author: Pope, Presiding Judge. BEASLEY, Judge,

text:
    A98A1110.
    CLARK v. THE STATE. COLEY v. THE STATE. POLLARD v. THE STATE. WEBSTER v. THE STATE.
    A98A1111.
    A98A1112.
    A98A1113.
    (510 SE2d 319)
   Pope, Presiding Judge.

Macon Police Officer David Mullin and Jones County Sheriff’s Investigator Jimmy Black worked together on a drug investigation of the American Legends Saloon in Macon. Black told Mullin that an informant had recently been in the bar and seen the bar owners and a bartender in possession of illegal drugs. Based on the information from Black, Mullin filed an affidavit for a warrant to search the saloon for drugs.

Mullin stated in the affidavit: “Investigator Black advised the affiant that he had met with a confidential reliable source within the past seventy two hours this source will here in after be referred to as source #1, who stated the following. Source #1 stated that within seventy two hours prior to the time and date of this affidavit it had been inside the American Legend Saloon, 2455 Emery Highway. Source #1 stated that while at this location he saw both Angie and Jude Webster, the owners of the bar, both in possession of large quantities of Methamphetamine. Source #1 also observed the bartender in possession of cocaine while behind the Bar. Affiant states that Source #1 is familiar with both Methamphetamine and cocaine from past experiences per Investigator Jimmy Black who also states that he has known source #1 for at least three years and that Source #1 has provided information which had led to the arrest of four people for Felony Drug offenses.” (Punctuation omitted.)

Based on the affidavit, a magistrate issued a search warrant for the premises of the saloon. Approximately ten officers executed the warrant on a Friday night when there were between twenty-five and forty patrons in the bar. Upon entering the saloon, the police announced their purpose and advised those present that they were going to conduct pat-down searches for weapons. Officer Mullin asked bar owner Jude Webster if he had a gun, and Webster said that he did. Mullin then conducted a pat-down of Webster, found a gun on him and seized it. Another officer asked bar patron Avis Pollard if she had a gun, and after Pollard said she did, the officer frisked her and found the gun on her person. The police also found a gun lying next to John Clark, a customer who was sitting in a booth in the bar. When Clark admitted that the gun was his, an officer frisked him and found a gun magazine in his pocket. Another officer frisked Johnny Coley, a patron in the bar, and felt what he thought were marijuana cigarettes in Coley’s pocket. The officer told Mullin of his discovery, and Mullin retrieved two marijuana cigarettes from Coley’s pocket.

Webster, Pollard and Clark were charged with weapons offenses, and Coley was charged with possessing marijuana. They were all represented by the same attorney, and all filed similar motions to suppress the respective items seized from them. They waived a jury trial and stipulated that the evidence presented at the hearing on their motions to suppress would be the same evidence for their trial. After hearing the evidence, the judge denied their motions to suppress. The judge then found Clark guilty of carrying a weapon at a public gathering, Coley guilty of possessing marijuana, Pollard guilty of carrying a concealed weapon and carrying a pistol without a license, and Webster guilty of carrying a weapon at a public gathering.

Clark, Coley, Pollard and Webster jointly appeal from the convictions, challenging the court’s denials of their motions to suppress. We affirm the denials as to Clark, Pollard and Webster, but reverse the denial of Coley’s motion to suppress.

1. Clark, Coley, Pollard and Webster argue the search warrant was not supported by probable cause because it was based on an unreliable tip. Clark, Coley and Pollard have no standing to challenge the warrant because it was issued solely for the saloon premises in which they, as mere patrons, had no possessory interest or expectation of privacy. See Cherry v. State, 230 Ga. App. 443, 445 (2) (496 SE2d 764) (1998); Bramblett v. State, 205 Ga. App. 290, 291 (2) (422 SE2d 18) (1992). Webster, however, as the owner of the bar, has standing to challenge the warrant. Even if Clark, Coley and Pollard had standing along with Webster, the argument that the warrant was not supported by probable cause because it was based on an unreliable tip is without merit.

