 486-487 (1), and Funk II, supra at 386-387. Although condemnees are entitled to just and adequate compensation for property taken by condemnation, to damages to their separate business interests, and to recovery of relocation expenses incurred in moving businesses, they are not entitled to expenses for renovation of the new facility to which they moved their practice. Id. Because of the specific errors asserted in this appeal, however, reversal is not required. MARTA v. Leibowitz, supra at 487 (2). Nevertheless, we reiterate: In condemnation cases, trial courts should not give a charge to the effect that the costs of renovating new premises would be recoverable as relocation expenses.

Decided May 8, 1995.

Pursley, Howell, Lowery & Meeks, Charles N. Pursley, Jr., Jo L. Meeks, Susan B. Forsling, for appellants.

3. In accordance with our Supreme Court’s decision in this case, appellate review in this appeal is limited to the error in the charge enumerated by MARTA and we are not free to consider other errors which were not enumerated. MARTA v. Leibowitz, supra at 487 (2). This enumeration of error contends only that the trial court erred by charging the jury it could award relocation expenses, including costs to build out the replacement facility, without also charging that the jury must first find the property taken was unique under Georgia law; as this is not a correct statement of the law, the trial court did not err by giving a charge without including the erroneous concept of uniqueness. Id. at 487 (1); Funk I, supra at 871; Funk II, supra at 386-387.

4. MARTA’s second enumeration of error contends “the trial court erred in admitting as evidence of ‘relocation expenses’ the cost to purchase new personal property for use in a replacement facility.” Although an objection based on the principle that evidence concerning expenses of renovating a new facility was not relevant would have merit (see MARTA v. Leibowitz, supra at 487 (1); Funk II, supra at 386)), the transcript shows that no timely objection was made on this or any other basis. Instead, Dr. Leibowitz was permitted to testify about these costs without objection, and was cross-examined at length about these items. MARTA then moved to strike the testimony of Dr. Leibowitz because he sought compensation for personal property.

As this objection focused solely on the property as personalty and raised no issue of relocation expenses, MARTA did not pose a timely objection at trial to the admission of this evidence on the specific grounds now asserted in its enumeration of error and argued in its brief. Under these circumstances, there is nothing for us to review. Dairyland Ins. Co. v. McIntosh, 171 Ga. App. 782, 783-784 (321 SE2d 110). Moreover, a motion to strike cannot be used to strike testimony that was admitted without contemporaneous objection. See Guthrie v. Bank South, Douglas, 195 Ga. App. 123, 126 (393 SE2d 60). Compare Mable v. State, 261 Ga. 379, 381 (405 SE2d 48). Accordingly, this enumeration of error is also without merit.

Judgment affirmed.

Beasley, C. J., McMurray, P. J., Pope, P. J., Johnson, Blackburn, Smith and Ruffin, JJ., concur. Andrews, J., not participating.

Peek & Whaley, James G. Peek, J. Corbett Peek, Jr., for appellees.


author: McMurray, Presiding Judge.

text:
    A95A0001.
    PENDLEY v. THE STATE.
    (457 SE2d 681)
   McMurray, Presiding Judge.

On March 28, 1994, defendant Pendley entered his pleas of guilty to the offenses of battery and obstruction of an officer. Defendant was sentenced to a term of six months in the Clayton County jail on each offense, the sentences to be concurrent. A motion to modify sentence was filed on April 15, 1994, and a hearing on that motion held on April 22, 1994. On April 25, 1994, a notice of appeal from the convictions and sentences entered on March 28, 1994, was filed. An order denying the motion to modify sentence was filed on April 28, 1994.

Via a new attorney, defendant filed a motion to withdraw plea of guilty on July 26, 1994. A hearing on this motion was conducted on August 11,1994, and an order denying the motion to withdraw plea of guilty was entered the following day. Held:

Defendant’s sole enumeration of error contends that his former counsel was ineffective in that he failed to properly inform defendant of the statutory ramifications of the guilty plea to a charge of misdemeanor battery. While this issue was submitted to the state court subsequent to the filing of defendant’s notice of appeal, dismissal is not required as premature filing of a criminal defendant’s notice of appeal is no longer a ground of dismissal. Shirley v. State, 188 Ga. App. 357 (1), 358 (373 SE2d 257). See also Adams v. State, 264 Ga. 71, 72 (1) (440 SE2d 639).

Defendant is a repeat-offender felon who was released on parole less than six months prior to the commission of the crimes at issue. Thus, pursuant to OCGA § 42-9-51, the plea of guilty to the battery offense and the sentence of incarceration resulted in revocation of defendant’s parole. Defendant contends that his former attorney was ineffective in that he failed to inform him of this consequence of a guilty plea.

Applying the familiar two-prong test from Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674), we assume that defendant has satisfied the first portion of the test by showing that the performance of his former attorney was deficient. Defendant was undoubtedly entitled to be informed of the consequences of his plea. Whitehead v. State, 211 Ga. App. 121 (438 SE2d 128); Muff v. State, 210 Ga. App. 309 (436 SE2d 47). Nonetheless, there is ample evidence to support the state court’s conclusion that any deficiency of the former attorney, in failing to inform defendant of the revocation of parole which would follow a sentence of incarceration on the battery offense, did not alter the result of the proceeding. Hatcher v. State, 259 Ga. 274, 275 (1) (379 SE2d 775); Edmond v. State, 214 Ga. App. 707, 708 (2) (448 SE2d 775); Hall v. State, 210 Ga. App. 792, 793 (1) (437 SE2d 634). This conclusion was based on evidence that before defendant entered his plea of guilty, he was informed by his parole officer that any sentence of incarceration on the battery offense would result in automatic revocation of his parole. Defendant having actual knowledge of the information which the former attorney was presumably deficient in failing to provide, it would appear to be a reasonable conclusion that repetition of that information by the attorney would not have altered defendant’s decision to enter the plea of guilty.

Decided May 8, 1995.

William H. Stevens, Richard D. Hobbs, for appellant.

Keith C. Martin, Solicitor, Michael P. Baird, Assistant Solicitor, for appellee.

Defendant’s remaining arguments suggest other unspecified deficiencies on the part of his former attorney in failing to define possible courses of action and their consequences. However, these additional theories are not predicated upon any evidence of record and appear to constitute merely speculation and conjecture. We note in this connection that the record developed concerning the alleged deficiencies of defendant’s former attorney does not include any testimony from defendant. See Hatcher v. State, 259 Ga. 274, 275 (1), supra. The state court’s conclusion that defendant was afforded effective assistance of counsel is not clearly erroneous. We find no error in the denial of defendant’s motion to withdraw plea of guilty, nor do we find any legal basis for overturning the judgments of conviction and sentences entered by the state court on the offenses of obstruction of an officer and battery.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A0157.
    ARCHER v. THE STATE.
    (457 SE2d 679)
   McMurray, Presiding Judge.

Defendant was charged via indictment with possession of methamphetamine with intent to distribute, possession of marijuana (less than one ounce), and possession of a firearm during the commission of a crime. Following a bench trial, defendant was found guilty of each offense. He appeals from the judgment of conviction and sentences entered by the trial court on these charges. Held:

In his sole enumeration of error, defendant contends the trial court erred in denying his motion to suppress the 3.6 grams of methamphetamine, the marijuana, and “one .38 caliber Charter Arms handgun” found in the vehicle defendant was driving. He argues that the information supplied to police officers by an anonymous tipster was “insufficient to warrant an investigatory stop.”

