text:
    A98A2030.
    SMITH v. THE STATE.
    (511 SE2d 223)
   Smith, Judge.

Tracy Darnell Smith was indicted by a Newton County grand jury on one count of armed robbery, one count of aggravated assault, and two counts of possession of a firearm during the commission of a felony. A jury found Smith guilty on all charges, his motion for new trial as amended was denied, and he appeals. Finding no error, we affirm.

1. Smith enumerates the general grounds. Construed to support the jury’s verdict, the evidence shows that the victim was shot as he entered his truck after closing his convenience store. The robber took cash and lottery tickets from the truck. The lottery tickets were traced to Smith and three other individuals, all of whom were charged with the armed robbery. The other three individuals testified at Smith’s trial and gave their accounts of the events surrounding the robbery.

According to these witnesses, Smith and a companion stopped two acquaintances in a car and told the driver to take them “down by the store,” where Smith and his companion left the car. The companion came running back alone to the car a short time later, exclaiming, “Tracy shot the man.” Smith then returned, carrying two bags containing money and lottery tickets, and said, “He wouldn’t give his money up, so I shot him.” Smith’s companion testified that he saw Smith run up to the victim saying, “Give it up,” and saw Smith shoot the victim. He also testified that Smith had discussed the proposed robbery with him earlier in the week.

Smith contends the credibility of the witnesses against him was questionable, asserting they testified due to fear of prosecution or promises of leniency for their testimony. But after the jury’s verdict of guilty, Smith can no longer rely upon the presumption of innocence, and this Court cannot weigh evidence or judge the witnesses’ credibility. We must construe the evidence to uphold the verdict and determine only whether the evidence was sufficient to enable any rational trier of fact to find Smith guilty of the crime charged beyond a reasonable doubt. Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2d 377) (1990), aff’d, 261 Ga. 311 (404 SE2d 787) (1991).

Smith’s contention that the State’s evidence was entirely circumstantial is also without merit. Smith’s statement to the occupants of the getaway car was direct evidence. Ryals v. State, 193 Ga. App. 68, 69 (2) (387 SE2d 33) (1989). The eyewitness testimony of his companion also “constituted direct evidence of appellant’s guilt, not circumstantial evidence. Given this direct testimony of guilt, properly corroborated by other evidence, the rule requiring exclusion of every other reasonable hypothesis does not apply.” (Citations and punctuation omitted.) Clanton v. State, 208 Ga. App. 669, 670 (1) (b) (431 SE2d 453) (1993). The evidence as a whole was sufficient to enable any rational trier of fact to find appellant guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Smith contends the trial court abused its discretion by denying his motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), challenging the State’s use of two strikes to exclude African-American members of the jury panel. “In reviewing the trial court’s disposition of a Batson motion, we must bear in mind that the prosecutor’s explanation need not justify a challenge for cause, but must be neutral, related to the case to be tried, and reasonably specific. The trial court’s decision rests largely upon assessment of the prosecutor’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.” (Citations and punctuation omitted.) Hightower v. State, 220 Ga. App. 165, 166 (1) (469 SE2d 295) (1996).

The threshold issue of whether Smith established a prima facie case of discrimination is moot because the State offered purportedly race-neutral reasons for its strikes. See Byers v. State, 212 Ga. App. 110, 112 (2) (441 SE2d 290) (1994). Accordingly, we must determine whether the State’s proffered reasons for striking the jurors in question were race-neutral. Jackson v. State, 265 Ga. 897, 898 (2) (463 SE2d 699) (1995). A race-neutral explanation need not be persuasive, plausible or even make sense, id. at 899, but must simply be “based on something other than the race of the juror. Unless a discriminatory intent is inherent in the proponent’s explanation, the reason offered will be deemed race neutral.” (Citations and punctuation omitted.) Id.

Under these guidelines, the State’s explanations for both strikes were race-neutral. As to the first prospective juror, the prosecutor stated that he excused her because she previously served on a jury that returned a not guilty verdict and because her uncle had been prosecuted for a drug violation. The prosecutor stated that he excluded the second prospective juror because the State had previously prosecuted two persons with the same surname living at her home address, including her son, and because she was related to a man who had posted bond for Smith.

Previous participation in a verdict of not guilty in a criminal trial is a legitimate race-neutral reason to exercise a strike. Richard v. State, 223 Ga. App. 98, 99 (476 SE2d 849) (1996). A strike based on the prospective juror’s relationship with a person who has been in trouble with the law is also race-neutral. Byron v. State, 229 Ga. App. 795, 798 (5) (495 SE2d 123) (1997). A familial relationship with the defendant is a racially neutral basis for exercise of a strike, Marshall v. State, 266 Ga. 304-305 (2) (466 SE2d 567) (1996), as is acquaintance with a member of the defendant’s family. Hightower, supra at 166. An interest in a bonding company or relationship to the owner of a bonding company is race-neutral. Jackson, supra. It follows that a familial relationship with one willing to post bond on behalf of the defendant is also race-neutral. The trial court did not abuse its discretion in denying the motion because the State offered sufficient reasons for the exercise of its peremptory strikes.

3. Smith contends the trial court improperly commented on the evidence in violation of OCGA § 17-8-57. We disagree. The trial court has “a wide latitude of discretion” in controlling the examination of witnesses, and “[u]nless there is a manifest abuse of this discretion, an objection such as here will not work a reversal of the case. [Cit.]” Miller v. State, 166 Ga. App. 639, 641 (2) (305 SE2d 172) (1983).

Here, while on the witness stand, the driver of the car began to give evasive answers inconsistent with his earlier recorded statement to State investigators. The trial court inquired and was told that a tape recording of the interview existed but that the witness had not listened to it. At that time, the court excused the jury and instructed the prosecutor outside the jury’s presence to play the tape for the witness “so he will know what he told the investigator and what he didn’t tell the investigator . . . so we don’t waste our time out here.”

We first note that the specific comments complained of by Smith were made outside the presence of the jury. “Inasmuch as the purpose of OCGA § 17-8-57 is to prevent the jury from being influenced and the jury was not present at the time of these remarks, the statute was not violated. [Cit.]” Flantroy v. State, 231 Ga. App. 744, 746 (3) (501 SE2d 10) (1998).

OCGA § 17-8-57 prohibits judges in criminal cases from expressing or intimating their opinion on what has or has not been proved or as to the guilt of the accused. But comments to the jury explaining why the testimony of a witness has been delayed do not constitute an expression of opinion as to what has been proved or innocence or guilt. Hendricks v. State, 157 Ga. App. 715 (1) (278 SE2d 453) (1981). Furthermore, the trial court instructed the jury immediately after sending the witness out to listen to the tape, as well as in its general charge, that nothing the court said was to be construed as a comment on the evidence or the guilt or innocence of Smith. The trial court also instructed the jury that the purpose in postponing the examination of the witness was to control the progress of the trial and “make the orderly presentation of the case go a little bit faster.” These instructions were proper and demonstrate that no comment made in the jury’s presence was “directed toward a material issue or relevant evidence in the case. [Cit.]” Flantroy, supra at 746 (3). This enumeration of error is without merit.

4. Smith contends the trial court improperly admitted hearsay during the State’s presentation of similar transaction evidence regarding another robbery committed a few months before the crime at issue here. A police officer dispatched to the scene of that robbery testified to the statements of the two victims, who had been robbed at gunpoint as they were getting out of their car in a motel parking lot. While Smith asserts that the officer’s testimony regarding these statements was inadmissible hearsay, this argument has been addressed and rejected on several occasions by this Court.

In Evans v. State, 201 Ga. App. 20, 26 (4) (410 SE2d 146) (1991), a detective testified that appellant’s uncle told him he believed appellant had brought stolen property to his house. This Court held that the testimony was admissible to explain the detective’s conduct in going to the house and investigating whether the goods were indeed stolen. “Under OCGA § 24-3-2, conversations had in the course of a legal investigation may be admitted as original evidence to explain the conduct of a law enforcement official provided the conduct involves a matter relevant to the issue on trial.” (Citations and punctuation omitted.) Id. Here, the victims’ report of the circumstances of the robbery, including a description of the two perpetrators and the direction of their flight, explained the officer’s conduct of the investigation leading to a warrant for the arrest of Smith and another man. The other man appeared at trial and identified Smith as his partner in the motel robbery.

Decided January 27, 1999.

John R. Greco, for appellant.

Alan A. Cook, District Attorney, William K. Wynne, Jr., Assistant District Attorney, for appellee.

This Court has also held that a written statement from the victim witnessed by a police officer shortly after the commission of a charged crime is admissible as part of the res gestae, and that the officer may read the statement to the jury. “The evidence was relevant and the statement was made without premeditation. The trial court’s decision to admit the evidence under this theory was not clearly erroneous and will not be disturbed on appeal.” (Citation omitted.) Stovall v. State, 216 Ga. App. 138-139 (1) (453 SE2d 110) (1995) (officer permitted to read statement he saw written down by victim of robbery within 45 minutes of crime).

5. Smith contends the trial court erred in charging the jury on the principle of parties to a crime. But “[w]here there is any evidence, however slight, upon a particular point, it is not error to charge the law in relation to that issue.” (Citations and punctuation omitted.) Manker v. State, 223 Ga. App. 3, 5 (3) (476 SE2d 785) (1996). In Manker, this Court held that a charge on parties to a crime was justified in a drug sale case by evidence that the defendant left his vehicle to obtain the drugs and the arresting officer’s testimony that drug dealers sometimes allow others to hold their drugs to avoid police detection. Id. In this case, three witnesses testified that they were present immediately before or at the time Smith robbed the victim and were aware to varying degrees of Smith’s intentions. Smith, in contrast, contended that he was merely a passenger in the car and that two of the witnesses actually committed the robbery and assault. This evidence amply supported a charge on parties to a crime.

