text:
    A98A2321.
    THOMAS v. McCLURE.
    (513 SE2d 43)
   Pope, Presiding Judge.

Robert Thomas was a passenger in a car driven by Bobby McClure when the car collided with another vehicle. Thomas was injured in the collision and was treated at Tanner Medical Center from April 15, 1994, until his discharge on April 28, 1994. On May 31, 1994, Tanner Medical filed in court a verified statement for hospital lien showing that Thomas owed $13,397 for hospital care.

Thereafter, Thomas sued McClure for damages arising from the collision. McClure was not insured and Thomas eventually reached a settlement with his own uninsured motorist carrier, Southern General Insurance Company, for $15,000. Pursuant to a court order, Southern General paid the funds into the court registry. Tanner Medical then moved to intervene, claiming that pursuant to its hospital lien it was entitled to payment from the settlement proceeds paid into court. Thomas challenged the claim, arguing that the hospital had not timely perfected its lien.

The trial court ruled in favor of Tanner Medical and awarded the hospital $8,681 of the money deposited into the court’s registry. The court later entered a default judgment in favor of Thomas against McClure. Thomas appeals from the final judgment, challenging the court’s findings that Tanner Medical perfected a valid hospital lien and is entitled to money held in the court registry. We affirm the court’s judgment.

1. Thomas claims the trial court should have ruled that Tanner Medical’s lien is unenforceable because it was filed 33 days after his discharge from the hospital and thus did not comply with the 30-day filing period set forth in OCGA § 44-14-471. Contrary to Thomas’ claim, Tanner Medical’s delayed filing does not render its .lien unenforceable.

The existence of a hospital lien is established by OCGA § 44-14-470 (b), which provides: “Any person, firm, hospital authority, or corporation operating a hospital ... in this state shall have a lien for the reasonable charges for hospital . . . care and treatment of an injured person, which lien shall be upon any and all causes of action accruing to the person to whom the care was furnished ... on account of injuries giving rise to the causes of action and which necessitated the hospital . . . care, subject, however, to any attorney’s lien. . . .” Under this Code section, Tanner Medical has a valid lien for the reasonable charges for the care it provided to Thomas as a result of his injuries from the accident. The lien is enforceable against any cause of action that Thomas has on account of his injuries from the accident.

The method for perfecting such an existing lien is set forth in OCGA § 44-14-471: “In order to perfect the lien provided for in Code Section 44-14-470, the operator of the hospital, within 30 days after the person has been discharged therefrom, shall file in the office of the clerk of the superior court of the county in which the hospital is located and in the county wherein the patient resides, if a resident of this state, a verified statement setting forth the name and address of the patient as it appears on the records of such hospital; the name and location of the hospital and the name and address of the operator thereof; the dates of admission and discharge of the patient therefrom; the amount claimed to be due for the hospital care; and, to the best of the claimant’s knowledge, the names and addresses of all persons, firms, or corporations claimed by the injured person or the legal representative of the person to be liable for damages arising from the injuries. Such claimant shall also, within one day after the filing of the claim or lien, mail a copy thereof to any person, firm, or corporation claimed to be liable for the damages, said copy to be mailed to the address given in the statement. The filing of the claim or lien shall be notice thereof to all persons, firms, or corporations liable for the damages, whether or not they are named in the claim or lien.”

There is no question that Tanner Medical was late in filing its lien 33 days after Thomas was discharged. However, in Macon-Bibb County Hosp. Auth. v. Nat. Union Fire Ins. Co., 793 FSupp. 321 (M.D. Ga. 1992), the federal district court ruled that an untimely hospital lien, also filed 33 days after the injured person was discharged, was nevertheless valid and enforceable. The court reasoned that the liable insurance company in that case had actual notice of the hospital lien and “[t]hus, the purpose of the perfection statute — that ‘the filing of the claim or lien shall be notice’ to all liable parties — was accomplished.” Id. at 323 (2). Likewise, in the instant case it is undisputed that both Thomas and his insurer, Southern General, had actual notice of Tanner Medical’s lien.

The district court in Macon-Bibb Hosp. Auth. also noted that the hospital lien statute is unlike the mechanics lien statute, which expressly requires strict compliance with its filing time period so that a lien filed after expiration of the period is unenforceable. There is no comparable language of strict compliance in the hospital lien statute. Id. at 324 (2). The court therefore concluded that the hospital in that case was entitled to enforce its untimely lien. “The lien was created at the moment the Hospital began treating [the injured party], and the Hospital’s failure to strictly comply with the filing requirements does not affect the validity of the lien.” Id. at 325 (2).

Although we are not bound by the district court’s opinion, we find its reasoning to be sound and persuasive. Accordingly, we conclude that Tanner Medical’s lien was created when it began treating Thomas, and the hospital’s lack of strict compliance with the perfection statute by filing its verified statement three days late does not render the lien unenforceable, particularly in light of the fact that the liable parties had actual notice of the lien and were not prejudiced by the late filing. The trial court therefore did not err in enforcing the lien.

2. Thomas contends the trial court erred in ruling that Tanner Medical can enforce its lien against the money paid by his uninsured motorist carrier. The contention is without merit. OCGA § 44-14-470 (b) provides that a hospital lien “shall be upon any and all causes of action accruing to the person to whom the care was furnished ... on account of injuries giving rise to the causes of action and which necessitated the hospital . . . care. . . .” Here, Thomas’ uninsured motorist claim accrued to him on account of his injuries from the accident and for which he was treated at Tanner Medical. Consequently, the hospital’s lien shall be upon the money paid into the court registry pursuant to Thomas’ uninsured motorist claim. See generally Chatham County Hosp. Auth. v. Barnes, 226 Ga. 508 (175 SE2d 854) (1970) (hospital may collect uninsured motorist proceeds). The trial court correctly enforced the lien against the money in the court registry.

3. Thomas enumerates that the trial court erred in ruling that the hospital should be paid for its services before Thomas himself is wholly compensated for his injuries. Thomas has not complied with Court of Appeals Rule 27 (a) (1) by stating how this enumeration of error was preserved for appellate consideration. Thomas has made no reference to the record showing where this argument was raised in, and ruled upon by, the trial court. The argument does not appear in Thomas’ trial brief opposing Tanner Medical’s request to intervene and enforce its lien, and the issue is not mentioned in the trial court’s written order granting the hospital’s request. “This court will not speculate as to such matters. [Cit.] Further, this issue is not ripe for appellate adjudication. [Cit.]” Ramsey v. Sumner, 211 Ga. App. 202, 205 (5) (438 SE2d 676) (1993).

Decided February 23, 1999.

Jack F. Witcher, Ana M. Rountree, for appellant.

Tisinger, Tisinger, Vance & Greer, Glenn M. Jarrell, Kenneth B. Crawford, for appellee.

Judgment affirmed.

Beasley, P. J., and Ruffin, J., concur.

       The rest of the $15,000 was awarded to Thomas’ attorney to cover his fees and expenses.

       Thomas filed two prior appeals in this case that were dismissed. The case is now properly before us as an appeal from a final judgment.


source: Caselaw Access Project

author: Andrews, Judge. Beasley, Presiding Judge,

license: Public Domain

text:
    A98A2432.
    HEARD v. THE STATE.
    (513 SE2d 35)
   Andrews, Judge.

Roger Heard was found guilty by a jury of possession of cocaine with, intent to distribute. Heard’s sole enumeration of error on appeal is that the trial court erred in going forward with the trial at which he proceeded pro se without determining whether he voluntarily and knowingly waived his right to counsel.

After being arrested on the present offense on October 31, 1995, Heard was initially represented by retained counsel when he obtained a pretrial bond at a hearing on November 10, 1995. Heard was subsequently indicted on September 10, 1996. On November 13, 1996, Heard appeared pro se when he waived formal arraignment and pled not guilty. At that time, Heard indicated he intended to hire counsel. After Heard failed to appear for trial on May 12, 1997, his bond was forfeited and he was arrested pursuant to a bench warrant. Thereafter, the State provided Heard, acting pro se, with access to discoverable material under OCGA § 17-16-1 et seq. by mailing the material to him at the state prison on August 5, 1997, September 2, 1997, and December 2, 9, and 16, 1997. On September 10, 1997, Heard filed a pro se demand for trial pursuant to OCGA § 17-7-170 during the September 1997 term of the Fayette County Superior Court. On November 25, 1997, the trial court entered an order directing that Heard be delivered from the prison by the sheriff for a trial on January 12, 1998, a date still within the term of court beginning in September 1997.

On January 12, 1998, Heard, acting pro se, was brought to trial before a jury in the Fayette County Superior Court. Heard announced to the trial court that he was unrepresented by counsel. The trial court noted on the record that Heard had informed the court on November 13,1996, that he would hire his own counsel, that since that time he had failed to hire counsel, and that he had failed to apply for court-appointed counsel. The trial court further stated that, because Heard had entered a pro se demand for a speedy trial and indicated to the court that he was going to represent himself, the trial would go forward with Heard proceeding pro se. Heard states on appeal that he indicated prior to trial that his intention was to proceed without counsel, and the State does not contest this assertion.

The evidence in the case was closed before the 12 noon lunch break on the first day of the trial, and the jury returned a guilty verdict after deliberating for about 45 minutes. Heard made no opening statement to the jury, presented no evidence, did not cross-examine any of the State’s witnesses, and made no objections during the trial.