At the hearing on defendant’s motion, only the investigating officers testified, and the following facts were established without contradiction: Captain David Bennett, director of a multi-jurisdictional drug task force encompassing Forsyth, Pickens, and Jasper Counties, testified that a confidential informant “advised that [defendant] would be coming to Forsyth County. She described him as a white male with dark hair and a moustache, driving a blue and tan van [registered in Gwinnett County] with a raised top and shutters on the inside of the windows. [Defendant] would be traveling from Bethelview onto Friendship Circle onto . . . Hurt Bridge, and that he would have methamphetamine in his possession.” The informant further advised that “this would take place between the hours of 9:00 and 10:00 a.m. — that morning.” Captain Bennett set up surveillance along the described route. “At approximately 9:55 a.m., a vehicle [appeared as] described to [police], driven by a person that was described to [them], bearing a Gwinnett County tag that was described to [them]. . . .’’At that point, Captain Bennett ordered the vehicle to be stopped. This was done by a uniformed officer, Deputy Sheriff Gene Hodge, who verified that the “subject was, in fact, [defendant, as identified by name in the tip].” Sergeant Lynn Payne identified himself as a member of the multi-county drug task force and asked defendant for his consent to search the van. Defendant said “Okay.” As Investigator David Tate approached the van to begin the consensual search, defendant stated: “[T]here may be a gun in the console and some ‘roaches’ in the ashtray.”

“One of the exigent circumstances justifying a warrantless search is where there is a seizure and search of a moving vehicle [based upon probable cause]. Carroll v. United States, 267 U. S. 132 (45 SC 280, 69 LE 543).” State v. Bradley, 138 Ga. App. 800, 802 (2) (227 SE2d 776). Although the tip in the case sub judice came from an informant of hitherto unconfirmed reliability, the details of that tip, including the predicted timing and route of a particular vehicle driven by a particular individual, were confirmed by the personal observations of the investigating officers. “ ‘Our decisions applying the totality of circumstances analysis . . . have consistently recognized the value of corroboration of details of an informant’s tip by independent police work.’ Illinois v. Gates, [462 U. S. 213 (103 SC 2317, 76 LE2d 527)].” State v. Stephens, 252 Ga. 181, 183 (311 SE2d 823). In the case sub judice, the confirmed tip provided the police with probable cause to effectuate an investigatory stop and warrantless search of defendant’s moving vehicle. State v. Dopson, 204 Ga. App. 51 (418 SE2d 623). Compare Vansant v. State, 264 Ga. 319, 320 (2), 321 (443 SE2d 474), where “the detaining officer did not have the requisite particularized basis for suspecting the driver of [a] particular white van of criminal activity.” “ ‘(W)hen dealing with the “reasonableness” of a search and seizure of vehicles the question is not whether a warrant was obtained or could have been obtained but whether a warrant was required in the first place. . . . (I)f the vehicle is moving . . ., as it was here, probable cause can be determined by a police officer, (and) the vehicle seized and searched without a warrant either immediately or later even though a search warrant might have been obtained between the seizure and the search. (Cit.)’ State v. Bradley, supra at 804 (2).” State v. Dopson, 204 Ga. App. 51, 52, supra. In the case sub judice, the trial court did not err in denying defendant’s motion to suppress.

Decided May 8, 1995.

Spruell & Dubuc, Billy L. Spruell, Melinda D. Taylor, for appellant.

Garry T. Moss, District Attorney, C. David Gafnea, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A0391.
    ROBERTS v. PRAKAS.
    (457 SE2d 688)
   Johnson, Judge.

John Roberts and Michael Prakas each owned 50 percent of the stock in a restaurant. The deterioration of the business relationship culminated in this litigation, initiated by Roberts. Prior to trial, the court granted Prakas’ motion in limine which disallowed evidence regarding events and allegations forming the factual basis of Roberts’ amended complaint. Although there are references in the briefs to a transcript of a hearing at which the motion was argued and decided, it is not part of the record on appeal. The trial did not go forward. Rather, the trial court granted Roberts’ request for a certificate of immediate review of the ruling on the motion in limine. This court denied Roberts’ application for interlocutory appeal.

Believing the grant of the motion in limine eviscerated his case, and having been denied review by this court, Roberts presented an order to the trial court which directed a verdict against him. The trial judge signed the order as submitted by Roberts, thereby providing him with a final judgment from which he could directly appeal the ruling on the motion in limine. OCGA § 5-6-34 (a) (1); Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 285-286 (1) (260 SE2d 20) (1979). This appeal raises the novel issue: Can a plaintiff solicit an adverse adjudication on the merits of a case in order to directly appeal an adverse pretrial evidentiary ruling?

Decided May 8, 1995.

David N. Levine, for appellant.

Moffett & Henderson, John W. Henderson, Jr., D. Kevin Wheeler, for appellee.

At the outset, we note that this court routinely treats directed verdicts as involuntary dismissals under OCGA § 9-11-41 (b) where no jury has been empaneled and the judge sits as the finder of fact at trial. That Code section provides in part: “After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.” Here, the plaintiff introduced no evidence, there being no trial. No facts were before the court from which a determination could be made regarding whether there was a right to relief. Also contrary to the Code section, the defendant did not move for the involuntary dismissal; rather the plaintiff himself moved to dismiss his case. The entry of an involuntary dismissal in this context was not authorized by statute and was error.

We recognize both the procedural dilemma in which the plaintiff finds himself, as well as the desire of the trial court to dispose of cases without the necessity of a trial when it appears that the result is certain. Nonetheless, “one cannot do indirectly that which the law does not allow to be done directly.” Richmond County v. McElmurray, 223 Ga. 440, 443 (1) (156 SE2d 53) (1967). We cannot permit irregular procedures to be followed to accommodate individual cases. The entry of the “directed verdict” must be reversed. Following trial of the case, Roberts may pursue any appellate remedies which may be available to him.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.

       Of course Roberts could have voluntarily dismissed the case without leave of court at any time prior to resting his case at trial. OCGÁ § 9-11-41 (a). Presumably he had his reasons for not doing so.


text:
    A95A0400.
    DEPARTMENT OF HUMAN RESOURCES v. LEWIS.
    (457 SE2d 824)
   McMurray, Presiding Judge.

On March 1, 1994, the Georgia Department of Human Resources filed a “Petition to Adopt Final Agency Decision” which requested the superior court to adopt an attached final agency decision as an order of that court pursuant to OCGA § 19-11-12 (a provision of the Child Support Recovery Act, OCGA § 19-11-1 et seq.) and to enter an income deduction order pursuant to OCGA § 19-6-30 et seq. The attached agency decision was a modification of a child support award which increased the amount to be paid on a periodic basis by Casey Lewis. The petition to the superior court recited that the procedural and notice requirements of various provisions of the Child Support Recovery Act had been satisfied and that the statutory time limit to challenge the adjustment in the child support had passed. The attached records failed to show any appeal from the administrative decision.

On March 15, 1994, the superior court entered an order adopting the final agency decision as an order of that court and ordering that income deduction be used to enforce the child support provisions. Also, a separate income deduction order was entered.

On March 24, 1994, Casey Lewis filed an answer denying the substantive allegations of the petition to the superior court. An order was entered on June 27, 1994, referencing a June 1, 1994 hearing in the case and a request by Casey Lewis for an appeal of his “review modification.” This order grants Casey Lewis’ request for an out-of-time appeal to the superior court.

Upon the out-of-time appeal, the superior court entered an order which reverses the final agency decision under the Child Support Recovery Act. The superior court determines that the child support provided in that decision is excessive and modifies that decision by substituting an amount set by the superior court.

The Department of Human Resources sought and obtained permission for this discretionary appeal in order that we might consider issues concerning the authority of the superior court to grant the out-of-time appeal and to substitute its judgment for that of the administrative agency in regard to the proper amount of child support to be paid. In reaching our decision, we need not reach the second of these issues. Held:

Administration of the Child Support Recovery Act is governed by the Georgia Administrative Procedure Act, OCGA § 50-13-1 et seq. OCGA § 50-13-19 (b) is that portion of the Administrative Procedure Act which provides for judicial review if requested within 30 days following a final agency decision. The superior court lacks jurisdiction when an appeal of an adverse decision by an administrative agency is filed beyond the time allowed by law and may take no action other than to dismiss the case. Miller v. Ga. Real Estate Comm., 136 Ga. App. 718 (1) (222 SE2d 183). Accord Taco Mac v. City of Atlanta Bd. of Zoning Adjustment, 255 Ga. 538 (340 SE2d 922); Rowell v. Parker, 192 Ga. App. 215, 216 (2) (384 SE2d 396).