“An informant’s tip may provide probable cause only if, under the totality of the circumstances, including consideration of the informant’s veracity and basis of knowledge, there is a fair probability that contraband or evidence of a crime will be found in a particular place. At a minimum, an affidavit supporting a search warrant must contain sufficient facts to allow the magistrate to independently gauge the reliability of both the informant and the information.” (Citations and punctuation omitted.) Sawyer v. State, 227 Ga. App. 493, 494 (2) (489 SE2d 518) (1997).

Here, the affidavit contained the following facts: the information was provided by an informant known by Investigator Black for at least three years; the informant had previously provided reliable information that led to four drug arrests; the informant is familiar with methamphetamine and cocaine; the informant had been in the saloon within the preceding seventy-two hours; and while in the saloon the informant saw the saloon owners in possession of large quantities of methamphetamine and a bartender in possession of cocaine. These facts were sufficient to allow the magistrate to gauge the reliability of the informant and to conclude that there was a fair probability that methamphetamine and cocaine would be found in the saloon.

In Pitts v. State, 212 Ga. App. 556 (442 SE2d 797) (1994), this Court held that an affidavit similar to the one in the instant case was sufficient to establish probable cause. In Pitts, the affidavit showed that the affiant sheriff received his information from another officer, who told the affiant that within the past ten days a confidential informant had bought drugs from a particular residence and that the informant had given reliable information in the past resulting in drug arrests. In upholding the search warrant for the residence, this Court found that the affidavit was sufficient to demonstrate the informant’s reliability because it stated the type of information previously supplied by the informant, the use to which such prior information was put and the elapsed time since the current information was furnished. Id. at 557 (1). Likewise, the affidavit in the instant case contains those same indicia of the informant’s reliability. Thus, contrary to the appellants’ argument, the magistrate was authorized to find that the affidavit contained reliable information providing probable cause to suspect that drugs would be found in the saloon. See Kessler v. State, 221 Ga. App. 368, 370-371 (471 SE2d 313) (1996).

2. Citing Ybarra v. Illinois, 444 U. S. 85 (100 SC 338, 62 LE2d 238) (1979), Clark, Coley, Pollard and Webster argue that the officers did not have reasonable suspicion to frisk them for weapons and therefore the evidence found pursuant to the frisks should have been suppressed. We agree that under Ybarra the frisk of Coley was improper, but we do not believe that Ybarra prohibited the seizures of guns possessed by Clark, Pollard and Webster.

In Ybarra, police officers executing a search warrant for drugs at a tavern frisked all of the customers in the tavern, including Ybarra, for weapons. The officer who frisked Ybarra felt a cigarette pack in his pocket. The officer retrieved the pack and found that it contained heroin. The Supreme Court ruled that the pat-down search of Ybarra, who was not named in the warrant, was not a justifiable frisk for weapons under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). “The initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a patdown of a person for weapons. [Cits.] When the police entered the Aurora Tap Tavern on March 1, 1976, the lighting was sufficient for them to observe the customers. Upon seeing Ybarra, they neither recognized him as a person with a criminal history nor had any particular reason to believe that he might be inclined to assault them. Moreover, as Police Agent Johnson later testified, Ybarra, whose hands were empty, gave no indication of possessing a weapon, made no gestures or other actions indicative of an intent to commit an assault, and acted generally in a manner that was not threatening. ... In short, the State is unable to articulate any specific fact that would have justified a police officer at the scene in even suspecting that Yharra was armed and dangerous.” (Footnote omitted.) Ybarra v. Illinois, 444 U. S. at 92-93.

“The Terry case created an exception to the requirement of probable cause, an exception whose ‘narrow scope this Court ‘has been careful to maintain. Under that doctrine a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. . . . Nothing in Terry can be understood to allow a generalized ‘cursory search for weapons or, indeed, any search whatever for anything but weapons. The ‘narrow scope of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.” (Footnote omitted.) Ybarra v. Illinois, 444 U. S. at 93-94.

(a) The facts surrounding the search of Coley are remarkably similar to the facts in Ybarra. Coley was not named in the search warrant, but was merely a customer in the American Legends Saloon when the police executed the warrant. The officer who frisked Coley testified he did not know Coley, he was not afraid of Coley, Coley’s hands were empty, Coley made no motions, and Coley stood completely still during the search. After feeling what he suspected were marijuana cigarettes in Coley’s pocket, the officer told Officer Mullin of his suspicions and Mullin removed the marijuana from Coley’s pocket.