A defendant put on trial for any offense, felony or misdemeanor, for which imprisonment is a penalty, has a constitutional right to counsel which may only be waived by voluntary and knowing action. Callaway v. State, 197 Ga. App. 606, 607 (398 SE2d 856) (1990); Rutledge v. State, 224 Ga. App. 666, 669 (482 SE2d 403) (1997). The trial judge has the duty of determining whether the defendant has voluntarily and knowingly waived the right to counsel and validly elected to exercise the alternative right to proceed pro se. McCook v. State, 178 Ga. App. 276-277 (342 SE2d 757) (1986); Burnett v. State, 182 Ga. App. 539, 540 (356 SE2d 231) (1987). “When waiver of the right to counsel rests upon the defendant’s election of his alternative right of self-representation, The record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.’ Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981).” (Emphasis omitted.) Burnett, 182 Ga. App. at 540. “When the record is silent, waiver is never presumed and the burden is on the state to present evidence of a valid waiver.” Jones v. Wharton, 253 Ga. 82, 83 (316 SE2d 749) (1984); Kirkland v. State, 202 Ga. App. 356, 357-358 (414 SE2d 502) (1991). Since the record contains nothing showing that Heard was made aware of his right to counsel or of the dangers of proceeding without counsel, we are unable to conclude that Heard validly chose to proceed pro se after voluntarily and knowingly waiving his right to counsel.

The trial transcript shows that, acting as his own counsel, Heard failed to do anything at the trial to defend himself against the charges. Although the State presented strong evidence of Heard’s guilt amply sufficient for a rational trier of fact to find him guilty beyond a reasonable doubt, we cannot conclude under these circumstances that the error was harmless. See McCall v. State, 232 Ga. App. 684, 686-687 (503 SE2d 578) (1998); compare McCook, 178 Ga. App. at 277-278, and Rutledge v. State, 224 Ga. App. at 670-671.

Judgment reversed.

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

Beasley, Presiding Judge,

concurring specially.

I concur for the reason that the record does not establish that defendant was aware of the consequences of trial without counsel, trial with self-representation. Waiver of the constitutional right to counsel must be “an intentional relinquishment or abandonment of a known right or privilege. ... [It must be] an intelligent waiver.” In order for the waiver to be intelligent, defendant must be aware of the right to counsel in the first place, which as described below is evident of record. In that regard I differ with the majority opinion. But the right-waiving defendant must also be aware of “the dangers of proceeding without counsel.” As to that, I agree with the majority; there is nothing in the record to show that he understood the consequences of proceeding through a jury trial without professional assistance. The court did not so inform him and, according to the record, he had not been through a trial before. His prior convictions were all based on guilty pleas, so far as I can tell, so he would not have had personal trial experience.

As to his knowledge of the right to appointed counsel, as well as of the nature of the charge, the difference between the offenses of possession and possession with intent to distribute, and the potential penalty, defendant’s prior experience conveyed this to him. Heard had four prior drug convictions, including a recent one on the same charge:

* 1985 drug offense — record does not show whether trial or plea; probation in this 1985 case was revoked in next case, revoked portion to be served concurrent with that next one.

* November 17, 1989 possession of cocaine — guilty plea with appointed counsel entered June 4, 1990. Sentenced to five years, serve six months, balance probated plus fine. (As stated above, court also revoked probation on the 1985 case and permitted service to be concurrent.)

* December 5, 1990 possession of cocaine — guilty plea with appointed counsel entered February 15, 1991. Sentenced to five years, serve three, balance probated. Revoked probation on the 1989-1990 case and permitted service to be concurrent.

* January 18, 1997 possession of cocaine with intent to distribute — negotiated guilty plea with employed counsel entered June 6, 1997. Sentenced to five years to serve.

The current possession with intent to distribute occurred on October 30, 1995, after Heard served time for the 1990 possession and before the 1997 identical offense to which he pleaded guilty in advance of the trial in this instant case. That 1997 identical offense occurred while he was out on bond in this case, two months after he was arraigned pro se in this case and had told the court he would hire an attorney. He failed to appear for trial in this case on May 12, 1997, but a few weeks later pleaded guilty to the identical 1997 charge.

Since at the time of the trial in this case Heard had previously pleaded guilty to the identical charge with counsel, he knew the maximum penalty, the nature of the charge, his right to counsel and other trial rights. This is shown by the guilty plea transcripts, wherein the court so informed him. Background, experience and conduct are particular relevant facts and circumstances in determining whether there is a waiver. In addition, the court did tell the jury in his presence at the very beginning of this trial that every defendant has a right to an attorney but also a right to represent himself and if he chooses to represent himself that should not be held against him. Defendant sat silent.

Heard started out with an attorney in this case, who appeared with him at the commitment hearing and again to set bond. He did not obtain new counsel, although he announced he would, from the date of arraignment November 13, 1996, to time of trial January 12, 1998, even though he was at liberty until about the end of May 1997. He knew enough to insist on a speedy trial by filing a demand for such himself, even citing the applicable statute, OCGA § 17-7-170.

At the time of this trial Heard was 36 years old, had an eleventh grade education, and could read and write. He received discovery from the state. He announced at the call of the case for trial that he was unrepresented by counsel, had previously had counsel, and would represent himself.

It is abundantly evident that Heard knew he had a right to counsel. But there is nothing to show he knew the consequences of proceeding alone. And he took very little active part in defending himself, other than participating in the voir dire, listening, and making a closing argument. After the jury found him guilty, the State offered evidence in aggravation of punishment but Heard had nothing to say and offered no mitigating circumstances. He made no opening statement, although the State did. He did not cross-examine the witnesses or challenge any exhibits, and he did not present any defense or request any jury charge. We do not know the nature of his closing argument because it was not reported. The trial in effect constituted a guilty plea. The court did not make a record to show that the defendant knew about the potential dangers of representing himself at a jury trial.

Decided February 23, 1999.

Saia, Richardson & Meinken, Joseph J. Saia, for appellant.

William T McBroom III, District Attorney, James E. Hardin, Assistant District Attorney, for appellee.

I concur only because the record does not affirmatively show that defendant waived appointed counsel based on a knowledge of all the relevant factors.

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

       Fayette County Superior Court has two terms of court commencing as follows: First Monday in March and second Monday in September. OCGA § 15-6-3 (19) (A).

        Johnson v. Zerbst, 304 U. S. 458, 464-(58 SC 1019, 82 LE 1461) (1937).

        Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981); Rutledge v. State, 224 Ga. App. 666, 670 (3) (482 SE2d 403) (1997).

       This crime occurred six months after he received a five-year sentence with six months to serve.

        Taylor v. Ricketts, 239 Ga. 501, 503 (238 SE2d 52) (1977), citing Johnson v. Zerbst, supra.

       See Rutledge v. State, supra at 669 (3), which recites once again what it is defendant must know in order for the waiver of the right to counsel to be “knowing” and “intelligent.”


author: Judge Harold R. Banke.

text:
    A99A0027.
    CORDIS v. THE STATE.
    (513 SE2d 45)
   Judge Harold R. Banke.

William Walcott Cordis was convicted of aggravated assault on a police officer, obstruction, no proof of insurance, driving without a license, and interference with government property. On appeal, he enumerates four errors.

This case arose while the arresting officer was investigating complaints of a disturbance between two vehicles at the drive-through window of a local fast-food restaurant. The officer was initially informed that both vehicles had left. However, as he was completing some paperwork, an employee pointed out that one of the offending vehicles remained in a nearby parking lot. The officer approached the car, which Cordis was driving, asked for a driver’s license and proof of insurance and noticed an open can of beer on the seat. Cordis emitted a strong odor of alcoholic beverages and his eyes were glassy and bloodshot. After a lengthy search, Cordis produced neither his license nor proof of insurance. When the officer asked Cordis to step out of the car, Cordis appeared to have trouble standing and slurred his speech.

At that point, the officer informed Cordis that he was under arrest for driving under the influence (“DUI”). As Cordis was being handcuffed, he jerked away from the officer and became loud, abusive, and profane. Cordis kicked the officer, refusing to enter the patrol car. The officer radioed for back-up, and it took four officers to shackle Cordis and get him into the patrol car. On the way to jail, Cordis continued his profanity and abuse. Suddenly, the arresting officer heard a loud pop from the back of his patrol car which sounded like Cordis had hit the plexiglass divider behind the officer’s head with the handcuffs. Then the officer felt Cordis’ hands grabbing his shoulder. Cordis had broken the plexiglass. The officer then felt a sharp, stabbing sensation in his shoulder as Cordis poked him with a piece of broken plexiglass. The officer braked as hard as he could, leaving 172 feet of skidmarks, and left the car. After other officers arrived on the scene, Cordis was subdued and transported to jail. The arresting officer received a tetanus shot; the small lacerations he received required no bandaging or other treatment. Held:

1. Cordis argues that the trial court’s refusal to instruct the jury on simple assault requires reversal. But the record shows that the trial court charged the substantially identical language Cordis requested defining simple assault in his request to charge no. 4, which tracked the language of OCGA § 16-5-20 (a).

After deliberations commenced, however, the jury inquired whether the charge could be reduced to assault. The court inexplicably responded in the negative, stating that it “had to find the defendant either not guilty or guilty of aggravated assault.” Notwithstanding the fact that it instructed the jury on simple assault, the court reasoned that its refusal to charge on the lesser included offense precluded a verdict on simple assault. Cordis properly preserved his objection to this decision.

Although simple assault is necessarily a lesser included offense of aggravated assault, trial courts need not authorize juries to enter verdicts on the lesser crime in every case. Prayor v. State, 217 Ga. App. 56, 58 (3) (456 SE2d 664) (1995). Where the evidence of whether an alleged aggravated assault was committed with a deadly weapon is disputed, however, the refusal to give a properly requested charge on assault as a lesser included offense is error. Id.