Decided May 8, 1995.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Kevin M. O’Connor, Assistant Attorneys General, for appellant.

M. Kirby Wood, for appellee.

While the superior court’s final order includes language which may indicate that it considered the appeal to be a reconsideration of its decision to adopt the agency decision rather than the consideration of a matter beyond its jurisdiction, the substance of the matter is the same: an appellate review of the final agency decision. Casey Lewis cannot be permitted to do indirectly that which the law does not allow to be done directly. Krasaeath v. Parker, 212 Ga. App. 525, 527 (1) (441 SE2d 868); Cotton v. Bank South, N.A., 212 Ga. App. 1, 5 (440 SE2d 704); Jabaley v. Jabaley, 208 Ga. App. 179, 183 (430 SE2d 119). The superior court orders granting an out-of-time appeal and the final order entered upon the purported appeal were beyond the jurisdiction of the superior court and must be vacated and the case remanded. Upon remand the superior court is directed to enter an order reinstating and adopting the final agency decision, and also to enter an appropriate income deduction order.

Judgment vacated and the case remanded with direction. Andrews and Blackburn, JJ., concur.


author: Smith, Judge.

text:
    A95A0510.
    BASHIRI v. THE STATE.
    (457 SE2d 825)
   Smith, Judge.

A1 Bashiri was convicted by a jury of the charge of terroristic threats. OCGA § 16-11-37 (a). His motion for new trial was denied. In his sole enumeration of error, he contends the trial court erred in denying his motion for new trial made on the ground of ineffective assistance of trial counsel.

The evidence presented at trial showed that Bashiri contracted to have landscaping work done at a residence being built for him. The agreed contract price exceeded the amount allotted by the builder for landscaping, and Bashiri agreed to pay the difference. Seeking payment after Bashiri missed several appointments when the work was done, the landscaper telephoned Bashiri at his restaurant and left a message that if he was not paid he would remove the plantings. The landscaper testified that in his return phone call Bashiri immediately began screaming obscenities, informing him he had automatic weapons, knew how to use them, and would kill him. The landscaper further testified that Bashiri asked him if he “knew what a .45 would do to my head.” This testimony was corroborated by a friend to whom the landscaper handed the telephone during Bashiri’s call.

In a detailed order, the trial court found that Bashiri was not denied effective assistance of counsel. “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” (Citations, and punctuation omitted.) Rogers v. State, 210 Ga. App. 164 (2) (435 SE2d 457) (1993). The trial court’s finding in this case is not clearly erroneous, and we affirm.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that trial counsel’s performance was deficient and that he was prejudiced by that deficient performance such that he was deprived of a fair trial. Although Bashiri now asserts that trial counsel was ignorant of many points of law relevant to his defense, the trial court questioned Bashiri regarding his satisfaction with counsel’s representation, and Bashiri indicated satisfaction. Bashiri stated he had known his trial attorney “for a number of years,” and his counsel was retained rather than appointed. “ ‘There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.’ . . . [Cit.]” Wrease v. State, 214 Ga. App. 727, 728-729 (2) (448 SE2d 911) (1994).

On appeal, Bashiri’s main criticism of trial counsel’s performance involves his failure to accept the trial court’s sua sponte offer to charge on the lesser included offense of using “fighting words.” OCGA § 16-11-39. However, before acceding to counsel’s wishes regarding the charge, the trial court made certain counsel conferred with Bashiri several times. Although Bashiri originally disagreed, he apparently agreed during the last conference with counsel.

Moreover, this was clearly a matter of strategy. “Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course , of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate.” (Citations and punctuation omitted.) Sutton v. State, 210 Ga. App. 247, 248 (2) (435 SE2d 748) (1993).

Decided May 8, 1995.

Kenneth J. Vanderhoff, Jr., Osgood A. Williams, for appellant.

Garry T. Moss, District Attorney, C. David Gafnea, Assistant District Attorney, for appellee.

Bashiri’s trial counsel’s strategy was to pursue the defense that the threat had been conditional and constituted a defense of Bashiri’s habitation. The victim and another witness contradicted Bashiri’s claim that his threat had been conditional. The jury obviously believed the victim. This defense, however, permitted Bashiri to elicit testimony regarding the civil proceeding, which the State sought to avoid, and to attempt to convince the jury that this was really a civil matter, a perfectly legitimate trial tactic.

The trial court did not err in denying Bashiri’s motion for new trial on the ground of ineffective assistance of trial counsel.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


text:
    A95A0532.
    WHITFIELD v. THE STATE.
    (457 SE2d 682)
   McMurray, Presiding Judge.

Defendant Alphones Whitfield, a/k/a Timothy Whitfield, a/k/a Chester Williams was jointly indicted with Jacqueline Herndon and charged with the sale of cocaine within 1,000 feet of a housing project, possession of cocaine with intent to distribute within 1,000 feet of a housing project, and possession of marijuana with intent to distribute within 1,000 feet of a housing project. The evidence adduced at his jury trial showed that on December 9, 1992, Special Agent Woodrow Boyd of the Georgia Bureau of Investigation (GBI) was led by a confidential informant to Apartment 15 in the Magnolia Acres Housing Project (“Magnolia Acres”). This housing development is “part of the [subsidized housing provided by the] Waynesboro Housing Authority Development.” There, he met defendant, who was employing the alias Chester Williams. The co-indictee Jacqueline Herndon also was present and was identified under the alias Helen Williams. The defendant was living in Apartment 15 with his co-indictee and her child. Special Agent Boyd made a controlled buy of cocaine from defendant, paying him $1,140 in exchange for 25 grams of suspected crack cocaine. Special Agent Boyd expressly identified defendant as the person (Chester Williams) from whom Boyd had purchased cocaine, and who was subsequently identified as Timothy Whitfield.

On June 11, 1993, Special Agent Michael J. Seigler of the GBI led a party of ten or eleven officers to execute a search warrant for Apartment 15 at Magnolia Acres. The officers interrupted a dice game in progress in the kitchen. Defendant was in the master bedroom with two or three other persons. There, Special Agent Seigler recovered from the toilet bowl “[t]wo small bags, one containing a white rock-like material and the other containing a plastic package with a green residue which was suspected marijuana.” Defendant had $780 in his pockets. “A razor blade containing a white residue on the forward cutting edge of the blade was found on the dresser. . . .” In addition, marijuana packets were found in the kitchen sink; two packets of suspected marijuana were found on the bathroom floor; a crack pipe was found on the living room floor; $292 in currency was found on one of the persons with defendant in the bedroom; a scanner was taken from the hall closet; a pager was found on the kitchen floor; and a purse in the bedroom contained marijuana. Some of the suspected marijuana was packaged in manila coin envelopes, while other packets were individually wrapped in clear plastic wrap.

The jury found him guilty on all three counts. His motion for new trial was denied and this appeal followed. Held:

1. Defendant enumerates the denial of his motion to sever the offenses for trial, arguing that the offenses are not sufficiently similar that each “designates [defendant] as the common denominator.”

“Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975) . . . holds that where multiple offenses have been joined [for trial] solely on the ground that they are of the same or similar character, the defendant has an absolute right to a severance of the offenses.” Terry v. State, 259 Ga. 165, 167 (1), 168 (377 SE2d 837). “Where, however, . . . joinder is based on [the same conduct or on] a series of acts connected together [and evince ongoing criminality], severance lies within the sound discretion of the trial court. Coats v. State, 234 Ga. 659, 662 [(4)] (217 SE2d 260) (1975); Dingler v. State, 233 Ga. 462, 464[, supra].” Bland v. State, 264 Ga. 610 (2), 611 (449 SE2d 116). “Offenses are not joined solely because they are of the same or similar character where the similarity reaches the level of a pattern evincing a common motive, plan, scheme or bent of mind. Cooper v. State, [253 Ga. 736, 737 (3) (325 SE2d 137)].” (Emphasis in original.) Wilson v. State, 188 Ga. App. 779, 780 (1) (374 SE2d 325). In the case sub judice, “[although the two events were separated in time, the facts show a continuing course of criminal conduct . . . that is, [defendant’s] activities in supplying cocaine for each transaction. Accordingly, denial of the motion to sever [the offenses] was not an abuse of the trial court’s discretion. [Cits.]” Villarreal v. State, 198 Ga. App. 501, 502 (402 SE2d 104). See also McGee v. State, 191 Ga. App. 172, 173 (3) (381 SE2d 80); Thomas v. State, 174 Ga. App. 761 (1) (331 SE2d 627).

2. Next, defendant contends the trial court erred in admitting the physical evidence of the December 9, 1992, sale of 25 grams of rock cocaine over his chain of custody objection. He argues that there were “dramatically divergent accounts of which Crime Lab was the initial recipient . . .’’of this evidence. Defendant points to a transcription error made by the lead investigator, Special Agent Seigler, who wrote down that the evidence was from Apartment Id in Magnolia Acres; whereas, Special Agent Boyd testified that the sale was consummated in Apartment 15, as he wrote on the evidence transferral sheet. Also, defendant relies on the testimony of Dr. Fowler, Director of the Augusta branch of the State Crime Laboratory. Dr. Fowler contradicted Special Agent Seigler’s recollection that he turned the evidence in at the Savannah, Georgia, branch of the State Crime Laboratory as opposed to the Augusta, Georgia, branch. Dr. Fowler affirmed that in “December 1992 we were a little shorthanded on chemists in Augusta” and that the suspected cocaine in State’s Exhibit 1 was forwarded to Patrick Long in Savannah for chemical analysis. There is no contention that the evidence bag itself physically appears to have been tampered with.

It is obvious that one of the two witnesses has faulty recollection as to precisely which branch of the State Crime Laboratory first received State’s Exhibit 1, the tamper-resistant plastic bag containing the suspected cocaine received by Special Agent Boyd directly from defendant. However, the noted discrepancy does not amount to evidence of tampering so as to cast any doubt on the unbroken chain of custody. See Richards v. State, 189 Ga. App. 146 (1), 147 (375 SE2d 278). In view of the evidence as to the tamper-resistant nature of the containers used and of the procedures employed to protect the chain of custody, and further, in the absence of any physical manifestation of tampering or substitution, the circumstances relied upon by defendant admit of only bare speculation of tampering. Accordingly, the trial court correctly admitted the cocaine into evidence over defendant’s chain of custody objection. Brinson v. State, 208 Ga. App. 556, 557 (2) (430 SE2d 875). Defendant’s additional argument that there is a material variance in the weight of this exhibit, “varying several grams from the point of sale to the point of analysis . . .’’is raised for the first time on appeal and consequently presents nothing for review. Moreover, Patrick Long explained that he weighed the cocaine “exclusive of any packagingf,]” thereby explaining the apparent discrepancy. Langham v. State, 196 Ga. App. 71 (1), 72 (395 SE2d 345). This enumeration is without merit.

3. In defendant’s third enumeration, he contends the trial court erred in denying his motion for directed verdict of acquittal, as to the second and third counts of the indictment. He argues that the undisputed circumstance that the apartment was filled with people is evidence of equal access, which renders the evidence of his possession insufficient to sustain the convictions.

Defendant lived in the apartment with the named lessee, Jacqueline Herndon, and her child. The amount of cash found on defendant’s person is further circumstantial evidence that the contraband found abandoned in the toilet belonged to defendant rather than any of the other three present in the back bedroom. Defendant’s earlier hand-to-hand sale of cocaine was some evidence of an ongoing scheme to distribute narcotics.

“ ‘ “[A] finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” (Cit.)’ Whipple v. State, 207 Ga. App. 131, 132 (1) (427 SE2d 101) (1993).” Reid v. State, 212 Ga. App. 787, 788 (442 SE2d 852). “The evidence [in the case sub judice] authorized the jury to conclude [defendant] was in joint possession of the premises with [his co-indictee, who was the named lessee].” Cantrell v. State, 204 Ga. App. 330, 331 (419 SE2d 141). This is circumstantial evidence that defendant, as opposed to any social guest, possessed the contraband packaged for distribution. “A rebuttable presumption arises when one leases a room, and contraband is found therein, that the lessee is in possession of the entire premises and all the property found on the premises. This presumption may be overcome by evidence that others have access to the premises. Whether this presumption is rebutted is solely a jury question. Knighton v. State, 248 Ga. 199 [, 200 (2), fn. 1] (282 SE2d 102) (1981).” Taylor v. State, 195 Ga. App. 651, 652 (394 SE2d 604). In the case sub judice, corroborating this inference of possession is the proof of defendant’s prior sale at this same residence and the large amount of cash found upon his person; whereas, the others present held substantial but smaller sums. The evidence, although circumstantial, is sufficient to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of possessing cocaine and marijuana with the intent to distribute, within 1,000 feet of a public housing project, as alleged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Taylor v. State, 195 Ga. App. 651, 652, supra. See also Sims v. State, 213 Ga. App. 151, 153 (3) (444 SE2d 121), where the “ ‘manner of packaging being commonly associated with the sale or distribution of such contraband would authorize any rational trier of fact to infer that ([defendant]) possessed cocaine with intent to distribute. (Cit.) . . .’ Williams v. State, 199 Ga. App. 544 (1) (405 SE2d 539).” Consequently, the trial court did not err in denying defendant’s motion for directed verdict of acquittal. Humphrey v. State, 252 Ga. 525, 526 (1), 527 (314 SE2d 436).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.

Decided May 8, 1995.

Peter D. Johnson, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.


text:
    A95A0660.
    SAWYER et al. v. THE STATE.
    (457 SE2d 685)
   McMurray, Presiding Judge.