Judgment affirmed.

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

       “Appellant did not offer his statement as exculpatory evidence and did not set forth any facts or circumstances which showed excuse or justification. Thus, appellant’s statement is not a mere incriminating admission, but is a confession. [Cits.] As such, the statement constituted direct evidence.” Yarn v. State, 265 Ga. 787, 788 (2) (462 SE2d 359) (1995). A confession need not be made to a law enforcement officer. Mathis v. State, 249 Ga. 454, 457 (7) (291 SE2d 489) (1982) (statement to cellmate).

       Even if the victims’ statements had been improper hearsay, this testimony positively identifying Smith as the perpetrator in the similar transaction would render harmless any error in admitting them. See Richards v. State, 222 Ga. App. 853, 855-856 (3) (476 SE2d 598) (1996).


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A98A2059.
    CARRERO v. THE STATE.
    (511 SE2d 235)
   McMurray, Presiding Judge.

Defendant Carrero appeals his conviction of the offense of armed robbery. Held:

1. Two enumerations of error question the sufficiency of the evidence to authorize defendant’s conviction. The evidence stated in the light most favorable to sustaining the verdict of the jury shows that three men arrived in an automobile at a gas station at approximately 3:00 a.m. The three men entered the station and one then immediately returned to the vehicle. The two men remaining in the gas station robbed the sales clerk by threatening him with a gun. The robber who held the gun on the sales clerk during the robbery had picked up a number of items in the gas station, including a bottle of ginger ale which he put down on the counter and left. Defendant’s fingerprints were lifted from the ginger ale bottle.

Defendant acknowledged being at the scene but denied that he was a participant in the robbery. He testified that he awoke from a nap after he and his companions arrived at the gas station, entered the store, got a ginger ale from a cooler and approached the counter before he saw that his companions were conducting a robbery. Defendant testified that he put the ginger ale down and ran out of the store. He also explained that he got in the car and demanded that his companions take him home, and that due to the distance to his home and the late hour it was not practical for him to walk or seek other transportation. The sales clerk was unable to identify defendant.

The evidence is sufficient to exclude every reasonable hypothesis other than the guilt of defendant. The conflict in the evidence as to whether the ginger ale bottle was deposited on the counter by an armed and active participant of the robbery was a question for the jury. Berry v. State, 268 Ga. 437 (1), 438 (490 SE2d 389); Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489). If so, the fingerprints could have been impressed only at the time of the commission of the crime. Hutchinson v. State, 179 Ga. App. 485 (1) (347 SE2d 315). The evidence was sufficient to authorize a rational trier of fact to conclude that defendant was guilty beyond a reasonable doubt of the offense of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Defendant enumerates as error the trial court’s failure to sustain an objection to the in-court identification of defendant by the victim sales clerk. However, the factual predicate for this enumeration does not exist since there was no in-court identification of defendant. When the prosecuting attorney attempted to ask the gas station sales clerk whether he could look around the courtroom and identify one of the individuals who had been present at the gas station on the night of the robbery, defense counsel objected that no foundation had been laid for such an inquiry. After the objection was overruled, the sales clerk was permitted to answer the question, but responded that he could not make an identification. In view of the sales clerk’s response, any error in permitting the question was harmless since it is highly probable that any error did not contribute to the judgment. Howard v. State, 261 Ga. 251, 252 (403 SE2d 204); Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

Decided January 27, 1999.

Gerald P. Privin, for appellant.

Tommy K. Floyd, District Attorney, Gail M. Travillian, Assistant District Attorney, for appellee.

3. After the docketing of this appeal, defendant was granted an extension of time in which to file enumeration of errors and brief no later than July 27, 1998. Defendant then filed an enumeration of errors within the time allowed but did not file a supporting brief. We then ordered defendant to file his brief. Contemporaneously with the filing of his brief, defendant filed a document which purports to amend his enumeration of errors by adding an additional claim of error. However, we did not grant any extension of time which would authorize the December 4,1998 filing of the purported amendment of the enumeration of errors. The time for filing having expired, the enumeration of errors may not be amended. Burke v. State, 153 Ga. App. 769, 771 (7) (266 SE2d 549). Thus, we are unable to address any issues raised in the first instance by the purported amendment of defendant’s enumeration of errors.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A2412.
    LEE v. THE STATE.
    (511 SE2d 238)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of having an alcohol concentration of .10 grams or more within three hours of being in actual physical control of a moving vehicle. At trial, Deputy Ronnie Harlow of the Houston County Sheriff’s Department testified that, while patrolling at 9:54 p.m. on January 17, 1997, he observed an idling truck stopped in a driveway near the side of the road. Deputy Harlow testified that he saw defendant on the other side of the truck and that he noticed defendant standing next to a man who was hunkered down sick on his knees. The deputy explained that he asked defendant if she needed help and that defendant told him “that she was driving her husband home from a local bar, that he had got sick and wanted to stop to throw up.” Deputy Harlow testified that he then summoned an officer trained to conduct alcohol-related traffic stops because he dejected the odor of alcohol emanating from defendant.

Deputy Mark A. Tinney of the Houston County Sheriff’s Department testified that he arrived at the scene about ten or fifteen minutes after Deputy Harlow arrived at the scene; that he also detected the odor of alcohol emanating from defendant and that defendant admitted to him “that she had drove [sic] her husband to this location after picking him up from a local establishment earlier.” Deputy Tinney testified that defendant failed several field sobriety tests; that defendant submitted to two state administered breath tests about an hour and 15 minutes after Deputy Harlow first arrived at the scene and that these tests revealed that defendant’s blood alcohol concentration then exceeded .10 grams.

Defendant filed this appeal after the denial of her motion for new trial. Held:

1. Defendant’s first enumeration of error contends as follows: “The trial court erred in allowing the State to introduce evidence that [defendant] had admitted the use of alcohol, where she had been given no Miranda warnings and the circumstances clearly indicate that the admission was made while she was in custody.” This contention is not supported by the trial transcript.

After examining the page in the trial transcript which defendant gives in support of this enumeration of error as well as the trial testimony of the State’s witnesses, we find no evidence indicating that defendant admitted to consuming alcohol before or after her arrest. Deputy Harlow’s and Deputy Tinney’s trial testimony indicates that defendant only admitted to picking her husband up at a local drinking establishment and driving him to the scene of the traffic stop. We have no jurisdiction to consider the propriety of the State’s use of these admissions at trial because they are not a part of defendant’s first enumeration of error. See Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649).

2. Evidence that defendant’s blood alcohol concentration exceeded .10 grams about an hour and 15 minutes after Deputy Harlow arrived at the scene; that defendant was driving before the traffic stop; that defendant pulled off the road so that her husband could “throw up” and that defendant’s truck was idling (while her husband remained on his knees at the roadside in a heaving slouch) when Deputy Harlow arrived at the scene is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of having an alcohol concentration of .10 grams or more within three hours of being in actual physical control of a moving vehicle. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Mattarochia v. State, 200 Ga. App. 681, 682 (3) (409 SE2d 546).

Decided January 27, 1999.

Williams, Sammons & Sammons, George L. Williams, Jr., for appellant.

Cynthia T. Adams, Solicitor, Geiger & Geiger, John W. Geiger, for appellee.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Andrews, Chief Judge.

text:
    A98A2121.
    CLARK v. THE STATE.
    (510 SE2d 616)
   Andrews, Chief Judge.

James Stephen Clark moved to be discharged and acquitted of the offenses of driving under the influence and following too closely on grounds that the State failed to afford him a speedy trial after he demanded a trial pursuant to OCGA § 17-7-170. The trial court denied the motion on the basis that Clark failed to comply with the requirement of § 17-7-170 (a) that the demand for trial be entered at the court term at which the accusation was filed, or at the next succeeding term, or thereafter by special permission of the court. We find no error and affirm the judgment of the trial court.

Under OCGA § 17-7-170, an accused may, as a matter of right, enter a demand for a speedy trial at the court term at which the accusation is filed or at the next regular court term. In order to enter a demand for trial at any subsequent court term, the accused must seek special permission of the court. OCGA § 17-7-170 (a). Under § 17-7-170 (b), “[i]f the person is not tried [during the court term] the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the . . . accusation.”

The uniform traffic citations issued to Clark for driving under the influence and following too closely were filed by the State in the Cobb County State Court on June 30, 1997, during the May 1997 term of court (beginning May 5, 1997 and ending July 6, 1997). During the July 1997 term of the state court (beginning July 7, 1997 and ending August 31, 1997), the State filed a two-count accusation against Clark for the same charges made in the citations. Thereafter, on October 8, 1997, during the September 1997 term of the state court (beginning September 1, 1997 and ending November 2, 1997), Clark filed his demand for a trial pursuant to OCGA § 17-7-170. Clark did not seek special permission from the state court to file the demand for trial at the September 1997 term. On January 7, 1998, Clark moved for discharge and acquittal on the basis that, after he entered a demand for trial at the September 1997 term, the State failed to afford him a trial during that term or during the next succeeding November 1997 term of the state court (beginning November 3, 1997 and ending January 4, 1998). Ga. L. 1979, pp. 3481, 3483. It is undisputed that juries were impaneled and qualified to try Clark at the September and November terms.