Here, that issue was clearly disputed, as is reflected by the trial court’s instruction that the jury had to decide whether the plexiglass constituted a deadly weapon. See Banks v. State, 169 Ga. App. 571 (1) (314 SE2d 235) (1984). The jury’s request to reduce the charge to simple assault lends additional credence to the fact that reasonable jurors, looking at the plexiglass and the superficial injuries the officer received, could have found that it was not per se a deadly weapon. Because Cordis was entitled to a simple assault charge, reversal is required on the aggravated assault conviction.

2. Because the remaining enumerations could arise on retrial, we address them. Cordis contends that the trial court erred in refusing to charge on the affirmative defense of resisting an unlawful arrest.

Even before receiving the employee’s report of Cordis’ involvement in the initial disturbance, the arresting officer was entitled to approach and question Cordis. Crosby v. State, 214 Ga. App. 753, 754-755 (449 SE2d 147) (1994). The officer had seen Cordis drive around the restaurant and, upon questioning him, observed the odor of alcoholic beverages, an open container, slurred speech, bloodshot eyes and balance problems. See Hall v. State, 200 Ga. App. 585, 586-587 (1) (409 SE2d 221) (1991). Such evidence provided the requisite probable cause to arrest. Reagin v. State, 218 Ga. App. 733, 735 (1) (463 SE2d 39) (1995); see Atkins v. State, 209 Ga. App. 70-71 (432 SE2d 661) (1993). Cordis’ subsequent acquittal on the DUI and open container charges is irrelevant to the probable cause issue. Reagin, 218 Ga. App. at 735.

3. Cordis contends the trial court erred in refusing to charge on justification. A requested charge must be precisely adjusted to some principle arising in the case and authorized by the evidence. Williams v. State, 221 Ga. App. 147,148 (2) (488 SE2d 708) (1997). Here, the record provided no factual support for the premise that Cordis was justified in using force against the arresting officer. Wagner v. State, 206 Ga. App. 180, 182 (424 SE2d 861) (1992) (the law provides no right to resist a legal arrest). Hearsay statements Cordis purportedly made to the arresting officer provided no factual basis for the requested instructions. Harden v. State, 210 Ga. App. 673, 675 (1) (436 SE2d 756) (1993) (hearsay lacks probative value even if unobjected to).

4. We need not reach the remaining enumeration, which raises the identical issues addressed above.

Decided February 23, 1999.

Stephen T. Smith, for appellant.

Robert E. Keller, District Attorney, Verda Andrews-Stroud, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Smith and Eldridge, JJ, concur.

       It stated in pertinent part, “Plexiglass, if and when used in making an assault . . . upon another person, is not a deadly weapon per se, but may or may not be a deadly weapon depending upon the manner in which it is used in the circumstances of the case. The lethal character of the instrument allegedly used in making an assault may be but need not be inferred from the nature and extent of the injury, if any, inflicted on the person attacked. Whether or not under all the circumstances of this case the plexiglass alleged in this bill of indictment to have been used in making an assault upon the alleged victim did, in fact, constitute a deadly weapon as alleged is a matter to be determined by the jury from the evidence in this case.”


text:
    A99A0144.
    MILES v. THE STATE.
    (513 SE2d 39)
   Judge Harold R. Banke.

Gregory J. Miles was convicted of driving under the influence (“DUI”). He enumerates two errors, both asserting that the admission of evidence of his post-arrest silence when asked to submit to a blood test violated his constitutional rights.

This case arose after local law enforcement established a road block to check insurance cards, licenses and tags on the entrance ramp of an interstate highway. Four patrol cars, with their emergency equipment activated, illuminated the clear, dark night. Around 4:00 a.m., a number of cars pulled onto the ramp. Miles’ car was among them. After he drove onto the ramp, he cut his lights, opened the door and started to walk up the ramp, leaving his car blocking the road.

The arresting officer followed Miles, running to catch up with him. When the officer called out to Miles, instructing him several times to come back, Miles ignored him. Although Miles maintained a swift pace, the officer finally intercepted him and asked why he left. Miles refused to answer, but emitted a “real strong odor” of alcoholic beverages. As the officer walked Miles back down to his vehicle, Miles appeared unsteady on his feet, and refused to answer any questions, such as why he left his vehicle, whether it belonged to him and whether he had a license. Miles’ only response was his name and birth date. From this, the officer concluded that Miles’ speech was slurred. After reaching Miles’ car, the officer read Miles his Miranda rights. Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). When asked if he would perform field sobriety tests, Miles gave no response. The officer then arrested Miles, read him the implied consent warning, and ultimately drove him to a local hospital for a blood test. The officer explained that it was voluntary, but once again Miles refused to respond in any way.

Decided February 23, 1999

Chestney Hawkins Law Firm, Robert W. Chestney, for appellant.

Carmen Smith, Solicitor, Phillip Jackson, Jody L. Peskin, Assistant Solicitors, for appellee.

At trial, Miles unsuccessfully argued that the trial court erred in admitting evidence that he refused to take the blood test, when he was exercising his right to remain silent. Held:

1. Miles maintains that his post-arrest silence when asked to take the blood test is inadmissible because the Miranda warnings he received promised that his silence would not be used against him. Assuming without deciding that this argument is preserved, we disagree.

“A defendant’s refusal to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest is admissible in evidence against him in any criminal trial.” Moore v. State, 217 Ga. App. 536, 537 (1) (458 SE2d 479) (1995). Each defendant who receives the implied consent warning is informed of this fact. OCGA § 40-5-67.1 (b). We see no reason, in the circumstances of this case, why silence in the face of a request to take such a test should be treated any differently than a refusal. Allen v. State, 229 Ga. App. 435, 437-438 (1) (494 SE2d 229) (1997) (A “non-verbal refusal” to take a breath test is admissible). “[T]he choice afforded a suspect under the Implied Consent Statute does not rise to the level of constitutional self-incrimination.” State v. Highsmith, 190 Ga. App. 838, 839 (380 SE2d 272) (1989); accord Buchnowski v. State, 233 Ga. App. 766, 768 (2) (505 SE2d 263) (1998).

Samples v. State, 227 Ga. App. 596 (490 SE2d 172) (1997), does not require a different result. The admission of post-arrest silence when asked to submit to testing was not at issue there. Samples held that a mistrial was not required upon the mere mention of the implied consent warning after the trial court excluded evidence of a mute refusal to take the test. Samples, 227 Ga. App. at 596-597.

2. Miles’ second enumeration is deemed abandoned. Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

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

       Miles was subsequently served with an habitual violator revocation order.

       Miles’ Miranda related argument appears to be limited to the field sobriety tests which are not addressed in his brief.


author: Pope, Presiding Judge.

text:
    A98A2291.
    J. B. HUNT TRANSPORT, INC. et al. v. BROWN.
    (512 SE2d 34)
   Pope, Presiding Judge.

Defendants/appellants J. B. Hunt Transport, Inc. and Kenny M. Kitchens appeal the trial court’s order denying their motion for new trial in this personal injury, truck accident case. The defendants contend the trial court should have granted a new trial because the court erred in admitting an accident reconstructionist’s expert testimony and a computerized animated video illustrating the expert’s opinions and erred in refusing to give certain requested jury charges. The defendants also argue that the damages awarded plaintiff/appellee Jimmy S. Brown were excessive and contrary to the evidence. We disagree and affirm.

1. In their first two enumerations of error, the defendants contend the trial court erred in admitting the opinion testimony of the plaintiff’s accident reconstruction expert and a videotape containing computerized animation illustrating the expert’s opinion of how the accident occurred.

(a) The defendants contend the expert’s opinion testimony should have been excluded because it lacked a sufficient factual basis. Specifically, defendants complain that the expert’s opinion was “rendered irrelevant” because (1) he testified it was possible for the accident to have happened in ways other than expressed in his opinion, (2) that he could not testify with scientific certainty that the accident happened the way he opined, (3) that he did not go to the accident scene, inspect the wrecked vehicles, or interview the drivers, (4) that he did not know how long or how fast the parties had been driving prior to the impact, (5) he did not take into account the weather conditions, and (6) he did not know when the plaintiff first became aware of defendants’ vehicle. All of these factors go to the weight and not to the admissibility of the opinion.

OCGA § 24-9-67 provides that “[t]he opinions of experts on any question of science, skill, trade, or like questions shall always be admissible; and such opinions may be given on the facts as proved by other witnesses.” An expert does not have to view the scene of an accident or interview witnesses to obtain knowledge of the facts. See, e.g., Jones v. Ray, 159 Ga. App. 734, 736 (285 SE2d 42) (1981). Rather, the facts upon which the expert’s opinion is based may be proved by other witnesses or by any other legal means. Loper v. Drury, 211 Ga. App. 478, 481 (1) (b) (440 SE2d 32) (1993); Nat. Trailer Convoy v. Sutton, 136 Ga. App. 760, 765-766 (222 SE2d 98) (1975). In this case, the expert testified that his opinion was based upon the plaintiff’s deposition testimony, the investigating police officer’s report, diagrams of the accident scene drafted by the plaintiff, photographs of the plaintiff’s vehicle, and information regarding the speed of the plaintiff’s truck from its governor. If upon cross-examination it appeared the opinion was based upon inadequate knowledge, this “does not mandate the exclusion of the opinion but, rather, presents a jury question as to the weight which should be assigned the opinion.” (Punctuation omitted.) Jones v. Ray, 159 Ga. App. at 736 (4).