Tony Sawyer and Warnell Jones were jointly charged with kidnapping with bodily injury, rape, aggravated sodomy, armed robbery, theft by taking, and terroristic threats. The evidence at their joint trial, including the signed confession of each, showed that on the evening of November 7, 1985, the victim was employed as a cashier at the “Time Saver #17 on [Highway] 46 . . . where the paved road known as Old Register Road comes down and dead ends there as far as pavement is concerned ... at 46.” She closed the store at 10:00 p.m. and “got out of there at 10:30.” As she approached her truck, “somebody jumped . . . out from around the other side and told me not to move or anything.” He was short and had a pistol. He wore a ski mask and told the victim “not to holler or he would shoot [her].” He took her pocketbook and, “[holding] the gun on [her], [he] took [her] around the building and made [her] sit down.” The victim saw “another guy standing over there.” He was tall and after the short one apparently gave the victim’s pocketbook to the tall one, the tall one “went up front where the light was and took everything out [of her purse] . . . [including] almost $13.00 in fifty cent pieces.” The short one “kept telling [the victim] to keep [her] head down. And he stood there and [held] the gun on [the victim].” They then ordered her “to come around the building, and . . . put [her into her] truck. The perpetrators wanted money. The victim told them that if they were to attempt to go back into the store it would “set off the alarm.” The victim feared for her life because “they were talking about killing [her] between ’em. They was [sic] saying you want to kill her or not.” They “pulled up in front of this big fence.” The tall one ordered her to undress. When she resisted, he “stuck the gun in [her] temple,. . . and he pressed it real hard. And he says take ‘em off or I’ll kill you,” whereupon the victim removed her clothes. The tall one had sex with her “at gun point . . . [a]nd then the short one did . . . After that [the victim attempted] to put [her] clothes back on, [but] they wouldn’t let [her]. They made [her] ride just like that.” They “kept telling [her] that they were with the Mafia. And that they’d kill [her], and they was [sic] talking about putting [her] on the streets in Savannah. ... [If she were] to say anything about it, they’d have somebody to kill [her], and kill [her] little girl.” They stopped the truck a second time. “They made [her] lay down again, and the biggest, the tallest one went with [her] again.” The tall one forced the victim to perform an act of oral sodomy and “the short one [had] sexual relations with [the victim again]. . . .” They drove around further and finally stopped and released her “beside a big house, [where] you could look up and ... see Kentucky Fried Chicken [ . . . ] on Olliff Street[ . . . ] in Statesboro[.]” After the victim put her clothes back on, she turned right at the caution light and then drove “straight home.” The victim identified State’s Exhibit 1 as her gold digital watch in the form of a lock with a gold chain around it, which had been taken that night from her pocketbook. James Roshto, M. D., the “OB-GYN” from Bulloch Memorial Hospital, found a pubic hair sample “different [from that] of the alleged victim[.]” Tom McMillan, an investigator for the Bulloch County Sheriff’s Department, interviewed the victim at the Bulloch Memorial Hospital Emergency Room. She appeared “very upset . . . very emotionally distraught.” Investigator McMillan identified State’s Exhibit 1 as a lock watch and chain that he got “off the person of [defendant] Tony Sawyer,” during a custodial interview approximately nine days after the incident. Randy Smith, an acquaintance of both defendants, related a conversation amongst Tony Sawyer, Warnell Jones, and himself, whereby Tony Sawyer wanted to borrow Randy Smith’s father’s truck and have Randy Smith drive it to rob “the store on Old Register Road at 46.” When Tony Sawyer left them to go get a gun, Randy Smith told Warnell Jones that he “wasn’t gonna do it.” The next day, Tony Sawyer came by Randy Smith’s house and told Smith that he and Warnell Jones had “robbed the store.” Warnell Jones confirmed to Randy Smith “that they did[, . . . and also that] they both raped her.” Kenny Smith, a first cousin to Randy Smith, related a similar incriminating statement made to him by Warnell Jones.

The trial court eliminated the charge of theft by taking (Count 5) from consideration by the jury. As to the remaining five counts, the jury found each defendant guilty of kidnapping with bodily injury, rape, aggravated sodomy, armed robbery, and terroristic threats. Defendants’ motions for new trial were denied, and a timely notice of appeal was filed. Held:

1. Defendants first contend that their custodial statements were admitted in violation of OCGA § 24-3-52. The record shows that in their respective custodial statements, the confessing co-defendant also implicated the other co-defendant by name and act; however, neither defendant took the stand at their joint trial and so were subject to cross-examination.

OCGA § 24-3-52 provides: “The confession of one joint offender or conspirator made after the enterprise is ended shall be admissible only against himself.” “ ‘Every defendant has the right under the Sixth Amendment “to be confronted with the witnesses against him.” Bruton (v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968)) holds that the right of confrontation is violated when several co-defendants are all tried jointly, one defendant’s confession is used to implicate another defendant in the crime, and the confessor does not take the stand. The result is that the [accusing] co-defendant cannot be cross-examined by the non-confessing [co-] defendant. . . .’ United States v. Espinoza-Seanez, 862 F2d 526, 533-534 (5th Cir. 1988).” McDonald v. State, 210 Ga. App. 689, 690 (2) (436 SE2d 811). However, the Supreme Court of the United States has since held that “even though a co-defendant’s confession is admitted at a joint trial in violation of Bruton, supra, that error may be harmless. Schneble v. Florida, 405 U. S. 427 [(92 SC 1056, 31 LE2d 340)].” Baker v. State, 238 Ga. 389, 391 (2), 392 (233 SE2d 347). Consequently, the introduction of so-called interlocking confessions may render harmless any error in admitting the unredacted incriminating statement of a non-testifying co-defendant. Tatum v. State, 249 Ga. 422, 423 (1), 424 (291 SE2d 701). This is because “ ‘the incriminating statements of a co-defendant will seldom, if ever, be of the “devastating” character referred to in Bruton when the incriminated defendant has admitted his own guilt. . . .’ [Parker v. Randolph, 442 U. S. 62, 73 (99 SC 2132, 60 LE2d 713)].” Tatum v. State, 249 Ga. 422, 424, supra.

In the case sub judice, each defendant’s own custodial statement admits his own participation in the original plan to commit armed robbery which escalated into kidnapping with bodily injury, repeated rape, aggravated sodomy, and terroristic threats. In addition, that objectionable portion of each statement implicating the other co-defendant is cumulative of separate evidence that defendants bragged about their violent spree to Randy Smith and Kenny Smith. “ ‘[T]he defendant’s own confession [is] “probably the most probative and damaging evidence that can be admitted against him[.]” . . . The defendant is “the most knowledgeable and unimpeachable source of information about his past conduct,” . . . and one can scarcely imagine evidence more damaging to his defense than his own admission of guilt. . . .’” Tatum v. State, 249 Ga. 422, 423 (1), 424, supra. In the case sub judice, the probative and damaging confessions render it highly probable that the introduction of the respective co-defendant’s custodial statements implicating the other did not infect the verdicts. Consequently, any error under OCGA § 24-3-52 was plainly harmless. Bell v. State, 239 Ga. 146, 148 (1), 150 (236 SE2d 47); Baker v. State, 238 Ga. 389, 391 (2), 392, supra; Cochran v. State, 177 Ga. App. 471 (1), 472 (339 SE2d 749). See also Gallman v. State, 127 Ga. App. 849, 852 (4) (195 SE2d 187), where, even in the absence of a timely objection to the erroneous procedure of reading unredacted confessions of one co-defendant, the statements of the confessing co-defendant were held to have no probative value against the non-confessing co-defendant pursuant to OCGA § 24-3-52.

Decided May 8, 1995.

Jack B. Williamson, Jr., for appellants.

Rene J. Martin III, District Attorney, Martha C. Kirkland, Assistant District Attorney, for appellee.

2. Defendants also contend the evidence of venue is insufficient because the State “produced no evidence to show that the crime(s) took place in the State of Georgia, and certainly not in a specific county within the State.”

“Generally, criminal actions must be tried in the county where the crime was committed. OCGA § 17-2-2 (a). And, venue must be established beyond a reasonable doubt. Adsitt v. State, 248 Ga. 237 (282 SE2d 305) (1981). However, when the evidence is not conflicting and when no challenge to venue is raised at trial, slight evidence is sufficient to prove venue. Jones v. State, 245 Ga. 592 (266 SE2d 201) (1980).” Minter v. State, 258 Ga. 629 (1) (373 SE2d 359). “Venue for the prosecution of kidnapping with bodily injury lies in the county where the victim was seized, even though the bodily injury may have been inflicted in a different county. Potts v. State, 261 Ga. 716, 720 (2) (410 SE2d 89).” Cornelius v. State, 213 Ga. App. 766, 767 (1), 768 (445 SE2d 800).

In the case sub judice, the evidence showed that the offense of kidnapping with bodily injury was initiated at the victim’s place of employment, at the intersection of Old Register Road and Highway 46. Members of the Bulloch County Sheriff’s Department investigated the victim’s complaint, authorizing the inference that the repeated references to streets, addresses, and families in Statesboro means they acted within their jurisdiction, Bulloch County, Georgia. Hunter v. State, 191 Ga. App. 219, 220 (381 SE2d 525). In the absence of conflicting evidence, these circumstances are sufficient to establish venue in Bulloch County. Minter v. State, 258 Ga. 629 (1), 630, supra. This enumeration is without merit.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Ruffin, Judge. Beasley, Chief Judge,

text:
    A95A0079.
    GRIER v. THE STATE.
    (458 SE2d 139)
   Ruffin, Judge.

Vanessa Grier appeals from her conviction of possession of cocaine in violation of the Georgia Controlled Substances Act.