In State v. Gerbert, 267 Ga. 169-170 (475 SE2d 621) (1996), the Supreme Court recognized that a uniform traffic citation may function as an accusation and adopted a bright-line rule “that the right to a speedy trial under OCGA § 17-7-170 attaches when the state files the uniform traffic citation with the court.” Accordingly, when the State filed the uniform traffic citations with the court, they functioned as an accusation, commenced the prosecution, and established the term of court at which the right to a speedy trial under § 17-7-170 attached. OCGA § 40-13-1; Millan v. State, 231 Ga. App. 121, 122 (497 SE2d 664) (1998); Shire v. State, 225 Ga. App. 306, 307 (483 SE2d 694) (1997); State v. Rish, 222 Ga. App. 729, 731-732 (476 SE2d 50) (1996). Although a formal accusation for the same charges was later filed at a subsequent term of court, it was superfluous. Smith v. State, 207 Ga. App. 762 (429 SE2d 149) (1993); Duncan v. State, 193 Ga. App. 793 (389 SE2d 365) (1989); Majia v. State, 174 Ga. App. 432, 433 (330 SE2d 171) (1985).

Since Clark’s right to a speedy trial attached when the uniform traffic citations were filed during the May 1997 term of court, OCGA § 17-7-170 (a) required that the demand for trial be entered at the May 1997 term, or at the next succeeding regular term (the July 1997 term), or thereafter by special permission of the court. Clark did not file the demand for trial as a matter of right at the May 1997 term or at the July 1997 term. When he thereafter filed the demand at the September 1997 term, he did not seek special permission from the court. Accordingly, the demand for trial was not properly filed, and the trial court correctly denied Clark’s motion for discharge and acquittal. Ingram v. State, 224 Ga. App. 271, 272 (480 SE2d 302) (1997).

Judgment affirmed.

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

Decided December 30, 1998

Reconsideration denied January 28,1999

Virgil L. Brown & Associates, Bentley C. Adams III, for appellant.

Barry E. Morgan, Solicitor, Jessica K. Moss, Katherine L. Kissam, Assistant Solicitors, for appellee.


author: Beasley, Presiding Judge.

text:
    A97A0289.
    DENT et al. v. MEMORIAL HOSPITAL OF ADEL, INC.
    (511 SE2d 259)
    Decided January 28, 1999.

      Gray & Hedrick, William E. Gray II, Law Office of David Wm. Boone, Robert G. Ballard, for appellants.

      Hall, Booth, Smith & Slover, John E. Hall, Jr., Thomas A. Graham, for appellee.
   Beasley, Presiding Judge.

In Dent v. Mem. Hosp. of Adel, 227 Ga. App. 801 (490 SE2d 509) (1997), we affirmed the judgment of the trial court. The Supreme Court granted certiorari and reversed in Dent v. Mem. Hosp. of Adel, 270 Ga. 316 (509 SE2d 908) (1998). Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

McMurray, P. J, Andrews, Ruffin, Eldridge, Barnes, JJ, and Senior Appellate Judge Harold R. Banke concur.


author: Andrews, Judge.

text:
    A98A1720.
    In the Interest of L. H., a child.
    (511 SE2d 253)
   Andrews, Judge.

Pursuant to a termination petition filed on behalf of the Georgia Department of Human Resources, the Juvenile Court of Cobb County issued an order terminating the parental rights of Martha Harrell to her child, L. H., eight months of age at the time of the termination order. Harrell appeals from the termination order.

1. “The decision to terminate parental rights involves a two-step process. First, pursuant to OCGA § 15-11-81 (a), the court must determine ‘whether there is present clear and convincing evidence of parental misconduct or inability as provided in subsection (b) of (§ 15-11-81).’ Subsection (b) provides in relevant part that ‘(t)he court determines parental misconduct or inability by finding that: (i) The child is a deprived child, as such term is defined in Code Section 15-11-2; (ii) The lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (iii) Such cause of deprivation is likely to continue or will not likely be remedied; and (iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.’ OCGA § 15-11-81 (b) (4) (A). Second, if the court finds there is clear and convincing evidence of such parental misconduct or inability, ‘the court shall then consider whether termination of parental rights 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); In the Interest of J M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991). ‘The standard of appellate review where a parent’s rights to (her) child have been severed is whether after reviewing the evidence in the light most favorable to the appellee (Georgia Department of Human Resources), any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.’ (Citations and punctuation omitted.) In the Interest of A. Q. W., 217 Ga. App. 13, 14 (456 SE2d 284) (1995). Moreover, in reviewing the evidence on appeal, this Court does not weigh the evidence or determine the credibility of witnesses; rather, we defer to the Juvenile Court’s factfinding and affirm unless the evidence fails to satisfy the appellate standard. Id.” In the Interest of K. W., 233 Ga. App. 140, 141 (2) (503 SE2d 394) (1998).

Harrell contends the juvenile court erred in terminating her parental rights under these standards because there was a lack of present clear and convincing evidence of parental misconduct or inability. To the contrary, the juvenile court’s termination order was supported by present clear and convincing evidence of parental misconduct or inability under all four requirements set forth in OCGA § 15-11-81 (b) (4) (A) (i), (ii), (iii), and (iv).

As to the requirement that the child be deprived, the juvenile court entered an order on May 13, 1997, finding that the child was deprived under OCGA § 15-11-2 (8) (A) and placing temporary custody of the child with the Cobb County Department of Family & Children Services (DFCS). In the deprivation order, the juvenile court found the following: The child, who was bom on March 23, 1997, was three weeks premature and weighed only three pounds, nine ounces at birth. Harrell was unable to properly respond to the child’s heart monitor, which was necessitated by the child’s breathing problems. During an unannounced visit to Harrell’s residence by a DFCS caseworker, Harrell appeared to be under the influence of alcohol or drugs. Harrell had a long history of drug abuse, had been hospitalized at least eight times in the last seven years for crack cocaine/alcohol abuse, and two of her prior children had tested positive at birth for cocaine and congenital syphilis. Harrell’s parental rights to three other children had been terminated in Louisiana, and another child born to her was in foster care in that state. Moreover, Harrell and the child were living with her sister in a trailer with two men. One of the men had recently been convicted of bestiality for having sex with a dog at the trailer, and the other was believed to have convictions for the sale and manufacture of controlled substances. Since no appeal was taken from the deprivation order, Harrell is bound by that determination. In the Interest of B. P., 207 Ga. App. 242, 244 (427 SE2d 593) (1993).

Other evidence supports the juvenile court’s determination that the remaining requirements of OCGA § 15-11-81 (b) (4) (A) were established. Harrell testified that she had been using crack cocaine for seven years before leaving Louisiana to move to Georgia in 1996. She testified as to three drug treatment centers she attended for short periods of time. She testified that she has not worked since moving to Georgia and that she was admitted to a drug treatment program called Mothers Making a Change (MMAC) in Georgia in the spring of 1996. At the time of the termination hearing on October 16, 1997, she had not seen her son in foster care in Louisiana in over a year. Despite the fact that Harrell’s parental rights to three other children had been terminated, she testified that it was her intention to get all of them back.

Evidence was presented that at the time L. H. was bom, Harrell was an outpatient in the MMAC drug treatment program. As an outpatient, she had a positive drug screen in November 1996. After the child was removed from her custody in April 1997, Harrell entered into the residential drug treatment program at MMAC, after which she resided at a MMAC residence and visited with the child once or twice a month. A DFCS caseworker testified that visitation with the child was made available to Harrell at a minimum of every other week, but having left the responsibility with Harrell to initiate the contact to schedule the next visitations, she failed to do so. The caseworker testified that, because of Harrell’s failure to do so, DFCS undertook the responsibility of contacting Harrell to schedule the visitations which took place. In regard to these visits, the juvenile court noted that Harrell was a gentle and enthusiastic visitor with the child, and that while at MMAC she had been observed working and behaving appropriately with other children in the nursery in a supervised setting.

While in the MMAC treatment program, a psychological assessment of Harrell was conducted on September 10, 1997, by a behavior specialist for the purpose of determining Harrell’s current level of cognitive and adaptive functioning with respect to the child custody issue. The assessment concluded that Harrell’s insight and judgment were poor and that she did not appear to be oriented to time or place. Test results showed cognitive functioning at an IQ level of 67 and adaptive behavior results corresponding to an age equivalent of 5.8 years. The adaptive behavior results found that Harrell did not respond well to directives and did not follow through, that she needed reminders about bathing and dressing, and that she did not demonstrate adequate cleaning or cooking skills. The assessment concluded that Harrell was functioning cognitively within the mild range of mental retardation with severe deficits in adaptive functioning.

During the termination hearing, the juvenile court ordered that Harrell submit to a mental evaluation by a licensed psychologist pursuant to OCGA § 15-11-87. The psychologist testified that his testing showed Harrell was mildly mentally retarded with an IQ level of 65. He testified that he gave an additional test to Harrell designed to discriminate among those of low intelligence called the Peabody Picture Vocabulary test in order to confirm and refine his initial observations. This test showed Harrell was functioning at the equivalent age of six years, five months. He testified that in his opinion, Harrell’s mental impairment was such that she could not successfully raise a child.