Finally, an expert is not required to prove within a reasonable degree of scientific certainty his opinion of how an accident occurred. With respect to a particular scientific procedure or technique, the trial court makes a determination “‘whether the procedure or technique in question has reached a scientific stage of verifiable certainty,’ based upon evidence, expert testimony, treatises, or the rationale of cases in other jurisdictions. Harper v. State, 249 Ga. 519, 525 (1) (292 SE2d 389) (1982). . . . However, [defendants do] not challenge a particular scientific test or technique employed by [plaintiff’s] experts; [defendants challenge] the conclusions drawn by those experts from testimony and evidence in the record. This determination is for the jury. . . .” (Citation omitted.) Orkin Exterminating Co. v. McIntosh, 215 Ga. App. 587, 593 (4) (452 SE2d 159) (1994). The trial court did not err in admitting the opinion testimony of plaintiff’s expert.

(b) The defendants also contend the court should not have let the jury see a videotape containing computerized animation illustrating the expert’s opinion of how the accident happened because the plaintiff failed to show the animation fairly and accurately represented the way the accident actually occurred. The videotape was not admitted as substantive evidence. It was used solely to illustrate the expert’s opinion of how the accident occurred.

We have long held that various materials — photographs, drawings, blackboards, diagrams, charts, and models — may be used as a means of “pictorial communication” during a trial to illustrate a witness’s testimony. Long v. Serritt, 102 Ga. App. 550, 551 (1) (117 SE2d 216) (1960). When the materials are not introduced into evidence but are used solely to illustrate the testimony of a witness, minimal authentication is generally required. Id.; Vaughn v. State, 173 Ga. App. 716, 718 (6) (327 SE2d 747) (1985) (diagram not to scale); Agnor’s Ga. Evid., § 15-1, pp. 451-452 (3rd ed.). This is because the illustrative material has no probative value in itself; rather it derives its authenticity from the testimony of the witness. Long v. Serritt, 102 Ga. Appi at 551 (1). The Supreme Court of Georgia recently reiterated that point: “[C]ertain materials may be used as tools to illustrate testimony without being admitted [into] evidence, but not where the illustrative material contains erroneous or prejudicial matter unauthenticated by the testimony which it purports to illustrate.” (Emphasis supplied.) Pickren v. State, 269 Ga. 453, 455 (2) (500 SE2d 566) (1998). In this case, the expert’s video did accurately illustrate his testimony and that is sufficient.

We decline to apply the evidentiary rule applicable to video reenactments: “[T]he party seeking to use it must show that is a [true] and accurate representation of the events sought to be depicted.” Pickren, 269 Ga. 455 (2). The tape at issue here does not contain a video re-enactment of the accident. The computerized animation is much more akin to a witness’s use of models than it is to a motion picture attempting to re-create real events. Consequently, there is minimal risk that the video would become an “extra witness” against the defendants. See id. As Professor McCormick explained: “Models, maps, sketches, and diagrams (as distinguished from duplicates) are by their nature generally not confusable with real evidence, and are admissible simply on the basis of testimony that they are substantially accurate representations of what the witness is endeavoring to describe. Some discretionary control in the trial court is generally deemed appropriate, however, since exhibits of this kind, due to inaccuracies, variations of scale, etc., may on occasion be more misleading than helpful. Nevertheless, when the trial court has exercised its discretion to admit, it will only rarely be found in error, at least if potentially misleading inaccuracies have been pointed out by witnesses for the proponent, or could have been exposed upon cross-examination.” (Footnotes omitted.) 2 McCormick on Evidence, § 213, pp. 12-13. In this case, because the videotape contained computerized, animated models which accurately illustrated the expert’s opinion of how events transpired, and because any inaccuracies in the animation could be brought out upon cross-examination of the expert, we hold that the trial court did not abuse its discretion in allowing the tape to be played to illustrate the expert’s testimony. Long v. Serritt, 102 Ga. App. 551 (1).

2. In their third enumeration of error, the defendants contend the trial court erred by reading portions of the complaint and answer to the jury at the beginning of the final jury charge. The court began its charge by reading the style of the case. Then, after briefly reciting the contentions contained in the parties’ pleadings, the court stated: “I do want to caution you that the pleadings are not evidence. They are only the claims or the contentions of the parties.” This instruction substantially tracked the “Pleadings” charge contained within the Suggested Pattern Jury Instructions, Vol. I: Civil Cases (2nd ed.), p. 10 (1991).

Although the complaint was drafted in more descriptive terms than the answer, we do not believe this rendered the court’s charge argumentative. “The charge of the court must be viewed as a whole. If, taken as a whole, the charge of the court covers the issues presented fairly and accurately, no error will be presumed from minute inspection of individual words or phrases. After reviewing the charge given by the court, we find that the whole charge covered fairly all issues and contentions of both sides.” (Citations omitted.) Kroger Co. v. Green, 190 Ga. App. 318, 319 (3) (378 SE2d 905) (1989). Further, we find nothing inherently wrong with reading the parties’ contentions directly from the pleadings. See Smith v. Doe, 176 Ga. App. 711 (1) (337 SE2d 367) (1985). Had the defendants wished the parties’ contentions couched in terms different from those contained in the pleadings, they could have made such a request.

3. In their seventh enumeration of error, the defendants contend the trial court erred in denying their motion for new trial because the amount of damages awarded was excessive and contrary to the evidence. “The question of damages is ordinarily for the jury; and the court should not interfere with the jury’s verdict unless the damages awarded are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case. OCGA § 51-12-12. The general rule on appeal of an award of damages is that a jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to shock the conscience.” (Citations and punctuation omitted.) Sykes v. Sin, 229 Ga. App. 155, 159 (4) (493 SE2d 571) (1997).

After reviewing the record, we find that the award of $155,000 to plaintiff was not excessive. Plaintiff presented evidence showing $20,000 in special medical expenses and six and a half months of lost wages. In the accident, plaintiff’s face, neck, chest, knee, and leg were cut. His leg was broken, and his knee was damaged. Glass was imbedded in his neck. Plaintiff’s injuries required plastic and arthoscopic surgery and left significant scars. Plaintiff continues to experience knee problems, and his physical activities are limited. After his surgeries, plaintiff walked on crutches for weeks and testified to experiencing pain. “The sole measure of damages for pain and suffering is the enlightened conscience of fair and impartial jurors.” Stubbs v. Harmon, 226 Ga. App. 631, 633 (1) (b) (487 SE2d 91) (1997). Given this evidence, we cannot say that the verdict was so excessive as to be against the preponderance of the evidence.

4. In their remaining enumerations of error, the defendants argue the court erred in refusing to give their Request to Charge Nos. 13, 25, and 28. We find these enumerations to be without merit. We have reviewed the record and find that the charge, taken as a whole, was fair and accurate. Further, we find no harm or prejudice to defendants in the court’s refusal to give the requested charges. See Leigner v. State, 213 Ga. App. 871, 872 (3) (446 SE2d 770) (1994).

Decided February 5, 1999

Reconsideration denied February 24, 1999

Hawkins & Parnell, William H. Major III, David H. Wilson, for appellants.

Harry B. James III, for appellee.

Judgment affirmed.

Beasley, P. J., and Ruffin, J., concur.


author: Barnes, Judge.

text:
    A97A2529.
    FLINT ELECTRIC MEMBERSHIP CORPORATION v. ED SMITH CONSTRUCTION COMPANY, INC.
    (512 SE2d 713)
    Decided February 24, 1999.

      Chambless, Higdon & Carson, Emmitte H. Griggs, Jon C. Wolfe, Joseph H. Davis, Daniel, Lawson, Tuggle & Jerles, Tom W. Daniel, for appellant.

      Weissman, Nowack, Curry & Wilco, Leigh M. Wilco, Frances R. Mathis, for appellee.
   Barnes, Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court in Flint Elec. Membership Corp. v. Ed Smith Constr. Co., 270 Ga. 464 (511 SE2d 160) (1999), our decision in Flint Elec. Membership Corp. v. Ed Smith Constr. Co., 229 Ga. App. 838 (495 SE2d 136) (1997), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

Ruffin and Eldridge, JJ., concur.


text:
    A98A1979.
    HILSON v. DEPARTMENT OF PUBLIC SAFETY.
    (512 SE2d 910)
   Pope, Presiding Judge.

This case arose from an automobile collision which occurred on June 14, 1994 between a vehicle driven by the appellant, Rosa Walker Hilson, and a vehicle driven by Georgia State Trooper Rufus Grace. At the time of the accident, Trooper Grace was within the scope of his employment and was driving a vehicle which was owned by his employer, the Department of Public Safety. Grace, who was transporting prisoners, was chasing a speeding vehicle immediately before the accident.

The State produced undisputed evidence from Grace’s deposition in which he stated that immediately before the accident he met a vehicle which was going approximately 80 mph in a 45-mph zone. Grace testified that after seeing the speeding vehicle, he turned on his blue lights, siren and “wig-wags,” and motioned for the driver to stop. Nevertheless, the driver kept going and Grace began to follow the vehicle. In doing so, the accident with Hilson occurred.

Hilson brought an action against the Department of Public Safety to recover for losses she claimed to have sustained in the accident. In her complaint, Hilson alleged that the accident was caused by the negligence of defendant, through its employee Grace. The State filed a motion to dismiss for failure to state a claim, arguing in part that Hilson’s claims were barred by the “method of providing law enforcement” exclusion to the State’s waiver of sovereign immunity contained in OCGA § 50-21-24 (6). The superior court granted the motion, finding that the State was immune from suit in this case, and this appeal followed.