The record shows that Grier was visiting her boyfriend, Rodney Benton, at the Newton County Detention Center and brought a package containing toiletries for his cellmate, Larry Baines. An officer inspected the package and found a straw containing what was later identified as cocaine embedded in a tube of toothpaste. Grier was thereafter arrested.

At trial, Grier maintained that she did not know the toothpaste tube contained cocaine. She testified that Baines had called and asked her to bring him certain toiletries and that later that night she found a paper bag containing the toothpaste on her sofa. Grier stated she did not know who put the bag on her sofa; that it was during the summer when she left her door wide open; and that anyone could have come in the door and placed it there.

1. Grier contends the trial court erred in refusing to charge the jury on circumstantial evidence pursuant to OCGA § 24-4-6. Grier argues that since the State relied on circumstantial evidence to prove she knew the toothpaste tube contained cocaine and she requested the charge, the court was required to give it. Under Mims v. State, 264 Ga. 271 (443 SE2d 845) (1994), trial courts are required to charge the principles under OCGA § 24-4-6 “in circumstances where the case includes both direct and circumstantial evidence and the defendant has requested a charge on circumstantial evidence.” Id.

While we agree with Grier that her alleged lack of intent formed a major part of her defense and that the State relied on circumstantial evidence in proving intent, we do not agree that she properly requested the court to charge the jury under OCGA § 24-4-6. Rather, Grier requested that the court give a “two theories” charge, which “did not constitute a request for a charge on circumstantial evidence. . . .” Kelly v. State, 212 Ga. App. 278, 282 (2) (442 SE2d 462) (1994). See also Roura v. State, 214 Ga. App. 43 (2) (447 SE2d 52) (1994).

Furthermore, the court instructed the jury concerning the differences between direct and circumstantial evidence and further charged that “[t]he comparative weight of circumstantial evidence and direct evidence on any given issue is a question of fact for the jury to decide.” In light of the conflict and confusion among both trial and appellate courts as to what constitutes direct or circumstantial evidence in any given case, as well as when a charge on circumstantial evidence is required, and the further difficulty juries surely must face in understanding the language in OCGA § 24-4-6, we believe the instructions given in this case clearly informed the jury on how it should consider circumstantial evidence and that such a charge should be given in all cases where the major or sole defense is dependent on circumstantial evidence, even in the absence of a request. Although the law does not currently require such a charge, as our Supreme Court noted in Mims, “[virtually every case contains some circumstantial evidence. . . . The charge is a fundamental principle of law as to criminal guilt and there is no reason not to give it; the state is not harmed by it and has no right to have it omitted.” (Citation and punctuation omitted.) Mims, supra at 272, n. 2.

While the court in Mims considered a charge on circumstantial evidence under the language of OCGA § 24-4-6, such language likely only confuses the average juror and should be abolished. See Roura, supra. Nonetheless, as the court stated in Mims, charges concerning circumstantial evidence do address fundamental principles of law, and there is no reason not to give them. Accordingly, while we do not believe the language of OCGA § 24-4-6 should be required or even given in all cases where the major or sole defense is dependent on circumstantial evidence, we do believe that a charge which in a comprehendible manner explains to a jury how it should consider circumstantial evidence should be required in all such cases.

To the trial judge’s credit in this case, he instructed the jury on how to consider circumstantial evidence, even though he was not required to do so. Although we believe these instructions properly charged the jury on circumstantial evidence, under existing precedent if Grier wanted a further instruction under OCGA § 24-4-6, she was required to request it, which she clearly did not do. Since a proper request was not made, we find no error. See Kelly, supra at 282.

2. Grier also contends the trial court erred in failing to grant a mistrial after the State presented evidence of a similar transaction without notice to the defense and in failing to conduct a hearing on the admissibility of the alleged similar transaction. During direct and cross-examination, Grier testified that Benton never asked her to bring drugs to him while he was in jail and that if he did, she would not do so. In rebuttal, the State called Baines who indicated that on a previous occasion Grier had delivered drugs to a man living across the street from the jail who in turn delivered them to Benton. Grier’s attorney, without objecting to the rebuttal testimony, proceeded to cross-examine Baines “in an effort to discredit his . . . statement, and later moved for a mistrial. The failure to object or move for a mistrial when the testimony was introduced was a waiver of this claim. [Cits.]” Ahmed Al-Beti v. State, 210 Ga. App. 312, 313 (2) (436 SE2d 50) (1993). Moreover, “[t]he rule requiring prior disclosure of the State’s intent to introduce evidence of a similar transaction in a criminal trial does not prevent the state from offering such evidence for impeachment purposes. [Cits.]” Willis v. State, 193 Ga. App. 659, 661 (4) (388 SE2d 869) (1989). Since a timely objection was not made and the rebuttal testimony was offered to impeach Grier’s testimony, we find no error.

Decided May 9, 1995.

J. Ellis Millsaps, for appellant.

Alan A. Cook, District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur fully in Division 2. With respect to Division 1, I agree that no reversible error occurred. The failure to charge the principle contained in OCGA § 24-4-6 did not constitute such an omission that Grier was deprived of a fair trial. See Roura v. State, 214 Ga. App. 43, 47 (2) (b) (2) (447 SE2d 52) (1994); Stubbs v. State, 215 Ga. App. 873, 876 (1) (452 SE2d 571) (1994) (Beasley, P. J., concurring specially); Yarn v. State, 215 Ga. App. 883, 886 (452 SE2d 537) (1994) (Beasley, P. J., concurring specially).

The court gave the “Direct and Circumstantial Evidence” charge set out in Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2d ed.), pp. 11-12, except the court omitted “or both” from the first paragraph and deleted the fourth paragraph entirely. That fourth paragraph is a verbatim recitation of OCGA § 24-4-6 except the paragraph adds the word “above.”

I agree that the court’s charge in this case should be given as our opinion urges.


author: Ruffin, Judge.

text:
    A95A0659.
    WELCH v. THE STATE.
    (457 SE2d 829)
   Ruffin, Judge.

Lonnie Welch was convicted by a jury of possession of cocaine with intent to distribute in violation of the Georgia Controlled Substances Act. Welch appeals from the judgment of conviction and denial of his motion for new trial.

The evidence at trial showed that on the afternoon of Welch’s arrest, Eatonton police received an anonymous telephone call indicating an individual named “Dolly Foo Foo” was selling drugs in a bar called the Sunset Club. The chief of police, who knew Dolly Foo Foo was an alias of Welch, responded to the call and drove to the Sunset Club. As he approached the Sunset Club, which was located in an area known for crime and drug activity, the police chief saw Welch exiting the bar. As Welch walked across the parking lot and down the street, the police chief followed in his patrol car. The police chief testified that when Welch turned onto a path, “I had done got pretty close up on him. I pulled right in between the Sonny Boy’s Club and the branch and hollered out the window and we went up the path. I went up the path with the car. I said Foo Foo. He immediately turned around. His right hand came out of his right pocket and a white object left his right arm and went landing into the bushes. At that time, I told him to put his hands on the hood of the car and called for [another officer to come to the scene].” When the other officer arrived, he retrieved the white object, a white pill bottle containing 33 rocks of suspected cocaine. The officer arrested Welch and found $310.37 in small bills in his pocket. The substance in the pill bottle subsequently tested positive for cocaine.

1. Prior to trial, Welch moved the court to suppress all evidence of the cocaine, arguing it was the product of an unlawful search and seizure. In his first enumeration of error, Welch contends the trial court erred in denying the motion. Welch argues that since the anonymous telephone tip was insufficient to justify his initial stop, the cocaine that was obtained as a result of that stop should have been suppressed. However, in this case we need not determine the sufficiency of the anonymous telephone tip because the cocaine was not discovered as a result of a seizure of Welch, unlawful or otherwise.