The above evidence supported the juvenile court’s determination that the child was deprived along with its further findings pursuant to OCGA § 15-11-81 (b) (4) (A) that the lack of proper parental care and control was the cause of the deprivation, that the cause of the deprivation is likely to continue and is not likely to be remedied, and that the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. In reviewing the evidence, the juvenile court recognized that there was positive evidence showing that Harrell was attempting to address her crack cocaine addiction in the MMAC treatment program, and that she interacted well in supervised visits with the child. Nevertheless, the juvenile court found that other evidence showing mental retardation, severe deficits in adaptive functioning, and a long history of chronic abuse of crack cocaine rendered Harrell unable to parent the child independently and supported termination of her parental rights. “A mental disability that renders a parent incapable of caring for the child is a valid legal basis for termination. [Cits.]” In the Interest of B. J. H., 194 Ga. App. 282, 283 (390 SE2d 427) (1990); In the Interest of B. P., 207 Ga. App. at 245. Moreover, Harrell’s long history of crack cocaine addiction and inability to care for her four previous children were properly considered in the decision to terminate her parental rights. “[T]he past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue. . . . The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” In the Interest of J. L. Y., 184 Ga. App. 254, 257 (361 SE2d 246) (1987).

The evidence was also sufficient to show under OCGA § 15-11-81 (a) that termination of Harrell’s parental rights was in the best interest of the child, considering the physical, mental, emotional, and moral needs of the child and the child’s need for a secure and stable home. “[T]hose same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest. Thus, a finding as to whether the termination of parental rights is in the best interest of the child represents, in essence, a finding as to whether the specifics of the parental default that have otherwise been found to exist are of such magnitude as to warrant the conclusion that the child himself would be better served by the grant of the petition to terminate. [Cits.] In this regard, our review of the entire record shows that there was likewise sufficient clear and convincing evidence to support the juvenile court’s finding that the termination of [Harrell’s] parental rights . . . would be in [the child’s] best interest.” In the Interest of G. K. J., 187 Ga. App. 443, 444 (370 SE2d 490) (1988).

2. Harrell contends the juvenile court breached the confidentiality requirements of OCGA § 26-5-17 and 42 USC § 290dd-2 by admitting evidence of records from MMAC relating to her drug treatment. Assuming that the records at issue were covered by the requirements of these sections, we find no error in their admission. The records were admitted pursuant to the order of the juvenile court after a full and fair show-cause hearing. After weighing the public interest arid the need for disclosure against the injury to the patient, to the physician-patient relationship, and to the treatment services, the juvenile court found good cause to order disclosure. We find no abuse of discretion in this finding.

3. Harrell claims the juvenile court erred in admitting evidence of the court-ordered mental evaluation conducted by a psychologist pursuant to OCGA § 15-11-87 because this violated her right under OCGA § 24-9-21 (6) to exclude privileged communications between a psychologist and patient as provided in OCGA § 43-39-16. There is no merit to this claim. The psychologist-patient privilege set forth in § 43-39-16 arises only when the patient voluntarily seeks treatment from the psychologist. In the Interest of R. M., 194 Ga. App. 888, 889 (392 SE2d 13) (1990). Since Harrell was evaluated by the psychologist pursuant to court order and received no treatment, the psychologist was a witness for the court, and communications between Harrell and the psychologist were not privileged pursuant to § 24-9-21 (6) or § 43-39-16. Id.; Christenson v. State, 261 Ga. 80, 84 (402 SE2d 41) (1991).

Decided January 28, 1999.

Reagan W. Dean, for appellant.

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

Judgment affirmed.

Beasley, P. J, and Senior Appellate Judge Harold R. Banke concur.


author: Judge Harold R. Banke.

text:
    A98A1799.
    BYRD v. THE STATE.
    (511 SE2d 551)
   Judge Harold R. Banke.

Reginald Byrd was convicted of robbery by intimidation and aggravated assault with intent to rob. On appeal, he enumerates two errors.

The underlying case arose after the victim, a store clerk, observed Byrd park his car, a blue Mustang, directly in front of the convenience store. Byrd explained to the clerk that he had parked in that unusual manner because his car had a “transmission problem” and he could not back up. After requesting a pack of cigarettes, Byrd suddenly pulled out a knife with a six-inch blade and stuck it in the clerk’s ribs. After the clerk complied with Byrd’s demand for money and Byrd left, the clerk was able to recall part of the tag number. Three weeks later, at the same store with the same clerk on duty, Byrd returned with a knife to attempt another robbery. When the victim recognized Byrd, he became frightened and started shaking. But when Byrd again brandished a knife and demanded money, the clerk slammed the register shut, fled to the back and held the door shut as Byrd pushed against it. Byrd’s vehicle, a white Thunderbird, stalled in the parking lot, enabling the clerk to write down the entire tag number. The clerk testified that he got a good look at the robber and provided a detailed description to police. Based on the partial tag number, investigators learned Byrd’s identity. The clerk selected Byrd’s photo from a photographic lineup. Although Byrd did not own either vehicle, the State’s evidence showed that Byrd had access to both vehicles during the time frame of the crimes. A witness testified that the Mustang did, in fact, have transmission problems.

Decided January 28, 1999.

Carla J. Friend, for appellant.

Paul L. Howard, Jr., District Attorney, Myrlin Earle, Bettieanne C. Hart, Assistant District Attorneys, for appellee.

1. Byrd contests the sufficiency of the evidence leading to both convictions. He claims that the State’s case contained material discrepancies and questionable evidence. Byrd asserts that on the nights of both incidents, he was home with his wife.

On appeal, the evidence must be viewed in the light most favorable to the verdict, and Byrd no longer enjoys the presumption of innocence. Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995). In essence, Byrd seeks this Court to retry his case, weigh the evidence, and judge the credibility of the witnesses, which we cannot do. Dismuke v. State, 261 Ga. 254 (1) (403 SE2d 812) (1991); Key v. State, 230 Ga. App. 359, 361 (3) (496 SE2d 497) (1998).

The evidence showed that the victim, who observed Byrd closely and conversed with him, identified Byrd as the robber. The victim’s nearly contemporaneous description of the perpetrator and events corresponded to the evidence adduced at trial. A videotape of the second incident was played to the jury as the victim narrated. Witnesses confirmed that Byrd had access to both vehicles used during the crimes. This evidence was sufficient to sustain Byrd’s convictions for both offenses within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Raising general grounds, Byrd asserts that the trial court erred in denying his motion for new trial. We disagree. Where only the “general grounds” are raised, there is nothing to review other than the sufficiency of the evidence which we addressed in Division 1. Martin v. State, 219 Ga. App. 277, 278 (1) (464 SE2d 872) (1995); see Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Beasley, Presiding Judge..

text:
    A98A1912.
    GANN v. POE et al.
    (512 SE2d 1)
   Beasley, Presiding Judge..

Discretionary appeal was granted in this workers’ compensation case to review the superior court’s decision that the employer did not havé the requisite number of employees to be subject to the Workers’ Compensation Act and the decision that the employee’s claim was time-barred.

Charles Gann was employed as a grounds man at a junkyard operated by Dan Poe. On December 11, 1995, Gann’s left ankle was crushed when the vehicle he was working on was struck by another vehicle Poe was moving. Poe did not maintain workers’ compensation coverage and paid neither medical expenses nor income benefits for the injury. Gann returned to work in July 1996 but quit after a few weeks and eventually asserted this claim against Poe a little more than one year after the date of the injury.

At the time of the injury, Poe had one other regular employee in addition to Gann, and Poe’s 15-year-old stepson Raymond Norris also was frequently at the junkyard and helped with the work. Poe denied controlling when Norris came and left but acknowledged that Norris worked just about every day, that he gave Norris a ride to work, and that he told Norris what to do. Norris received an allowance for the work at the junkyard and for household chores he performed. Poe further stated that at the time of the incident, he was training Norris to be an employee but did not actually hire him until Gann quit in 1996.

The ALJ found as fact that Norris was the third employee necessary to subject Poe to the Workers’ Compensation Act. The appellate division agreed, but the superior court concluded that the evidence did not support the finding. Whether right or wrong on this issue, the superior court correctly determined that even if Norris were an employee, Gann’s claim was barred by the statute of limitation provided in OCGA § 34-9-82.

OCGA § 34-9-82 (a) provides that “[t]he right to compensation shall be barred unless a claim therefor is filed within one year after injury, except that if payment of weekly benefits has been made or remedial treatment has been furnished by the employer on account of the injury the claim may be filed within one year after the date of the last remedial treatment furnished by the employer or within two years after the date of the last payment of weekly benefits.” Gann filed his claim within one year of his last medical treatment for the injury, but Poe did not furnish that treatment. Relying upon Ga. Inst. of Technology v. Gore, Gann contends that because Poe never maintained a panel of physicians as required by OCGA § 34-9-201, the medical treatment he received is deemed to have been furnished by Poe.

Gore addressed the specific question of “whether the admitted failure of the employer ... to maintain and post a panel of physicians renders, for statute of limitation purposes, medical treatment received by the employee on account of the injury to be remedial treatment furnished by the employer.” We concluded that OCGA §§ 34-9-82 and 34-9-201, read together, required an answer in favor of the employee.

Decided January 28, 1999.

Jack F. Witcher, Joel R. Cope, for appellant.

Smith, Wallis & Scott, Christopher B. Scott, for appellees.