In her sole enumeration of error, Hilson argues that the trial court misinterpreted OCGA § 50-21-24 (6) and that the court’s conclusion that the state was immune from suit in this case controverts the legislative intent underlying the Georgia Tort Claims Act (OCGA § 50-21-20 et seq.). In support of her argument Hilson cites Long v. Hall County Bd. of Commrs., 219 Ga. App. 853 (3) (467 SE2d 186) (1996); Pearson v. City of Atlanta, 231 Ga. App. 96 (499 SE2d 89) (1998); and various statutes, including OCGA § 40-6-6 (d) (2) (regarding liability of a pursuing officer when chasing a suspect); OCGA § 45-9-40 (requiring the state to secure insurance to cover its employees during the operation of state-owned motor vehicles), and OCGA § 33-34-4 (requiring insurance for vehicles). For the following reasons, we disagree with Hilson’s arguments and affirm the superior court’s ruling.

“In 1990, a majority of Georgia voters approved a constitutional amendment which provided for limited waiver of sovereign immunity through a legislative act. The language of that ballot amendment has received judicial approval. [Cits.]

“Pursuant to that constitutional amendment, Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983 was amended in 1991. It now provides that the defense of sovereign immunity by the state to tort liability can only be waived ‘by an Act of the General Assembly which specifically provides that sovereign immunity is. thereby waived and the extent of such waiver.’ Subsection (e).

“The Georgia Tort Claims Act, OCGA § 50-21-20 et seq., was enacted under the authority of the 1991 constitutional amendment. [Cit.]” Riddle v. Ashe, 269 Ga. 65-66 (1) (495 SE2d 287) (1998).

The legislative intent with respect to the state’s liability is set out in OCGA § 50-21-21 (a). In that subsection, the legislature recognized “the inherently unfair and inequitable results” which result from a strict application of the doctrine of sovereign immunity. On the other hand, the legislature recognized that state government cannot choose the ambit of its activity, and that its exposure of the state treasury to liability must be limited.

In OCGA § 50-21-23 (a) the statute sets forth a limited waiver of sovereign immunity by the state: “[t]he state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances; provided, however, that the state’s sovereign immunity is waived subject to all exceptions and limitations set forth in this article.”

OCGA § 50-21-24 provides the exceptions to the waiver; i.e., the instances in which the state shall have no liability for losses. Subsection (6) states that the state shall have no liability for losses resulting from: “[c]ivil disturbance, riot, insurrection, or rebellion, or the failure to provide, or the method of providing, law enforcement, police, or fire protection.” (Emphasis supplied.)

Trooper Grace’s pursuit of the speeding vehicle clearly fell within the parameters of subsection (6) as a “method of providing law enforcement.” Although the statute does not define “method,” Webster’s New World Dictionary defines it as a “way of doing anything.” Webster’s New World Dictionary (2nd College Ed., 1970). Chasing a speeding vehicle is a method of law enforcement subject to this exception. Contrary to the arguments raised by Hilson and in the amicus curiae brief, this result is not contrary to the legislative intent behind the statute.

Our research has revealed only one case in which subsection (6) has been involved. In Long v. Hall County, 219 Ga. App. at 853, an inmate escaped from the Hall County Correctional Institute and stole a truck. Subsequently, the inmate was involved in an accident with plaintiff Long who sued, with other defendants, the Georgia Department of Corrections. This Court concluded that the allegation that the correctional officer negligently supervised the work detail from which the inmate escaped amounted “to a failure to provide law enforcement services within the meaning of this Code section” and that the grant of summary judgment to the State was proper. Long v. Hall County, 219 Ga. App. at 857-858.

Similarly, in this case, dismissal was proper. There was no evidence that Trooper Grace was involved in any activity other than this law enforcement work of chasing a speeder immediately before the accident. Hilson’s allegations against Trooper Grace involved only negligence; there were no allegations that Grace had acted maliciously. Based on our conclusion, we need not decide whether Trooper Grace’s action constituted “discretionary acts” as provided for in OCGA § 50-21-24 (2).

Decided February 24, 1999

Vansant, Corriere, McClure & Dasher, Alfred N. Corriere, J. Brian Rutland, for appellant.

Thurhert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Kimberly L. Schwartz, Assistant Attorney General, for appellee.

Flournoy & Gentry, Matthew C. Flournoy, amicus curiae.

In reaching this conclusion we are mindful of the provisions of OCGA § 40-6-6 regarding the liability of a law enforcement vehicle which is pursuing a fleeing suspect. But, contrary to Hilson’s arguments, that statute specifically provides in subsection (d) (3) that “[t]he provisions of this subsection shall apply only to issues of causation and duty and shall not affect the existence or absence of immunity which shall be determined as otherwise provided by the law.”

Additionally, although she did not raise the existence of insurance in her complaint and although there is no evidence in the record of insurance coverage, Hilson appears to argue that the existence of insurance removes the State’s immunity. This argument is meritless. See Bontwell v. Dept. of Corrections, 226 Ga. App. at 527 (2); Long v. Hall County, 219 Ga. App. at 856 (2); Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e).

Judgment affirmed.

Ruffin, J., and Senior Appellate Judge Harold R. Banke concur.

       With respect to the discretionary nature of a police officer’s actions before the enactment of the Georgia Tort Claims Act, see Logue v. Wright, 260 Ga. 206 (1) (392 SE2d 235) (1990), overruled on different grounds, Merrow v. Hawkins, 266 Ga. 390 (467 SE2d 336) (1996); Johnson v. Gonzalez, 223 Ga. App. 646 (478 SE2d 410) (1996); Banks v. Patton, 202 Ga. App. 168 (413 SE2d 744) (1991). For cases involving discretionary acts since the enactment of the statute, see generally Bontwell v. Dept. of Corrections, 226 Ga. App. 524, 527 (4) (a) (486 SE2d 917) (1997) (physical precedent only); Rhoden v. Dept. of Public Safety, 221 Ga. App. 844, 845 (1) (473 SE2d 537) (1996); Pearson v. City of Atlanta, 231 Ga. App. at 101 (5).


author: Ruffin, Judge.

text:
    A98A1999.
    In the Interest of I. G., a child.
    (513 SE2d 53)
   Ruffin, Judge.

Appellant, the mother of I. G., appeals from the juvenile court’s order terminating her parental rights. On appeal, the mother challenges the sufficiency of the evidence. Since ample evidence supports the order, we affirm.

“The question on appeal is whether, after reviewing the evidence in a light most favorable to the lower court’s judgment!], any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” (Citation and punctuation omitted.) In the Interest of S. N. N, 230 Ga. App. 109 (495 SE2d 602) (1998).

The evidence shows that appellant is the mother of I. G. and I. G.’s two older siblings, C. G. and D. W. The Department of Family & Children Services (DFCS) became involved with appellant’s family in July 1995, after appellant was arrested following a physical altercation with her brother. At the time of the arrest, appellant had one child, D. W., and was pregnant with her second child, C. G. As a result of the arrest, DFCS implemented a case plan which required appellant to attend parenting classes. Although DFCS provided transportation for these classes, appellant failed to attend because she felt she was a “good parent.”

In May 1996, DFCS obtained custody of D. W. and C. G. after appellant left them without adequate supervision. Following a brief stint in foster care, the children were returned to appellant under the protective supervision of DFCS.

In December 1996, shortly after the birth of I. G., appellant became frustrated with one-year-old C. G. because he would not stop crying and she shook him to the point that he went into a “shock-like state.” According to a DFCS caseworker, as a result of this injury, C. G. is in “a persistent vegetative state” from which he is not likely to recover. C. G. is blind, unable to move, and is able to eat strained baby food only if his chin is moved “sort of like you do a puppy with a pill trying to get him to swallow.”

In addition to the injury caused by shaking, a police officer discovered both old and new bite marks on C. G.’s body as well as a healing cigarette bum on his leg. The police arrested appellant, and charged her with aggravated battery and child abuse. The caseworker testified that since her arrest, appellant has made no effort to contact any of her children. In March 1997, appellant pled guilty to aggravated battery and cruelty to a child and was sentenced to serve 25 years in jail.

On December 27, 1996, DFCS filed a deprivation petition seeking the court’s protection for appellant’s three children. After a hearing on the matter, the court found that appellant’s children were deprived and awarded temporary custody to DFCS. On September 29, 1997, DFCS filed a petition to terminate appellant’s parental rights to I. G. Following a hearing on January 13, 1998, the juvenile court issued an order on March 17, 1998 terminating appellant’s parental rights.” Under OCGA § 15-11-81 (a), the considerations for terminating parental rights involve a two-step process. The trial court must first determine ‘whether there is present clear and convincing evidence of parental misconduct or inability.’ OCGA § 15-11-81 (a).” (Citation and punctuation omitted.) In the Interest of M. E. C., 228 Ga. App. 9 (1) (491 SE2d 107) (1997). OCGA § 15-11-81 (b) (4) (A) sets forth the factors to consider in determining whether such evidence exists.

“The first factor in the determination of parental misconduct or inability is consideration of whether the child is deprived. In the case sub judice, [I. G.] was determined to be deprived in [February 1997] and was taken into custody by DFCS. This deprivation order . . . has not been appealed by appellant. Therefore, appellant is bound by this finding of deprivation and the first factor is satisfied.” In the Interest of E. C., 225 Ga. App. 12, 14-15 (482 SE2d 522) (1997).