“That police receive information which does not amount to probable cause does not require them to shrug their shoulders and make no inquiry, but rather the circumstances may justify investigation. [Cit.]” State v. Smalls, 203 Ga. App. 283, 286 (2) (416 SE2d 531) (1992). “The police can be said to have seized an individual only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. . . . [P]olice officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some question or by putting questions to him if he is willing to listen.” (Citations and punctuation omitted.) United States v. Maragh, 894 F2d 415, 418 (1) (D.C. Cir. 1990). In determining whether the police have seized a citizen, we must look “to such factors as whether the officers displayed weapons, were physically intimidating or threatening, or approached the citizen at an unusual place or time. [Cits.]” Id. at 418.

In this case, there is no evidence that police seized Welch prior to the time he threw the cocaine to the ground. Welch does not contend he believed he was not free to leave. The police chief did not display any weapons, did not conduct himself in an intimidating or threatening manner, and the encounter took place in public during daylight hours. The only conduct that precipitated Welch throwing the cocaine to the ground was the police chief calling out the name “Foo Foo.” “As for the substance identified as cocaine, [Welch] affirmatively abandoned it by throwing it [to the ground] as the [police chief]-approached, thereby placing it within plain view. . . .” State v. Howell, 180 Ga. App. 449, 451 (349 SE2d 476) (1986). See also Anderson v. State, 209 Ga. App. 676 (434 SE2d 122) (1993). Accordingly, “the evidence was not the fruit of a seizure, legal or illegal, and [was] admissible. [Cit.] Thus, the trial court did not err in denying [Welch’s] motion to suppress.” Id. at 677.

Decided May 9, 1995.

Lawrence & Ford, Francis N. Ford, for appellant.

Joseph H. Briley, District Attorney, Wilson B. Mitcham, Jr., As sistant District Attorney, for appellee.

2. Welch also asserts the trial court erred in admitting into evidence the entire contents of the bottle when only one of the thirty-three pieces was analyzed for the presence of cocaine. Welch argues that since the other 32 pieces of suspected cocaine were not analyzed, they were not relevant to the case. “ ‘Admission of evidence rests in the trial court’s sound discretion; and evidence should be admitted if it is admissible for any legitimate purpose.’ ” Stevens v. State, 213 Ga. App. 293, 295 (3) (444 SE2d 840) (1994). In this case, “[i]t was not necessary for the State to prove that each of the tan chunks seized contained cocaine. . . . The State introduced evidence that [a random sample was] taken in accordance with [GBI] laboratory standard operating procedures and that the [sample was] found to [contain] cocaine.” Means v. State, 188 Ga. App. 210, 211 (372 SE2d 484) (1988). From this evidence, “[t]he jury could reasonably infer that all the chunks contained cocaine. [Cits.]” Id. Accordingly, there was no error in the admission of this evidence.

3. Finally, citing Edge v. State, 261 Ga. 865 (2) (414 SE2d 463) (1992), Welch contends the trial court erred in instructing the jury that before it could consider the lesser included offense of possession of cocaine, it had to reject the greater offense of possession of cocaine with intent to distribute. However, “the sequential charge disapproved in Edge is specific to the context of felony murder and voluntary manslaughter.” Kirk v. State, 210 Ga. App. 440, 444 (2) (436 SE2d 553) (1993). “ ‘The charge given [in this case] properly informed the jury that it should first consider the offense as charged, and if it had a reasonable doubt as to the offense charged, then it could consider the lesser offense. [Cit.] Only by such a procedure can justice be done to each party to the proceeding. There is no error in the charge of the court.’ [Cits.]” (Punctuation omitted.) Henderson v. State, 191 Ga. App. 275, 277 (2) (381 SE2d 423) (1989).

Judgment affirmed.

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


author: Beasley, Chief Judge.

text:
    A95A0325.
    GARRETT v. GEORGIA HIGHER EDUCATION ASSISTANCE CORPORATION.
    (457 SE2d 677)
   Beasley, Chief Judge.

Georgia Higher Education Assistance Corporation, as assignee of Barnett Higher Education Loan Program, filed a complaint on a note against Garrett in a state court, seeking the principal sum of $2,949.05, interest, collection costs pursuant to 20 USCA § 1091a (b) (1), and court costs.

Defendant, by counterclaim, sought $5,700,000 in damages for libel, slander, and perjury by causing her to be served with this allegedly frivolous lawsuit. Plaintiff moved to dismiss the counterclaim because: (1) it is barred by certain exceptions and limitations in the Georgia Tort Claims Act, and (2) allegations in pleadings are privileged. The court granted the motion and dismissed the counterclaim with prejudice, after which plaintiff dismissed its complaint without prejudice.

1. The court was not required to give legal or factual reasons for dismissing appellant’s counterclaim. See OCGA § 9-11-52; Walker v. Walker, 238 Ga. 273, 274 (1) (232 SE2d 554) (1977).

2. The counterclaim is not barred by the Tort Claims Act, OCGA § 50-21-1 et seq., which constitutes the exclusive remedy for any tort committed by a state officer or employee. OCGA § 50-21-25 (a). A complainant under the Tort Claims Act must name as party defendant only the state government entity for which the state officer or employee was acting. OCGA § 50-21-25 (b).

Plaintiff Georgia Higher Education Assistance Corporation maintains that the counterclaim is a suit subject to the Tort Claims Act, but under OCGA § 50-21-22 (7), a corporation cannot be a “state officer or employee,” and plaintiff is not one of the state government entities referred to in OCGA § 50-21-22 (5).

3. Nonetheless, dismissal was not error.

OCGA § 51-5-8 provides: “All charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous.”

First, we reject defendant’s argument that plaintiff’s complaint was not filed in a court of competent jurisdiction because the note is a federally funded student loan governed by federal law. The claim for sums due under the note is governed by Georgia law, which defendant recognizes by arguing that plaintiff’s rights as a holder of the note are subject to the Georgia Commercial Code. Although federal law controls collection costs, the state court has inherent authority and thus is presumptively competent to adjudicate this issue, Yellow Freight System v. Donnelly, 494 U. S. 820, 823 (110 SC 1566, 108 LE2d 834) (1990). This is illustrated in Collins v. Dept. of Transp., 208 Ga. App. 53, 54 (429 SE2d 707) (1993). Defendant has not shown exclusive federal jurisdiction by affirmative congressional divestment of state jurisdiction. Donnelly, supra. As to the general subject matter, the court was authorized to adjudicate it. OCGA § 15-7-4 (2).

Decided May 3, 1995

Reconsideration denied May 10, 1995

Patricia K. Garrett, pro se.

Michael J. Bowers, Attorney General, Dennis R. Dunn, Senior Assistant Attorney General, Rebecca S. Mick, Assistant Attorney General, Macey, Wilgnsky, Cohen, Wittner & Kessler, Robert A. Winter, for appellee.

Second, the allegation that plaintiff caused appellant to be served with a frivolous lawsuit does not state a claim for either libel or slander. See Garrett v. DeWorken, 148 Ga. App. 656, 657 (252 SE2d 81) (1979); see also Household Finance Corp. of Ga. v. Gilley, 167 Ga. App. 195 (1) (306 SE2d 85) (1983). Nor does it state a claim for perjury, which is a crime committed by one who knowingly and wilfully makes a materially false statement under oath. King v. State, 238 Ga. 386 (233 SE2d 340) (1977). The complaint is not sworn.

For these reasons, the counterclaim could not proceed, and the court properly dismissed it. OCGA § 9-11-12 (b) (6). See generally Grant v. Fourth Nat. Bank of Columbus, 229 Ga. 855, 859 (1) (194 SE2d 913) (1972).

4. Dismissal of the complaint without prejudice following the court’s dismissal of the counterclaim was authorized by OCGA § 9-11-41 (a) and thus did not violate any rights of defendant.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: McMurray, Presiding Judge. Smith, Judge,

text:
    A94A2516, A94A2517.
    A94A2518, A94A2519.
    BANCA NAZIONALE DEL LAVORO v. UNDERWRITERS OF LLOYD’S et al. (two cases). BANCA NAZIONALE DEL LAVORO v. LLOYD’S UNDERWRITERS NONMARINE ASSOCIATION et al. (two cases).
    (458 SE2d 142)
   McMurray, Presiding Judge.