But as noted by the superior court in this case, the employer in Gore was a major university that clearly was subject to the Act and that admitted its failure to post a panel of physicians as required by the Act. Likewise in Poissonnier, there was no issue as to whether the employer was subject to the Act.

The State Board apparently found a genuine issue of fact existed as to whether Poe’s stepson was an employee so as to subject Poe to the Act, because it declined to assess attorney fees for the refusal or wilful neglect to obtain workers’ compensation coverage under OCGA § 34-9-126. Under such circumstances, there is no “admitted” failure to comply with the requirements of the Act, and Gore does not apply.

Accordingly, as Gann’s claim was not filed within the time allowed in OCGA § 34-9-82, the superior court properly ruled the claim was time-barred and reversed the State Board’s award.

Judgment affirmed.

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

       167 Ga. App. 359 (306 SE2d 338) (1983).

       Id.

        Poissonnier v. Better Business Bureau of West Ga.-East Alabama, 180 Ga. App. 588 (349 SE2d 813) (1986).

       Id.


author: Ruffin, Judge.

text:
    A98A2093.
    HINTON v. THE STATE.
    (511 SE2d 547)
   Ruffin, Judge.

A jury found Royce Hinton guilty of criminal attempt to possess cocaine in violation of the Georgia Controlled Substances Act. Hinton appeals, contending that the trial court erred in failing to charge the jury on the defense of entrapment. For reasons which follow, we affirm.

On April 14, 1997, the Forest Park Police Department set up a “street sweep operation” in which undercover police officers posed as dealers selling crack cocaine. Rather than using real drugs, the police used broken sheet rock in small bags. Hinton rode a bicycle up to plainclothes officers standing outside an abandoned house in an area known for drug dealing. According to Officer Jeffrey Thomas, Hinton asked for “one rock” and handed Thomas a $10 bill. Thomas testified that it is common for drug purchasers to use a slang term such as “rock” rather than ask for crack cocaine. After Thomas handed Hinton a bag.of the simulated crack cocaine, Hinton was arrested.

According to Hinton, he never intended to purchase crack cocaine. Instead, he claims he approached the officers to inquire about purchasing scrap tin which he saw near the abandoned house. Hinton testified that he asked the officer “do you have any scrap tin?” When the officer asked Hinton how much money he had, Hinton stated that he pulled $12 out of his pocket and showed it to the officer. Hinton maintains that the officer took the money out of his hand and thrust a little bag at him. Despite his protesting that he did not want the bag, Hinton was arrested.

In direct contravention of Hinton’s testimony, Thomas testified that Hinton never mentioned scrap metal. Moreover, he stated that the yard of the abandoned house did not contain scrap metal.

Hinton claims the trial court erred in failing to instruct the jury on entrapment, a charge that he had requested in writing. “When there is a timely written request for an instruction on an affirmative defense that is supported by evidence, it is reversible error to fail to give the instruction, whether verbatim or in substance.” (Punctuation omitted.) Sapp v. State, 179 Ga. App. 614, 615 (2) (347 SE2d 354) (1986). “Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.” (Citation omitted.) Davis v. State, 269 Ga. 276, 279 (3) (496 SE2d 699) (1998).

Here, neither the State’s version nor Hinton’s version of events raises the issue of entrapment. “Entrapment requires proof that (1) the idea of the crime originated with the state agent; (2) the agent’s undue persuasion, incitement or deceit induced the crime; and (3) the defendant was not predisposed to commit the crime. [Hinton] presented no evidence of the second element.” (Citation omitted.) Haynes v. State, 230 Ga. App. 107, 108 (2) (495 SE2d 591) (1998). Moreover, “[i]t does not constitute entrapment where a defendant approaches a police officer . . . with an offer to commit a crime, if that officer then plays a role in order to provide the defendant with an opportunity to commit the intended offense.” (Punctuation omitted.) Howell v. State, 157 Ga. App. 451, 454 (3) (278 SE2d 43) (1981). In this case, the evidence demonstrates that Hinton voluntarily approached the police officers, who merely provided an opportunity for him to attempt to purchase crack cocaine.

Furthermore, Hinton does not contend that the undercover officers took any action to entice him to make the approach. Rather, he argues that he approached the officers for a reason other than the purchase of crack cocaine. In other words, Hinton’s defense is to deny committing the crime with which he had been charged. As a general rule, to warrant a jury charge on the defense of entrapment, a defendant must admit the commission of the crime, but argue that the commission was the result of the unlawful solicitation or inducement of a law enforcement agent. Griffin v. State, 154 Ga. App. 261, 263 (3) (267 SE2d 867) (1980). Thus, Hinton’s denial of the offense precludes an entrapment defense.

Decided January 28, 1999.

Richard H. Johnston & Associates, Gregory M. Brown, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

Hinton “cites the decision in Gregoroff v. State, 248 Ga. 667, 671 (285 SE2d 537) [(1982)], which states that where the State, rather than defendant, injects evidence of entrapment into the case and defendant offers no evidence of entrapment which contradicts his primary defense that he did not commit the crime charged he may request a charge on entrapment without admitting commission of the crime.” Bell v. State, 208 Ga. App. 337, 339 (4) (430 SE2d 777) (1993). Here, the State presents no evidence authorizing a jury charge on entrapment. “The State’s evidence which [Hinton] must view as suggesting entrapment is no more than a[n opportunity] to purchase contraband.” Id. However, “[a]rtifice and stratagem may be employed to catch those engaged in criminal enterprises and it is not entrapment merely to furnish an opportunity to commit an offense if the individual is predisposed to undertake such commission.” (Punctuation omitted.) Clayton v. State, 197 Ga. App. 616, 617 (398 SE2d 723) (1990). Under these circumstances, the trial court did not err in refusing to charge the jury on entrapment.

Judgment affirmed.

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


text:
    A98A2147.
    ALEXANDER v. THE STATE.
    (511 SE2d 249)
   Beasley, Presiding Judge.

Alexander was convicted of five counts of armed robbery, OCGA § 16-8-41, and other offenses. Charges of possession of a firearm by a convicted felon were then nolle pressed. Alexander’s punishment included consecutive sentences of life imprisonment for two of the armed robberies. His motion for new trial was denied. The questions presented are whether the evidence is sufficient to support the verdict and whether a new trial is required because the prosecutor was allowed to pose leading questions to a State’s witness who refused to respond to initial questioning.

Six eyewitnesses positively identified Alexander as having perpetrated armed robberies against five different victims during a three-month period. Some of the witnesses provided a description and tag number of a getaway car driven by Alexander’s accomplice.

Two of victim Knox’s neighbors testified they observed Alexander appear at their apartment complex in a gray Dodge Omni with a Florida tag driven by another individual. He exited the car, proceeded in a furtive manner to Knox’s apartment, departed from it in possession of both a pocketbook and gun, reentered the car and left. The neighbor of another victim similarly identified Alexander as the man who committed an armed robbery at an apartment in a different complex and left in the same vehicle described above. Each of the three remaining victims testified that Alexander accosted them at their residences and took their purses at gunpoint after they exited their cars. One testified that after robbing her, Alexander jumped into a gray car and got away.

Several days after the last robbery, Alexander was stopped driving the Omni after taking evasive action to avoid being stopped at a roadblock. He gave the arresting officer a false name, possessed neither a license nor proof of insurance, and fled.

During questioning by the investigating officer, Alexander admitted robbing one victim but denied possessing a weapon. In Alexander’s taped statement, which was played to the jury, he admitted snatching Knox’s purse. Police obtained information implicating Tucker and discovered a firearm during a search of his house. The investigating officer testified that when shown the weapon, Tucker exclaimed that it belonged to Alexander. Additional testimony given by the officer showed that Tucker led police to an item taken in the Knox robbery and that, during a subsequent search of Alexander’s home, another item taken in that robbery was found.

When Tucker was called as a State’s witness at Alexander’s trial, a hearing was held absent the jury to determine whether he wished to have an attorney present. Tucker stated he had already consulted with an attorney, informed him that he did not want to testify, and was advised to simply invoke his Fifth Amendment rights. The court allowed the State to call Tucker to testify.

When asked to state his name, Tucker did invoke his right to remain silent. At the request of the prosecuting attorney, Tucker was granted immunity from the use of his testimony or any information derived therefrom and ordered to testify. His refusal to respond to any questions resulted in numerous contempt adjudications. Over defense objection, the prosecuting attorney was permitted to ask Tucker a series of leading questions which suggested the answers sought. Through them, the jury could infer that Tucker was tried on the same armed robbery charges as was Alexander and was convicted of one count; that when a gun was found during the search of Tucker’s home, he exclaimed that the gun belonged to Alexander; and that Tucker gave a statement to police implicating himself and Alexander in the armed robberies. In Tucker’s written statement, which was placed in evidence, he admitted driving Alexander to and from the scene of four armed robberies committed by Alexander, but he professed ignorance of what Alexander had done until after commission of the crimes.

Defense counsel, also through leading questions during cross-examination, sought to show that Tucker did not implicate Alexander until the police found the gun in Tucker’s house and then convinced him that identifying Alexander as the main culprit would benefit himself.

1. Alexander contends the State’s questioning of Tucker constituted a violation of his Sixth Amendment right to confront the witnesses against him. In view of the holding of Lingerfelt v. State, and its progeny, we agree. In Lingerfelt, the State called a co-indictee to testify against the accused. Using a transcript from a prior commitment hearing, the State asked the witness leading questions that suggested to the jury the answers the witness had previously given. However, at trial the witness did not actually answer the questions posed. Moreover, the witness refused to answer questions posed by the defendant’s attorney on cross-examination. In reversing Linger-felt’s conviction, the Supreme Court found that “Confrontation in a criminal trial really means the right to ask questions and secure answers from the witness confronted.”