Second, in determining whether a child is without proper parental care and control, the court shall consider the “[c]onviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship.” OCGA § 15-11-81 (b) (4) (B) (iii). “ ‘Although imprisonment alone does not always compel termination of parental rights, it will support such a ruling when adequate aggravating circumstances are shown to exist.’ ” In the Interest of S. N. N., supra at 110 (1). Here, appellant inflicted unspeakable injuries on one of her infant children. Pursuant to OCGA § 15-11-81 (b) (4) (B) (iv), evidence of egregious conduct toward another child of a physically abusive nature shall be considered by the court in determining whether a child is without proper parental control. The type of abuse inflicted by appellant is “undoubtedly that detrimental and egregious parental misconduct which justifies the termination of parental rights. Although [I. G.] has not been the object of such abuse, the severe nature of the abuse of [C. G.] . . . is sufficient to authorize the termination of appellant’s parental rights in regard to [I. G.].” (Citations and punctuation omitted.) In the Interest of A. T., 187 Ga. App. 299, 300-301 (1) (370 SE2d 48) (1988); see also In the Interest of V. S., 230 Ga. App. 26 (495 SE2d 142) (1997).

We agree with the court’s determination that there is clear and convincing evidence that the deprivation is likely to continue. OCGA § 15-11-81 (b) (4) (A) (iii). Although appellant had an opportunity to attend parenting classes, she made no attempt to improve her skills. Even before her rights had been terminated, appellant did not try to contact her children while they were in foster care nor did she write them letters or send them cards. Appellant blamed her failure to contact her children on the fact that the DFCS caseworker told her that she could not see them. However, the caseworker denied appellant’s contention, claiming that she told appellant that she could remain in touch with her children.

Moreover, appellant’s refusal to accept the consequences of her actions supports a determination that the deprivation will continue. At the hearing, appellant refused to acknowledge her role in C. G.’s injuries. Although she confessed to the investigating officer that she had bitten C. G., at the hearing she denied biting him. When asked about the “horrible” injuries to C. G., appellant responded “I don’t believe it was horrible. I think it was — in my heart it was an accident.” See In the Interest of S. M. L., 228 Ga. App. 81, 84 (5) (491 SE2d 186) (1997).

Finally, the continued deprivation is likely to cause I. G. serious physical, mental, emotional, or moral harm. OCGA § 15-11-81 (b) (4) (A) (iv). At the time of the termination of parental rights hearing, appellant had been incarcerated for only three to four months of her twenty-five year sentence and had not been given a tentative parole date. Thus, for the foreseeable future, appellant will be unable to care for I. G. Even if appellant was not in jail, the fact that she inflicted traumatic injury to I. G.’s sibling would support a finding that she was likely to cause I. G. serious physical harm.

“Once the trial court establishes parental misconduct or inability, the second part of the test for determining whether parental rights should be terminated is whether such termination ‘is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.’ OCGA § 15-11-81 (a).” (Citation and punctuation omitted.) In the Interest of M. E. C., supra at 10. The same evidence showing parental misconduct or inability may, and here does, establish this requirement.” (Punctuation omitted.) In the Interest of C. L. R., 232 Ga. App. 134, 138 (2) (501 SE2d 296) (1998).

Judgment affirmed.

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

Decided February 24, 1999.

John P. Rivers, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, James A. Chamberlin, Jr., for appellee.

       The juvenile court also terminated the parental rights of I. G.’s putative father, who did not appeal.

       The order of the juvenile court did not address termination of appellant’s parental rights with regard to C. G. or D. W.


author: Smith, Judge.

text:
    A98A2346.
    A98A2414.
    RUSSELL v. THE STATE. STEELE v. THE STATE.
    (512 SE2d 913)
   Smith, Judge.

Derrick Russell and Darrell Steele were indicted jointly for armed robbery. They were tried jointly and convicted by a jury. After judgment was entered, Steele moved for a new trial, while Russell appealed directly to this court. In Russell v. State, 230 Ga. App. 546 (497 SE2d 36) (1998), this court found that Russell’s conviction was supported by sufficient evidence under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and found no merit in several other enumerations of error. We affirmed Russell’s conviction, however, only on condition that the trial court hold an evidentiary hearing to address issues raised by Russell concerning several in-chambers conferences during which voir dire was conducted, a McCollum challenge to the jury’s composition was made, and the jury was re-struck.

Upon remand, the trial court consolidated the hearing directed by this court with the hearing on Steele’s motion for new trial. That motion raised the same issue with regard to both defendants’ absence from the in-chambers conferences, in addition to several other issues. After the hearing, at which both trial counsel, the trial prosecutor, and both defendants testified, the trial court entered an order denying Steele’s motion for new trial on all grounds and specifically finding that the defendants had acquiesced in their counsel’s waiver of their presence at the in-chambers meetings. Each defendant filed a separate appeal, and those appeals have been consolidated for review because of the common issues. We find that the evidence at trial was sufficient to authorize Steele’s conviction. But because the evidence presented at the post-trial hearing does not support the trial court’s finding that both defendants acquiesced in a waiver of their right to be present during voir dire proceedings and jury selection, we conclude that both convictions must be reversed and both defendants afforded a new trial.

1. We first address Steele’s contention that the evidence was insufficient to support his conviction. Steele maintains that the evidence showed only that he was merely present when Russell committed an armed robbery. We do not agree.

Construed to support the verdict, the evidence showed that Steele entered a truck rental store on Lawrenceville Highway in DeKalb County shortly after noon. According to the owner, he was wearing a sweater or sweatshirt that had the word “black” written on it, and he looked “around the whole building.” When the owner told him that renting a truck would require an $80 deposit, he said he did not have that much money and left. The owner thought Steele had left to go to the bank “to get some money for the deposit, which isn’t unusual.” Instead, Steele followed another man, Russell, back into the store; Russell pulled a gun and pointed it at the owner. Steele said nothing, but sat on a divan inside the store while the gun was pointed at the owner. The owner turned over all he had to the gunman, which was “between $60 and $100,” and the two men left.

The owner called 911 and reported the crime, giving a description of the truck and the robbers. Officer James Steedle of the Clarkston Police Department was on patrol when he heard the lookout. A short time later, he observed a truck that fit the description in the lookout, and he followed it. He activated his lights and siren, and after initially failing to stop, the truck pulled over. Steedle radioed his location and additional officers arrived. A showup was conducted at the scene, and the victim identified both occupants as the robbers. Russell was driving, and Steele was the passenger. Another officer, who assisted Steedle at the arrest, testified that Steele was wearing a sweatshirt that had on its front the words “Black by popular demand.” A search of the truck revealed a handgun under the driver’s seat.

Detective David Donehoo of the DeKalb County Police Department interviewed Steele at the police station. Steele was read his Miranda rights and he agreed to waive his rights and give a statement. In the statement, Steele admitted being at the truck rental store when his companion committed armed robbery but stated he had no prior knowledge that the crime would be committed.

Although Steele was not the gunman, this evidence, including Steele’s entering the store first, his following Russell back in, his sitting quietly while Russell pulled the gun and took the money, and his leaving with Russell in the truck, provided ample evidence to authorize the jury to find him guilty of armed robbery as a party to the crime, under the standard set forth in Jackson v. Virginia, supra. OCGA § 16-2-20.

2. In our opinion in Russell, supra, we directed the trial court to “consider and balance all relevant factors in arriving at its determination regarding the issue of acquiescence and make relevant findings of fact” on at least six issues: “(1) whether appellant knew of his right to be present during jury selection; (2) whether appellant’s counsel waived appellant’s right to be present in the presence of appellant; (3) whether appellant posed any form of timely objection to conducting voir dire outside his presence; (4) whether appellant was absent voluntarily or whether he was in confinement or custody of the State; (5) whether the trial court announced in the appellant’s presence that counsel would meet with him in chambers to continue the voir dire; and (6) if the trial court so announced the chambers conference in appellant’s presence, whether a fair risk existed that such announcement would have misled appellant as to his right to be present during voir dire.” Id. at 550 (6).

In its order, the trial court addressed these factors. We need not examine each of the trial court’s findings, as we conclude that the trial court’s finding as to the first factor is clearly erroneous, warranting reversal. The trial court found that “each defendant at least implicitly knew of his right to be present during jury selection. Both defendants were present at the outset of trial when jury selection began and were present in court when the attorneys informed potential jurors that sensitive issues could be handled privately in chambers. Additionally, both defense counsel testified that it was their normal practice to advise clients of their rights, to explain trial procedures, and to consult with their clients during trial. Although neither attorney recalled specifically telling their clients that they had the right to be present in chambers, both attorneys testified that they informed defendants of what occurred in their absence and neither defendant voiced any objection.”

In Russell, supra, we reviewed the law with regard to a defendant’s right under Art. I, Sec. I, Par. XII of the Georgia Constitution of 1983 to be present during voir dire, which is “a ‘critical stage of the proceedings.’ ” Id. at 546-547 (1). The State conceded, and this court agreed, that as to Russell, the record failed to show either a personal waiver or an express authorization of his counsel to waive his right to be present. Id. The same is true with regard to Steele. We reiterated in Russell that although counsel may waive this right for a client, that occurs only if done in the client’s presence or with the client’s express authority, or if the client subsequently acquiesces in counsel’s waiver. Id. at 547. It is well established that even though counsel is present at the critical stage and makes no objection to his client’s absence, no waiver of the defendant’s right occurs unless the client thereafter knowingly acquiesces in his counsel’s choice to proceed without him. Id.; see also Goodroe v. State, 224 Ga. App. 378, 380 (1) (480 SE2d 378) (1997).