These four appeals arise from two cases and one judgment below. The controversy in both superior court cases involves essentially the same parties and issues. (Apparently the plaintiffs Underwriters of Lloyd’s in the declaratory judgment action are the same parties as the individually named defendants in the damage action, and they shall be referred to collectively as Lloyd’s.) In one superior court action, plaintiff Underwriters of Lloyd’s sought a declaratory judgment that it has no obligation under an insurance policy (alternatively referred to as a bond) issued to Banca Nazionale del Lavoro (“BNL”), an Italian bank. Also named as defendants in the declaratory judgment action along with BNL are ten former employees of the Atlanta branch of BNL. BNL answered the complaint in the declaratory judgment action and filed its counterclaim seeking the full value of the insurance policy plus an additional amount for bad faith refusal to pay.

In the second superior court action, BNL’s complaint sought a recovery under the insurance policy at issue plus an additional amount for bad faith refusal to pay its claim, naming as defendants the four individual Lloyd’s underwriters obligated by the insurance policy. Lloyd’s answered and joined the ten former employees of BNL as third-party defendants.

The controversy involves the fidelity coverage afforded by the policy in regard to employees of certain branches of BNL located in the United States. BNL has filed a proof of loss asserting that employees of its Atlanta branch acted dishonestly, exceeded lending limits, and otherwise improperly committed the bank via unauthorized loans and credit extensions, and that these actions resulted in losses to the bank greatly exceeding the policy limits, as well as financial benefit to the employees. Lloyd’s has refused to pay the claim, relying upon a policy provision which provides that: “This bond terminates as to any Employee ... as soon as any Insured, or any director or officer not in collusion with such person, learns of any dishonest or fraudulent act committed by such person. ...” Lloyd’s maintains that the fidelity provisions were void ab initio since officers and employees of BNL outside of the Atlanta branch knew or should have known of the dishonest activities of the Atlanta branch employees before the policy was issued.

In both actions, Lloyd’s moved for partial summary judgment against BNL on its bad faith claim. Lloyd’s also moved in both actions for summary judgment against BNL on all issues. These motions for partial summary judgment and for summary judgment were considered jointly, and following a hearing, all were granted. Duplicate notices of appeal were filed by BNL in each superior court case so that Case Nos. A94A2516 and A94A2517 are the same appeal taken from the judgment in the declaratory judgment action. Case Nos. A94A2518 and A94A2519 are also the same appeal taken from the judgment in the action for damages.

In BNL’s brief on appeal, it has apparently abandoned the claims for additional sums predicated upon Lloyd’s alleged bad faith refusal to pay. BNL notes that the superior court has rejected the bad faith claim and states that “BNL does not appeal the dismissal of the bad faith claim.” Although this concession is somewhat obscured by being placed on the third page of the brief in a paragraph containing no references to the motions granted by the superior court, but only references to a motion for partial summary judgment in the action for damages which was never explicitly ruled upon, the plain language of BNL’s statement is not subject to misinterpretation. Pursuant to this concession, the grant of partial summary judgment on the bad faith claims must be affirmed and the grant of summary judgment in favor of Lloyd’s on all issues must be at least partially affirmed as to this issue. Held:

We need not address most of the arguments presented by the parties in order to conclude that the grant of summary judgment in favor of Lloyd’s must be reversed as to all issues which remain following BNL’s abandonment of the bad faith claim. The policy provision, quoted above, upon which Lloyd’s relies to terminate its obligation does not relate to the former employees of the Atlanta branch of BNL collectively but instead as individuals. If the policy is terminated under this provision as to one employee, the question remains as to whether it continues to provide coverage in regard to other employees. Ten former employees of the Atlanta branch of BNL are alleged to have participated in the dishonest actions which resulted in BNL’s loss. However, when we look to the evidence supposedly demonstrating BNL’s knowledge of dishonesty or fraudulent acts on the part of Atlanta branch employees such as would terminate the policy, we find no connection between this evidence and most of the named employees. While the record on appeal is quite voluminous, the hearing before the superior court focused upon a limited number of transactions and the superior court identified three particular documents as relating to the grant of Lloyd’s motions. Yet, few if any of the Atlanta branch employees can be identified as being associated with or having any part in the incidents or transactions underlying these documents. Nor is there evidence that an inquiry concerning these, nor other, transactions or incidents would reveal dishonesty on the part of all of the bank’s Atlanta branch employees. Neither the evidence emphasized at the motion hearing nor any other referenced on this appeal, or discovered via our examination of the record, would terminate coverage as to all of the employees. As the bank’s claim is predicated on losses allegedly caused by the dishonesty of a large number of employees and the evidence does not establish that the policy was terminated as to each such employee, there remains the possibility of a recovery on the policy by the bank demonstrating a loss caused by an employee as to whom the policy was not terminated.

Lloyd’s, as movant, had the burden to show there is no genuine issue as to any material fact and that it was entitled to a judgment as a matter of law. In ruling on a motion for summary judgment, the superior court should construe the evidence and all inferences and conclusions most favorably toward the party opposing the motion. Williams v. Food Lion, 213 Ga. App. 865 (1) (446 SE2d 221); Miller v. Rieser, 213 Ga. App. 683, 687 (1) (446 SE2d 233); Gynecologic Oncology, P.C. v. Weiser, 212 Ga. App. 858 (1) (443 SE2d 526); Green v. Johnston Realty, 212 Ga. App. 656, 657 (1) (442 SE2d 843). Lloyd’s having failed to satisfy its burden as movant, the grant of summary judgment in favor of Lloyd’s on issues other than the bad faith claim was error.

Judgments affirmed in part and reversed in part.

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

Smith, Judge,

concurring specially.

1. Because BNL does not appeal the dismissal of the bad faith claim, I agree with the majority’s affirmance of the grant of summary judgment in favor of Lloyd’s on this claim in both the declaratory judgment action and the damages action.

2. I also agree with the majority that summary judgment was inappropriate as to the remaining issues. However, I cannot agree with the analysis relating to these issues in the majority opinion. In my view, the exact meaning of § 12 of the policy is not clear. Its construction, therefore, was a question for the court. OCGA § 13-2-1. The record contains no indication of how the trial court construed § 12.

However, resort to our own construction of § 12 of the policy is not necessary in order to arrive at the conclusion that summary judgment was improperly granted as to the remaining issues. In this casé, which involves one of the largest bank frauds in history, the voluminous record is replete with factual disputes. Most of these involve the issue of whether, and if so, when, BNL had knowledge that its employees in Atlanta were dishonest. That issue is material both to BNL’s claim on the policy and to Lloyds’s defense. It must be resolved by a jury.

The three pieces of evidence upon which the trial court’s judgment primarily rested — the BSI telex, the auditor’s note, and the “Porzio memorandum” — are insufficient to support a grant of summary judgment. “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. [Cits.] The cardinal rule of the summary [judgment] procedure is that the court can neither resolve facts nor reconcile the issues but only look to ascertain if there is an issue. [Cit.]” Daniel v. Bank South Corp., 183 Ga. App. 274, 277 (358 SE2d 664) (1987).

Decided May 10, 1995.

King & Spalding, Walter W. Driver, Jr., Richard A. Schneider, for appellant.

Phillips & Reid, Brendan F. Flanagan, for appellees.

Here, differing inferences and conclusions may be drawn, and were in fact drawn, by the parties from the facts surrounding each of these exhibits. The trial court improperly resolved these conflicts in favor of Lloyd’s. Only a jury may do that.

Because I agree that the trial court’s grant of summary judgment in favor of Lloyd’s on the remaining claims must be reversed, I concur in the judgment of the majority.

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