Despite the express language of Lingerfelt, the State contends it had a “right” to ask leading questions of Tucker. The trial court apparently agreed because it allowed additional questioning over Alexander’s objection. However, the State has no right to ask leading questions of a witness such as Tucker, a co-indictee who has refused to testify. Such questioning is tantamount to the State testifying on behalf of a recalcitrant witness and serves to abrogate a defendant’s fundamental right to confront, question and secure answers from his accusers.

Alexander also maintains that the introduction of Tucker’s custodial statement in violation of Bruton v. United States constituted harmful error. “Since there was no Bruton objection at trial, [Alexander] is foreclosed from raising this claim on appeal.” Nonetheless, Bruton does provide the appropriate framework for assessing the harm created by denial of the right of cross-examination. The analysis is the same as that undertaken in Hardy v. State but leads to an opposite result.

“ ‘The mere finding of a violation of the Bruton rule in the course of the trial . . . does not automatically require reversal of the ensuing criminal conviction. . . .’[Cit.]” Where evidence contained in the confession was established by other evidence, its admission in violation of the Bruton rule is considered cumulative and therefore harmless.

In determining whether a Bruton violation constitutes harmful error, “ ‘our judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of the . . . (confession) on the minds of an average jury.’ [Cit.]” “The factors which we must consider ‘include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted . . ., and, of course, the overall strength of the prosecution’s case.’ [Cit.]”

Moreover, the determination of harm caused by violation of a federal constitutional right, such as the Sixth Amendment right of confrontation, has to be made based upon United States Supreme Court standards and not state standards. In the case at bar, violation of the right requires reversal unless we find that the violation was harmless beyond a reasonable doubt.

Tucker’s confession implicating Alexander in the armed robberies was corroborated by a number of witnesses who positively identified Alexander as the perpetrator of each armed robbery. Alexander admitted committing one of the robberies, and other evidence tied him to that crime. Although he denied being in possession of a gun, two eyewitnesses testified otherwise. When apprehended, he was also driving the getaway car used in that robbery and others. Tucker’s attribution of ownership of the gun to Alexander was shown by the investigating detective’s testimony as well as by the leading questions. Alexander had opportunity to challenge the reliability of Tucker’s effort to implicate him in the crimes through leading questions posed by defense counsel’s cross-examination.

Decided January 28, 1999.

Elaine T. McGruder, for appellant.

Robert E. Keller, District Attorney, Adrian Britt, Assistant District Attorney, for appellee.

Under all the significant circumstances, particularly the overwhelming evidence of Alexander’s guilt, we conclude that to the extent Tucker’s refusal to respond to questioning deprived Alexander of his constitutional right to confront him, the constitutional violation was harmless beyond a reasonable doubt.

2. Alexander’s challenge to the sufficiency of the evidence, excluding the impermissible back-door evidence, lacks merit.

Judgment affirmed.

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

       OCGA § 24-9-28.

       235 Ga. 139 (218 SE2d 752) (1975).

        Lawrence v. State, 257 Ga. 423, 424 (3) (360 SE2d 716) (1987); Greenwood v. State, 203 Ga. App. 901 (1) (418 SE2d 160) (1992).

       235 Ga. at 140.

       391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968).

        Haynes v. State, 269 Ga. 181, 182 (2) (496 SE2d 721) (1998).

        Hardy v. State, 223 Ga. App. 597, 600-603 (478 SE2d 423) (1996) (Beasley, C. J„ concurring specially).

        Reddish v. State, 23'8 Ga. 136, 138 (1) (231 SE2d 737) (1977).

        Rachel v. State, 247 Ga. 130, 135 (4) (274 SE2d 475) (1981).

        Hardy v. State, supra at 601.

       Id. at 602.

        Farley v. State, 225 Ga. App. 687, 692 (484 SE2d 711) (1997).

        Harrington v. California, 395 U. S. 250, 253 (89 SC 1726, 23 LE2d 284) (1969).

       Compare Hardy v. State, supra.

       This is the rigorous standard for a federal constitutional violation. Delaware v. Van Arsdall, 475 U. S. 673, 684 (106 SC 1431, 89 LE2d 674) (1986).

       See generally Josey v. State, 199 Ga. App. 780, 781 (2) (406 SE2d 125) (1991).


text:
    A98A2171.
    ALBERT v. THE STATE.
    (511 SE2d 244)
   Ruffin, Judge.

A Newton County grand jury indicted Eddie Laurence Albert for trafficking in cocaine, possession of a firearm during the commission of a felony, driving under the influence of marijuana and operating a motor vehicle with no proof of insurance. Following the denial of his motion to suppress, Albert waived his right to jury trial and the case was presented to the trial court based upon the evidence adduced at the motion to suppress hearing. After the State dead-docketed the no proof of insurance charge, the trial court found Albert guilty of trafficking in cocaine, possession of a firearm and driving under the influence of marijuana. Albert appeals, asserting in several enumerations of error that the trial court erred in denying his motion to suppress and challenging the sufficiency of the evidence on the driving under the influence of marijuana conviction. Because Albert’s arguments lack merit, we affirm.

1. “When reviewing a trial court’s decision on a motion to exclude evidence, we must construe the evidence favorably to uphold the trial court’s findings and judgment, and the trial court’s findings must be upheld if any evidence supports them.” (Punctuation omitted.) McClain v. State, 226 Ga. App. 714, 717 (1) (487 SE2d 471) (1997). So construed, the evidence shows that at 11:50 a.m. on December 17, 1994, Georgia State Patrol Troopers J. M. Welch and Dan Stephens decided to set up a roadblock at the intersection of Oak Hill Road and Magnet Road in Newton County. Welch testified that pursuant to department policy, a daytime roadblock required the presence of at least two law enforcement officers and that the roadblock be in a safe location where drivers have sufficient time to stop.

The officers parked their patrol cars near the intersection, and according to Welch, who stood on Oak Hill Road just past Magnet Road, the area was easily identifiable as a police checkpoint. The first vehicle to drive up was a white Blazer driven by Albert. Although Albert signaled to turn right onto Magnet Road, Welch waved him to the side of the road and asked to see his driver’s license and proof of insurance. Upon looking into Albert’s truck, Welch spotted a pistol on the passenger seat. In addition, Welch smelled a very strong odor of marijuana and noticed that Albert’s eyes were red and glassy.

Trooper Stephens, who joined Welch, also smelled marijuana and performed a horizontal gaze nystagmus (HGN) test on Albert. Since Albert’s response to the test suggested that he was impaired, Stephens escorted him from his Blazer to the patrol car. As they were walking toward the car, Stephens noticed a large bulge in the front pocket of Albert’s pants and was concerned that Albert might have another weapon. As he patted Albert down for a weapon, Stephens heard the crackle of cellophane in Albert’s pocket and felt what appeared to be powder. Stephens, suspecting that Albert had drugs in his pocket, pulled the pocket open and found a bag of cocaine.

At that time, Welch advised Albert that he was under arrest and read him his Miranda and implied consent rights. Welch testified that Albert refused to submit to a blood test, but that he did admit that he had smoked marijuana five minutes before arriving at the roadblock.

Welch then called a drug enforcement squad for additional assistance and was later joined by agent Ken Malcolm. The officers searched Albert a second time and found more crack cocaine in his front jacket pocket. In total, the officers found 119.5 grams of cocaine on Albert.

Albert contends that the trial court erred in denying his motion to suppress based upon the illegality of the roadblock. As the Supreme Court recently noted, “[a] roadblock is satisfactory where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the ‘screening’ officer’s training and experience [are] sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.” LaFontaine v. State, 269 Ga. 251, 253 (3) (497 SE2d 367) (1998). However, these factors are not “absolute criteria which must be satisfied before a roadblock is legitimate.” Heimlich v. State, 231 Ga. App. 662, 663 (500 SE2d 388) (1998). Rather, this Court looks to the totality of the circumstances surrounding the roadblock to determine whether the factors were satisfied. Id.

“In this case, all of the criteria set forth in LaFontaine were met. The roadblock was authorized and implemented by supervisory personnel under established criteria. Even though the field troopers had some discretion as to where and when to implement a roadblock, their discretion was clearly minimal in light of the [department policy] that a [daytime] roadblock could only be conducted when two uniform officers were present and when the weather was clear. There is no evidence of unfettered discretion by the field troopers and [Albert] made no showing that the roadblock was arbitrary or oppressive to motorists. [Albert’s] arrest was not the result of a State trooper’s whimsical decision to stop only his vehicle or an arbitrary scheme to single him out.” (Citations and punctuation omitted.) Heimlich, supra at 664. Accordingly, Albert’s detention at the roadblock did not violate his Fourth Amendment rights.

Albert relies on Jorgensen v. State, 207 Ga. App. 545 (428 SE2d 440) (1993) for the proposition that Trooper Welch, who was standing on Oak Hill Road, did not have authority to stop him from exercising his “absolute right to execute a lawful right turn onto Magnet Road.” However, Jorgensen is distinguishable. In Jorgensen, a roadblock was set up 200 feet from the entrance to an apartment complex. One of the officers at the roadblock saw a BMW driven by Jorgensen pull into the apartment complex “in a normal fashion.” Based only on his intuition that Jorgensen did not live there, the officer followed him into the complex, stopped him after he had already exited the car, and subsequently arrested him for driving under the influence. Since the stop was not made pursuant to the roadblock, but was made pursuant to the officer’s whim, we held that the investigative stop was not “justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct” in accordance with Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889) (1968). (Punctuation omitted.) Jorgensen, supra at 546.