It is undisputed that neither Russell nor Steele made any objection regarding his absence from the chambers conferences. The question, therefore, is whether this silence amounted to acquiescence by either Russell or Steele in the waiver of his presence by his counsel. “Acquiescing” in such a waiver necessarily implies that one knows of the right one is consenting to relinquish. A waiver is “an intentional relinquishment or abandonment of a known right or privilege.” Williams v. State, 183 Ga. App. 373, 374 (1) (358 SE2d 914) (1987). “One cannot acquiesce in a wrong while ignorant that it has been committed.” Dunaway v. Windsor, 197 Ga. 705, 709 (30 SE2d 627) (1944). To determine whether Russell or Steele acquiesced, we must therefore first determine whether either Russell or Steele knew that he had the right to be present when the proceedings moved into chambers to continue the voir dire or jury selection. We cannot assume such knowledge.

Contrary to the trial court’s finding, we find that the record does not establish even “implicitly” that either Russell or Steele had such knowledge. The facts relied upon by the trial court arguably may support a finding that Russell and Steele may have known, after the fact, that the McCollum challenge was addressed in chambers in their absence. Russell’s trial counsel testified that his recollection was that his client and he both disagreed with the trial court’s ruling with regard to the challenge. Steele’s trial counsel testified that when they returned to the courtroom Steele inquired why they had been gone so long, and she told him that they were dealing with the challenge and that the jury had been reconstituted.

Although both trial counsel testified that it was their general practice to keep their clients informed about events occurring outside their presence, the record does not show that either defendant was informed by counsel that voir dire was being conducted in chambers. We disagree with the trial court’s reasoning that such knowledge necessarily follows from Russell’s and Steele’s presence in court when jury selection began, or from counsel’s informing the jury in open court that sensitive issues could be handled in chambers.

But even if we assume that Russell and Steele were aware that voir dire was being conducted in chambers, that knowledge would not amount to acquiescence in a waiver unless they also knew they had a right to be present in chambers during the proceeding. The record does not support a finding that they had the requisite knowledge.

The trial transcript includes no statement either in open court or in chambers showing that the defendants were informed of this right. The evidence presented at the post-trial hearing showed that they had no such knowledge. Both defendants testified they did not know they had the right to be present at the chambers conferences. Russell’s counsel testified that to the best of his recollection neither he nor anyone else told Russell that he had a right to be present when they moved to chambers. Russell’s attorney testified, in fact, that in his opinion, Russell’s right to be present was not “considered” and that to the best of his recollection, no one raised the issue of the defendants’ presence in chambers.

Counsel for Steele agreed that nothing “was said that [Steele] could or that he could not be present. I think no one said anything either way.” She testified unequivocally that although she knew Steele had the right to be present, she did nothing to ensure that he was consenting to give up that right. She did not tell her client that he could come into chambers or that he had the right to do so. She admitted frankly that Steele was absent from the proceedings in chambers because she “didn’t tell him he could go back there.” She and counsel for Russell never talked about any possible strategy advising their clients not to be present in chambers, and she believed the judge did not, in fact, invite the defendants into chambers or inform them of their right to be there.

The trial prosecutor testified that in her experience in the trial judge’s courtroom, it was his usual practice to turn back to the counsel tables as he left the courtroom for a chambers conference and say something like “he can come back or they can come back if they want to,” referring to the defendants. But even this testimony is insufficient to support a finding that the defendants were aware of their right to be present. First, the trial prosecutor had no specific recollection as to whether the trial judge followed his customary practice in this case. And Steele’s trial counsel, as well as both defendants, testified that he did not. Moreover, even assuming the trial court did follow its usual practice, it is questionable whether turning in the defendants’ general direction and stating that “you” or “they” can come, too, would adequately inform the defendants of their right. Russell testified at the post-trial hearing, for instance, that if the court had said something like that, he “would have thought he was telling . . . the other attorney to come back there.”

We note that at the end of the evidentiary hearing, the trial court stated for the record that its recollection was that, at least as to the McCollum challenge, “I told the court reporter we’d have to go in chambers, and I told the lawyers within hearing distance of these two defendants that they could bring them in if they so desired, and I went into chambers.” But the trial court’s “recollection” does not constitute evidence.

When a trial court sits as a trier of fact, its findings of fact must be affirmed unless they are clearly erroneous. See Redd v. State, 229 Ga. App. 364, 365 (494 SE2d 31) (1997). In this case, we are constrained to agree with Russell and Steele that the trial court’s findings are not supported by any competent evidence. Because no evidence supports a finding that Russell and Steele were aware of their right to be present in chambers during voir dire and jury selection, their convictions must be reversed and they must be afforded a new trial.

3. During the post-trial hearing, after the trial prosecutor testified regarding the trial court’s usual practice of informing defendants they could participate in chambers conferences, Russell and Steele orally requested that the judge recuse himself, and the judge denied the request. The defendants then filed a written joint motion requesting a change of judge, on the ground that the trial judge’s recollection of the events at trial, particularly as to whether he informed the defendants they could participate in the chambers conferences, was material evidence at the hearing and was not subject to cross-examination. No written order denying the motion appears in the record, but the trial court indicated that counsel should proceed with the hearing.

On appeal, both Russell and Steele complain of the trial court’s actions with regard to the recusal motions. Steele contends the trial court erred in failing to recuse himself from conducting the post-trial hearing, and Russell contends the trial court erred in failing to hold a hearing on the joint motion to recuse. Our decision in Division 2, supra, finding that a new trial must be held, renders both these enumerations of error moot. Nevertheless, we take this opportunity to emphasize the importance of adhering to Canon 3 of the Code of Judicial Conduct. It appears from the final order that the trial judge did not rely on his own recollection of events in deciding the issue of whether Russell and Steele acquiesced in a waiver of their right to be present at the in-chambers conferences. But it is elementary that one may not be a witness and a judge in the same proceeding. Collins v. State, 141 Ga. App. 121, 122-123 (232 SE2d 635) (1977). And Canon 3 directs judges to “disqualify themselves in proceedings in which their impartiality might reasonably be questioned.” Canon 3 required the trial judge to disqualify himself in this case, if not sua sponte, then certainly when his impartiality was drawn into question during the hearing.

4. We address two of Steele’s remaining enumerations of error, dealing with the admission of certain evidence, because it is possible they may recur at retrial. At trial, an officer testified that the truck in which Russell and Steele were riding when they were stopped was stolen. Steele maintains first that notwithstanding that no objection was interposed at trial to the admission of this testimony, it was hearsay and admitting it into evidence was prejudicial to him and not harmless. The officer testified that “the tag was run and it did come back with what we call a ‘Code 4,’ or stolen.” First, the testimony was information in the collective knowledge of the police officers. It was derived from a reliable “chain of information-sharing.” Beck v. State, 216 Ga. App. 532, 535 (455 SE2d 110) (1995). And it is well established that a traffic stop based upon such collective knowledge is valid. Id.; State v. Wright, 221 Ga. App. 202, 204-205 (3) (470 SE2d 916) (1996). We note that Steele does not challenge the stop, thereby at least implicitly acknowledging this principle.

Decided February 24, 1999.

Yvonne Twyman-Williams, for appellant (case no. A98A2346).

Howard J. Weintraub, for appellant (case no. A98A2414).

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

In this case, the routine procedure of running the car tag was also a circumstance of the arrest, and therefore a part of the res gestae. And in Russell, supra, we affirmed the trial court’s denial of the motion in limine made by Steele to preclude any mention that the truck was stolen. We stated there that “ ‘[w]here evidence is relevant for the purpose of showing flight or the circumstances of arrest, it will not be excluded because it incidentally shows the commission of another crime.’ [Cits.]” Id. at 550 (6).

Steele also asserts that the trial court should have given a charge to the jury limiting the jury’s consideration of this evidence. Neither Russell nor Steele was charged with the theft of the truck, and the trial court immediately so instructed the jury, although such a charge was not requested. If Steele desires a different limiting instruction at retrial, he may request one.

Judgments reversed.

Johnson, C. J., and Barnes, J., concur.

       In Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992), the U. S. Supreme Court held that the principle established in Batson v. Kentucky as to the State applied as well to a criminal defendant, and that a defendant may not engage in purposeful discrimination on the basis of race in exercising peremptory challenges.


text:
    A98A1659.
    HOOPER v. HARRIS et al.
    (512 SE2d 312)
   Smith, Judge.

Dennis R. Hooper, a state prison inmate, filed this civil action for damages against the sheriff and other officials of Paulding County. Hooper alleged that certain personal property was taken from him at the time of his arrest and never returned. He sought $60, which he contends was the value of the unidentified property. The trial court found the litigation frivolous and dismissed it in an order entered October 1, 1997. Hooper’s application for a discretionary appeal from the dismissal was dismissed as untimely. While his motion for reconsideration was pending in this court, Hooper filed in the trial court an “Extraordinary Motion to Set Aside Final Judgment.”

After reconsideration of the dismissal of Hooper’s application for discretionary appeal was denied by this court, the trial court entered an order on January 15, 1998, reciting as follows: “Defendant continues to ignore the orders of this Court, in particular the order of October 1, 1997. Any pleadings filed in any of defendant’s numerous pro se cases have already been ruled on at least once, and any pleading[s] filed after October 1, 1997, are deemed null and void by operation of law.” Hooper again applied for a discretionary appeal, which was granted. His notice of appeal specifies that he appeals from both the order entered denying his “Motion for Return of Personal Property” and the order addressing his “Extraordinary Motion to Set Aside Judgment,” and it references both his civil action number and his criminal case number. For the reasons that follow, we do not consider Hooper’s appeal from the order denying his motion for the return of personal property. With regard to the order entered January 15, 1998, we conclude it must be vacated and remanded to the trial court with direction.