Nothing in Jorgensen supports Albert’s novel theory that a police officer working a roadblock cannot motion for cars to stop before they reach the exact point in the road where the officer is standing. Moreover, nothing in this case raises the concerns underlying our decision in Jorgensen. There is no indication that Welch had any vague “intuition” that Albert had committed a crime. Rather, Welch testified that he had no reason whatsoever to suspect Albert had committed any offense, but simply stopped Albert pursuant to the roadblock. Thus, the trial court did not err in denying Albert’s motion to suppress.

2. Albert asserts that the officers did not have probable cause to arrest him for driving under the influence of marijuana, because the officers did not have sufficient evidence of his impairment. Thus, Albert argues that since the arrest was improper, the officers’ search was improper as well. We find Albert’s arguments unavailing.

“ ‘Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction.’ ” Norman v. State, 214 Ga. App. 408, 409 (448 SE2d 219) (1994). Such an arrest “is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers . . . were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.” Callaway v. State, 257 Ga. 12, 13-14 (2) (354 SE2d 118) (1987). “The same strictness of proof required for a finding of guilt is not necessary for probable cause.” (Punctuation omitted.) Singleterry v. State, 227 Ga. App. 155 (1) (489 SE2d 42) (1997).

Here, the evidence shows that when Albert was pulled over, both Trooper Welch and Trooper Stephens noticed the odor of marijuana and the fact that Albert had red, glassy eyes. Welch noticed that Albert’s speech was slurred. Stephens, who administered the HGN test, found that Albert exhibited four signs of impairment. After Albert failed the HGN test, he was arrested. Given the totality of the circumstances, the officers had probable cause to arrest Albert.

According to Albert, the HGN test cannot be used to establish probable cause since there was no evidence presented regarding the scientific validity of this test. However, as we held in Hawkins v. State, 223 Ga. App. 34 (476 SE2d 803) (1996), “the HGN test is an accepted, common procedure that has reached a state of verifiable certainty in the scientific community” such that a trial court does not err “in admitting evidence of the HGN test without first requiring expert testimony as a foundation for its admission.” Id. at 38.

Albert further asserts that the HGN test cannot be used to establish probable cause that a person has ingested marijuana. In the past, we have recognized that the HGN test can be used to indicate whether the person tested demonstrates signs of impairment from either alcohol or drugs. Hawkins, supra; Kerr v. State, 205 Ga. App. 624 (423 SE2d 276) (1992); Manley v. State, 206 Ga. App. 281 (424 SE2d 818) (1992); State v. Sumlin, 224 Ga. App. 205 (480 SE2d 260) (1997) (physical precedent only). Moreover, we note that, without chemical testing (which Albert refused), Stephens had no way of confirming what substance Albert had ingested that was causing or contributing to the positive HGN test results.

In this case, the HGN test provided competent evidence that Albert was impaired by some substance. Although this evidence might not be sufficient to sustain a conviction for driving under the influence of marijuana, this sign of impairment together with red, glassy eyes and the smell of marijuana can be used to determine whether probable cause exists to arrest a person for driving under the influence.

Albert cites Medders v. State, 153 Ga. App. 680 (266 SE2d 331) (1980), for the proposition that the smell of marijuana is insufficient to establish probable cause. However, Medders only recognized that “there is some controversy as to whether or not the odor of burning marijuana by itself supplies sufficient probable cause for a search or an arrest.” Id. at 681. In Medders, this Court concluded that the smell of marijuana was a factor that could be taken into consideration in determining whether there is probable cause to arrest. In any event, we need not determine whether the smell of marijuana alone is sufficient to establish probable cause since, in this case, there were other factors contributing to Albert’s arrest, including his red and glassy eyes, his slurred speech, and the results of his field sobriety test.

We conclude that, given the totality of the circumstances, the police had probable cause to arrest Albert. See LaFontaine, supra. Consequently, the trial court did not err in refusing Albert’s motion to suppress on this ground.

3. Albert challenges the sufficiency of the evidence for his driving under the influence of marijuana conviction. Albert cites Brinson v. State, 232 Ga. App. 706 (503 SE2d 599) (1998), for the proposition that his refusal to submit to a drug test is fatal to the State’s case against him for driving under the influence of marijuana. According to Albert, the State must have scientific proof that he had marijuana in his blood or urine in order to prosecute him for a per se driving under the influence violation.

In Brinson, a police officer pulled Brinson over after the officer witnessed him drive over the centerline of the road. The officer testifled, inter alia, that he smelled alcohol and marijuana, that Brinson’s speech was slurred and that Brinson failed a field sobriety test. Nevertheless, the trial court, as the finder of fact, concluded that “the only evidence indicating that defendant was driving under the influence of drugs was defendant’s refusal to submit to a State-administered drug test.” We concluded that this evidence, alone, was not sufficient to convict Brinson for driving under the influence. Brinson, supra at 707.

Albert’s reliance upon Brinson is misplaced. As an initial matter, Brinson is physical precedent only and, as such, is not binding authority. Court of Appeals Rule 33 (a). Moreover, in finding Albert guilty, the trial court did not rely solely on Albert’s failure to submit to the drug test, as did the trial court in Brinson. Rather, in addition to Albert’s refusal to submit to a state-administered drug test, the trial court found Albert guilty based upon the fact that, at the time of his arrest, Albert “smelled of marijuana; had red, glassy eyes; and admitted to having smoked marijuana just prior to driving to the road block.”

It is well established that “refusal to submit to a [blood or urine] test itself may be considered as positive evidence creating an inference that the test would show the presence of the prohibited substance. OCGA § 40-6-392 (c).” (Punctuation omitted.) Mendoza v. State, 196 Ga. App. 627, 629 (2) (396 SE2d 576) (1990); Bartnick v. State, 203 Ga. App. 369 (416 SE2d 739) (1992); Brooks v. State, 187 Ga. App. 194 (369 SE2d 801) (1988). The majority in Brinson simply stated that “this evidence, alone, is insufficient to sustain [a] conviction of driving under the influence of drugs under the standard prescribed by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)].” Brinson, supra at 707. Pretermitting whether this non-binding statement in Brinson is correct, Albert’s refusal to submit to the test is not the only evidence of his guilt in this case.

As set forth in OCGA § 40-6-391 (a) (6), it is unlawful to drive a vehicle if there is any amount of marijuana present in one’s urine or blood. Since Albert smelled of marijuana, slurred his speech, admitted smoking marijuana, and refused to submit to testing to confirm the presence of marijuana, the trial court reasonably concluded that there was at least some marijuana present in his system. “Construed in favor of the verdict, the evidence was such that a rational trier of fact could have found proof of defendant’s guilt beyond a reasonable doubt.” Mendoza, supra at 629 (2).

4. Albert contends that the trial judge erred in failing to reconsider the rulings on his motion to suppress which was heard by another judge. However, Albert provides no new argument in support of this assertion, but merely reiterates his arguments in Divisions 1 and 2 of this opinion. For the reasons set forth in Divisions 1 and 2, Albert’s contention lacks merit.

Decided January 28, 1999.

Strauss & Walker, John T. Strauss, for appellant.

Alan A. Cook, District Attorney, William K. Wynne, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Johnson, Chief Judge.

text:
    A98A2305.
    ANDREWS v. THE STATE.
    (511 SE2d 258)
   Johnson, Chief Judge.

' A jury found Gene Autry Andrews guilty of criminal attempt to possess cocaine. He appeals from his conviction, alleging four enumerations of error dealing with the trial court’s charge and recharge to the jury. We affirm.

Viewed in a light most favorable to support the jury’s verdict, the record shows that Andrews, a former police officer, approached an undercover officer, asked for a “proper dime,” and pulled out a $10 bill. The officer showed Andrews a substance that looked like cocaine. Andrews tasted it, but did not like it. The officer then showed Andrews a second piece. Andrews tasted the second piece and did not like the substance, so the officer returned his money, and Andrews walked away. He was arrested as he walked away. The incident was videotaped. The tape was played for the jury.

1. Andrews contends the trial court erred in charging the jury on reasonable doubt. As part of its charge on reasonable doubt, the trial court charged: “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 any combination of these.” According to Andrews, this charge violates the presumption of innocence because it implies that a reasonable doubt must arise from the evidence. He contends that a reasonable doubt exists before any evidence is offered and must be removed by the evidence.

The charge given by the trial court has been upheld by both this Court and the Supreme Court of Georgia. In Baldwin v. State, 264 Ga. 664 (1) (449 SE2d 853) (1994), the Supreme Court considered portions of the standard charge not enumerated by Andrews as error. However, the language of the charge given in Baldwin and the charge given in the present case is virtually identical. In considering the charge as a whole, the Supreme Court noted that the concept of reasonable doubt was conveyed repeatedly and accurately to the jury and that the jury was charged properly on the definition of “reasonable doubt.” Id. at 665. In Edwards v. State, 214 Ga. App. 383, 384 (2) (448 SE2d 51) (1994), we held that the same language properly and specifically defined “reasonable doubt” as an evidentiary standard.

Decided January 28, 1999.

Stanley C. House, for appellant.

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

Considering the trial court’s charge as a whole, we find no reasonable likelihood that the jury applied a standard of proof less than constitutionally permissible. See Edwards, supra. We therefore find no reversible error.

2. Andrews argues that although the trial court charged and recharged the jury on the issue of abandonment of criminal activity, it did not, as part of that charge or recharge, instruct the jury that the state had the burden of disproving his affirmative defense of abandonment.

It is error for the trial court to refuse a request to charge the burden of proof with regard to a defendant’s affirmative defense. See Givens v. State, 264 Ga. 522, 524 (3) (448 SE2d 687) (1994). However, the record indicates that Andrews did not request the charge in question. Where no request is made, the reviewing court looks to the instructions as a whole to determine whether error was committed. See Shearer v. State, 259 Ga. 51, 54 (12) (376 SE2d 194) (1989).

Having reviewed the charge and the recharge as a whole, we conclude that the instructions adequately set out the law of abandonment. See OCGA § 16-4-5 (“Abandonment of effort to commit a crime as an affirmative defense”). In addition, the trial court’s charge repeatedly noted that the state had the burden of proving Andrews committed any crime. Andrews’ enumerations of error regarding this issue lack merit.

Judgment affirmed.

Smith and Barnes, JJ, concur.


text:
    A98A1943.
    CLARK v. THE STATE.
    (510 SE2d 907)
   McMurray, Presiding Judge.

In a special presentment, defendant LaShun Monte Clark and co-indictee Barron Anthony Blackshear were charged with a single violation of the Georgia Controlled Substances Act for selling cocaine. The evidence at defendant’s jury trial revealed that Detective Bobby Young of the Vidalia Police Department supervised a controlled buy of narcotics, with Swainsboro police officer Dennis Mason in plain clothes driving an unmarked van. Hidden in the van were patrolmen Tony Phillips and Joel Williams. On the night in question, Officer Mason “pulled up and approached three males, [and] asked one of them where [he] could find some rock. . . . One of them said, ‘Right here, man.’ And as he approached the window, [Officer Mason] gave him a twenty dollar bill and he dropped the rock cocaine in [the officer’s] hand. At that time [Officer Mason] proceeded to throw the vehicle in park and grab, the subject [ran] from [him], and [Officer Mason] proceeded to chase him on foot. While in the chase, [Officer Mason] identified [him] self as a police officer, and he continued to run. [Fifteen minutes later, Officer Mason] identified this gentleman here[, i.e., defendant, through] a picture [at the] Vidalia Police Department.” Officer Mason expressly identified defendant in court as “the one [the officer] received the cocaine from[, and] the one who took the money.”

The jury found defendant guilty as charged. Pursuant to the grant of an out-of-time appeal, defendant challenges the sufficiency of the evidence as to the identity of the perpetrator. Held:

1. Defendant first contends the trial court erroneously permitted Officer Tony Williams, one of the two patrolmen in the back of the van, to testify he overheard Barron Anthony Blackshear, “right as the drug transaction was taking place [say], ‘Shun, hurry up. It might be the ’trol.’ ” He argues this is hearsay which is not admissible to prove identity, in conjunction with Officer Williams’ knowledge that “Shun ... is what [he, i.e., defendant, is] called on the street.” We disagree.

“After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.” OCGA § 24-3-5. Compare OCGA § 24-3-52. “Contrary to defendant’s assertion, [Officer Williams’] testimony as to the [statement] made by [Blackshear] was not inadmissible simply because [Blackshear] was not available for cross-examination. Castell v. State, 250 Ga. 776, 779-780 (301 SE2d 234) (1984). The [statement] contained sufficient indicia of reliability to ensure that defendant’s Sixth Amendment rights were not violated. Id.” Robertson v. State, 268 Ga. 772, 776 (11) (493 SE2d 697). See also Hunter v. State, 179 Ga. App. 368 (347 SE2d 2) (physical precedent).

2. Next, defendant contends Officer Mason’s in-court identification constituted reversible error, arguing it was based on an impermissibly suggestive one-on-one show-up because Officer Mason identified defendant after examining only a single photograph. But defendant raised no objection to this evidence until his second motion for new trial.

Decided January 19, 1999

Reconsideration denied January 29, 1999

D. Duston Tapley, Jr., for appellant.

Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellee.

Where an objection to evidence is raised for the first time in a motion for new trial or in this Court, nothing is presented for review. Fitzgerald v. State, 193 Ga. App. 76, 77 (5) (386 SE2d 914). This Court will not consider issues and grounds for objection, even of constitutional magnitude, which were not raised and determined in the trial court. Gee v. State, 210 Ga. App. 60, 61 (3) (435 SE2d 275).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Smith, Judge.

text:
    A98A1800.
    ESENYIE et al. v. UDOFIA et al.
    (511 SE2d 260)
   Smith, Judge.

This is the second appearance of this case in this court. In First United Church v. Udofia, 223 Ga. App. 849 (479 SE2d 146) (1996) (“Udofia I”), First United Church, Inc., d/b/a Sanctified Mount Zion Church of Nigeria in the United States, along with several of its Nigerian members, appealed the entry of default judgment against them in a suit brought by several former members and nonmembers of the church who alleged the defendants had slandered them and conspired to defame them. Id. The plaintiffs alleged in Udofia I that at a New Year’s service at the church, the defendant members made slanderous allegations against them before the congregation that caused them great personal humiliation and caused financial harm to their businesses. These allegations included “practicing witchcraft, acts of bodily harm, thievery, causing infertility, stealing United States government files to harm a fellow member, and child abuse.” Id. at 850.

In Udofia I we reversed outright any award against the church. Id. at 852-853 (2). As to the remainder of the award, we found that several of the plaintiffs’ allegations against the individual defendants stated a cause of action for slander because they involved allegations of criminal behavior, such as child abuse, thievery, and stealing government files. Id. at 851-852 (1). The trial court did not, however, have jurisdiction over the claim that plaintiffs were accused of witchcraft, which involved an ecclesiastical matter. Id. Because the record included no transcript of the trial and the trial court’s judgment did not differentiate between the allegations, we directed the trial court to review its award to determine whether it was based in part upon ecclesiastical matters over which it had no jurisdiction and to revise its award accordingly. Id. We did not reach in Udofia I the defendants’ claim that the award was excessive. Id. at 854 (6).

Upon remand, the trial court did not hold a hearing, but entered an order reciting in pertinent part that it had considered “the full record” as well as its own “written trial notes of the hearing on damages.” The order addressed the two remand issues: whether the previous award was based in any part upon ecclesiastical matters and whether it was based in any part upon conduct of the church itself. The trial court dismissed the church and re-entered the entire award against the individual defendants, stating that the award was not based in any part on the plaintiffs’ allegations that they were accused of practicing witchcraft but was based wholly on the charges of criminal behavior, that the award was compensatory in nature, and that its amount had not been influenced by the inclusion of the church as a defendant.

1. In this appeal, defendants first contend in three enumerations that the trial court erred in failing to grant them a jury trial upon remand. We do not agree. “The legal effect of the reversal of a judgment on appeal is to nullify the judgment below and place the parties in the same position in which they were before judgment.” (Citation and punctuation omitted.) Franklyn Gesner Fine Paintings v. Ketcham, 259 Ga. 3, 4 (6) (a) (375 SE2d 848) (1989). Defendants do not allege they were improperly served; they simply chose not to respond to the complaint. Udofia I was in default before judgment was entered, and the record does not indicate that defendants moved to open the default upon remand. A trial therefore was not appropriate.

Moreover, direction given by this court to the trial court determines the appropriate procedure upon remand, and this court directed only that the trial court review its award and revise it if the court determined that it was based upon certain impermissible factors. We did not direct the trial court to hold a new trial, and the trial court was not authorized to do so. Marsh v. Way, 255 Ga. 284, 285 (2) (336 SE2d 795) (1985).

2. Defendants again raise their claim that the award was excessive, and we must now reach this issue. Defendants argue that because $3,000,000 was awarded, the award was obviously exorbitant. We certainly agree with defendants that this amount is indeed very large. But we cannot determine whether the evidence presented adequately supports the substantial award, because the hearing on damages was unreported.

Decided January 29, 1999

Wetzel & Associates, Michael L. Wetzel, for appellants.

James D. McGuire, Birgit G. Nomura, for appellees.

The trial court’s order recites that “[t]he Court was absolutely stricken and impressed with the demeanor of each of the witnesses, the Plaintiffs, in describing what impact the Defendants’ slander . . . has had on their lives.” The trial court specifically noted that its award was compensatory in nature, and that it had based the award “on this impact of the charges of crimes on the Plaintiffs and their families which was so credibly presented to the Court.” Because we are without a transcript of the hearing or a statutorily authorized substitute therefor, we must presume that the trial court did not err. Alexander v. Jones, 216 Ga. App. 360-361 (1) (454 SE2d 539) (1995).

Judgment affirmed.

Johnson, C. J., and Senior Appellate Judge Harold R. Banke concur.

       The trial court’s order further notes: “Beside vivid expressions of the emotional impact, the Plaintiffs described the economic impact of the charges, including the loss of patronage of their fellows in the community. They suffered reputation damages; were ostracized in the Nigerian community in Atlanta and the whole United States; their families in Nigeria were shunned as a result of the charges of crimes; and their children were ostracized by other children in their Atlanta community who would no longer play with them.”