1. Hooper filed the “Motion for Return of Personal Property” in his criminal case, the direct appeal of which has been completed. Hooper v. State, 223 Ga. App. 515 (478 SE2d 606) (1996). The trial court reviewed Harris’s claim in the criminal case and inquired into the facts, concluding that no property belonging to Harris was being held by any of the defendant officials. This is reflected in an order entered in the criminal case on July 22, 1997. Hooper did not appeal this order, but instead later raised the same claim in a civil action. This is impermissible. “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” OCGA § 9-12-40. Hooper is faced with an unappealed ruling that no property was taken when he was arrested. This ruling is res judicata, and Hooper therefore is estopped to seek return of that property in any other court action involving these defendants. We cannot review Hooper’s contentions with regard to the merits of the trial court’s denial of his motion for return of personal property, and the civil action stands dismissed.

2. Hooper contends that because he claimed newly discovered evidence, the trial court should have held an evidentiary hearing on his extraordinary motion to set aside the judgment in this civil action. This contention is without merit. Because Hooper did not allege lack of jurisdiction or fraud, accident, or mistake, his motion to set aside the judgment must be predicated upon a nonamendable defect appearing on the face of the record or pleadings. OCGA § 9-11-60 (d) (3). Although Hooper attached a list of documents to his motion, the documents themselves are not in the motion or even in the record of the civil action, and nothing indicates that these documents were “newly discovered” or that they show that the judgment was in error. The trial court was not required to hold an evidentiary hearing to develop this evidence. See Gulf Oil Co. v. Mantegna, 167 Ga. App. 844, 846 (2) (307 SE2d 732) (1983).

3. Hooper contends that the restrictions imposed by the trial court on his court filings violated his rights to free speech and access to the courts guaranteed under the First and Fourteenth Amendments to the United States Constitution. In the October 1, 1997 order dismissing Hooper’s civil action, the trial court found that “it appears all civil litigation by plaintiff is solely for the purpose of harassment, causing unnecessary litigation and abusive litigation against anyone involved in his criminal prosecution. All conceivable actions arising out of plaintiff’s stalking and aggravated stalking conviction have now been thoroughly aired and any future such actions shall be deemed frivolous litigation under OCGA § 9-15-14. The Clerk of Court is directed not to file any future pleadings submitted by plaintiff.” Hooper has not appealed from this order; it is not enumerated in the notice of appeal. Hooper’s claim therefore must be predicated upon the order entered January 15, 1998, which is set out above, which renders “any pleadings,” both previously filed and filed in the future, to be “deemed null and void by operation of law.” Although the trial court’s frustration with Hooper’s so far meritless litigiousness is understandable, we must agree with Hooper that this order is overbroad.

The problems created for our courts by creative and overly litigious prison inmates have been recognized both by the federal courts and by the courts of this state. See, e.g., Procup v. Strickland, 792 F2d 1069 (11th Cir. 1986); Howard v. Sharpe, 266 Ga. 771 (470 SE2d 678) (1996). Our legislature has also addressed this problem and has enacted the Prison Litigation Reform Act of 1996, OCGA § 42-12-1 through § 42-12-9, in response. This legislation provides for assessing costs and attorney fees against inmate accounts for frivolous litigation. But the Constitution forbids courts to abridge inmates’ rights to have meaningful access to and communications with the courts, or to contest through habeas corpus proceedings the legality of their convictions or the constitutionality of prison conditions. An order that bars “adequate, effective and meaningful access to the courts” is unconstitutional. Howard, supra at 772 (1). Orders restricting any inmate’s access to the courts must be carefully and narrowly drawn to avoid unjustifiable limitations and must clearly be warranted by the particular circumstances. Id. at 773.

Decided February 10, 1999

Reconsideration denied February 25, 1999.

Dennis Hooper, pro se.

James R. Osborne, District Attorney, Vinson, Talley, Richardson & Cable, J. Glenn Richardson, for appellees.

In this case, some limitation is clearly warranted by Hooper’s past behavior involving frequent and frivolous filings. Nevertheless, a blanket declaration that all filings are “null and void by operation of law” is impermissible. Any future filings unrelated to the present claim must be reviewed on a case-by-case basis. The order entered January 15, 1998 is therefore vacated, and this case is remanded to the trial court to enter an order consistent with this opinion.

Appeal dismissed in part, judgment vacated in part and case remanded with direction.

Johnson, C. J., and Barnes, J, concur.

       In his special concurrence in In re Law Suits of Anthony J. Carter, 235 Ga. App. 551 (510 SE2d 91) (1998) (physical precedent only), Presiding Judge Pope offered several excellent suggestions for restraining vexatious litigants such as Hooper, without unlawfully restricting their rights. These include requiring that future suits be accompanied by several sworn affidavits or requiring that the litigant seek leave of court.


text:
    A98A2133.
    ROBERSON v. THE STATE.
    (512 SE2d 919)
   Ruffin, Judge.

A jury found Alvin Roberson guilty of aggravated assault, possession of a firearm during the commission of a crime, and carrying a weapon on school property. Roberson appeals, contending that (1) the trial court erred in charging the jury; (2) he received ineffective assistance of counsel; and (3) the trial court erred in denying his motion for new trial. Since Roberson’s arguments lack merit, we affirm.

The record shows that on April 11, 1995, a fight broke out at Lucy Laney High School between Roberson and Greg Gibbons. According to Greg, Roberson was the aggressor. Greg’s two brothers, James and Frederick, were present and broke up the fight. Greg testified that after his brothers stopped the fight, Roberson picked up a gun that had fallen out of his pants during the fight. Roberson first pointed the gun at James before turning the gun towards Greg. Thinking that Roberson was going to pull the trigger, Greg ran into a classroom with James. After Frederick asked Roberson why he had a gun, Roberson ran out of the school.

1. In two enumerations of error, Roberson contends the trial court gave erroneous jury charges on reasonable doubt and on the testimony of an accused.

(a) With regard to reasonable doubt, the trial court charged the jury that “[a] reasonable doubt means just what it says. It is the doubt of a fair minded, impartial juror, honestly seeking the truth. It is a doubt based upon common sense and reason. It does not mean a vague or arbitrary doubt, but is a doubt for which a reason can be given, arising from a consideration of the evidence, a lack of evidence, a conflict in the evidence, or a combination of these things.” According to Roberson, this charge violates his presumption of innocence because it suggests that reasonable doubt must “arise” from the evidence when, in fact, it exists before any evidence is presented. This argument is without merit.

It is well-established that “[t]he charge to the jury is to be taken as a whole and not out of context when making determinations as to correctness of same. . . . Further, it is not necessary in considering a charge to assume a possible adverse construction, but a charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required.” (Citations and punctuation omitted.) Mitchell v. State, 225 Ga. App. 26, 28-29 (2) (482 SE2d 419) (1997). Prior to charging the jury on reasonable doubt, the trial court instructed the jury that “[t]his defendant is presumed to be innocent until proven guilty. The defendant enters upon the trial of the case with a presumption of innocence in his favor. This presumption remains with the defendant until it is overcome by the state with evidence.” Considering the charge as a whole, we find the jury was properly instructed both on the presumption of innocence and on reasonable doubt. Moreover, we note that both this Court and the Supreme Court of Georgia have approved the language used by the trial court in instructing the jury on reasonable doubt. See Baldwin v. State, 264 Ga. 664 (449 SE2d 853) (1994); Edwards v. State, 214 Ga. App. 383 (448 SE2d 51) (1994).

(b) Roberson also cites as error the trial court’s charging the jury that “when the accused testifies, he at once becomes the same as any other witness. His credibility can be tested by and subjected to the same tests reasonably applied to any other witness. The defendant in this case did not testify, so that section of the code that I just read you, would not be applicable in this case.” According to Roberson, this instruction was tantamount to a comment on his failure to testify. We disagree.

When it comes to jury charges, “[n]ot all error is reversible, and if the judge uses language in his charge, although erroneous, it is not a ground for a new trial if such error is harmless.” Campbell v. State, 81 Ga. App. 834, 835-836 (1) (60 SE2d 169) (1950). In determining whether the error was harmful, we look to the charge as a whole. See Whitt v. State, 257 Ga. 8, 9 (3) (354 SE2d 116) (1987).

Decided February 25, 1999.

Stanley C. House, for appellant.

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

In this case, prior to charging the jury on the testimony of an accused, the trial court instructed the jury that “the defendant in a criminal case is under no duty to present any evidence tending to prove his innocence. He is not required to take the stand and testify in the case. If the defendant elects not to testify, no inference, hurtful, harmful, or adverse to the defendant, shall be drawn by the jury. Nor shall such fact be held against the defendant in any way.” Viewed as a whole, we find that the charge properly informed the jury that no adverse inference could be drawn from Roberson’s failure to testify. Therefore, we find no harmful error in the trial court’s apparent misstatement in instructing the jury on the testimony of an accused or in the trial court’s attempt to cure the error by clarifying that Roberson did not testify.

2. Roberson also asserts that he was denied effective assistance of trial counsel based on his attorney’s failure to object to the two above-referenced jury charges. “To establish ineffective assistance, one must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Punctuation omitted.) Perkins v. State, 226 Ga. App. 613, 617 (3) (487 SE2d 365) (1997). Since we have rejected Roberson’s contentions that the jury charge, as a whole, was harmful, his ineffective assistance claim must fail.

3. In his final enumeration of error, Roberson contends the trial court erred in denying his motion for new trial. In support of this contention, Roberson provides no new argument or authority, but merely incorporates his arguments relating to his other enumerations of error. Accordingly, this enumeration is without merit.

Judgment affirmed.

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