As in Ybarra, the state is unable to articulate any specific fact that justified the officers in suspecting that Coley was armed and dangerous. The state attempts to justify the search of Coley by citing officer testimony that the saloon is known to be a rough place where there are often motorcycle riders who use drugs. Such generalized testimony about the place to be searched, however, does not amount to a particularized suspicion that Coley was armed and dangerous. In fact, there is no testimony that any officer suspected Coley in particular of being dangerous. On the contrary, as recited above, the officer who frisked Coley testified that he was not afraid of him and that Coley made no movements, dangerous or otherwise. Because the police had no reasonable particularized suspicion that Coley had a weapon, the mere fact that he was on the premises where an authorized narcotics search was taking place did not justify the frisk. Compare Hodges v. State, 217 Ga. App. 806, 808-809 (2) (460 SE2d 89) (1995) (officer responding to 911 emergency call involving drug possession had reasonable suspicion that defendant was dangerous because he was in a housing project where he did not belong at 5:00 a.m., the area was known for the presence of guns and drugs, and the defendant was screaming at another unseen male).

Furthermore, the frisk of Coley was not justified by OCGA § 17-5-28, which provides that officers executing a search warrant at a particular place may search any person in the place to protect themselves from attack or to prevent the concealment of things described in the warrant. The police in Ybarra relied on an almost identical statute, and the Supreme Court found that it did not justify the frisk in that case. Also, this Court has held that searches pursuant to OCGA § 17-5-28 are valid only if the state can point to particular facts from which the police reasonably inferred that the individual searched was armed and dangerous or was concealing things described in the warrant. See Benham v. State, 196 Ga. App. 241, 242-243 (395 SE2d 658) (1990); Bundy v. State, 168 Ga. App. 90, 91-92 (308 SE2d 213) (1983). Here, the officer who frisked Coley had no particular reason to suspect that Coley was armed or was concealing items described in the warrant. Compare McGugan v. State, 215 Ga. App. 535 (451 SE2d 460) (1994) (pat-down for weapons justified when defendant arrived at drug house in vehicle, refused officer’s repeated requests to get out of vehicle, and tried to pull away from officer when he eventually got out of vehicle).

Because the police lacked reasonable suspicion particular to Coley, the weapons pat-down search of him was illegal and the marijuana found pursuant to that illegal frisk should have been suppressed. See Wyatt v. State, 151 Ga. App. 207, 208-211 (1) (259 SE2d 199) (1979); Smith v. State, 139 Ga. App. 129, 131-134 (2)-(4) (227 SE2d 911) (1976).

(b) The searches of Clark, Pollard and Webster are significantly different from the improper searches of Coley and Ybarra. As to Pollard and Webster, before any pat-down searches the police asked each of them if they had weapons, they both admitted they did have guns in their possession, and thereafter the police frisked them and found weapons. “The [appellants’] voluntary admission of possession of a deadly weapon per se provided for a limited intrusion. . . . Such an intrusion at that point obviously was necessary for the protection of the officers.” Allison v. State, 188 Ga. App. 460, 462 (373 SE2d 273) (1988) (physical precedent).

(c) As for Clark, the police did not seize a gun from his person; rather, they found a gun which was lying next to him as he sat in a booth and which Clark admitted belonged to him. Thus, contrary to Clark’s argument, the gun was not found on him pursuant to a weapons pat-down search, but was found near him in plain view. “A police officer may seize what is in plain sight if, as here, he is in a place where he is constitutionally entitled to be. And where such a plain-view seizure takes place, there is in effect no search at all.” (Citations and punctuation omitted.) Massengale v. State, 189 Ga. App. 877, 879 (3) (377 SE2d 882) (1989). After finding the gun near Clark, the police had a reasonable suspicion to frisk him for other weapons, and the gun magazine found in his pocket during that frisk was also admissible evidence. See Hudgins v. State, 188 Ga. App. 798, 800 (2) (374 SE2d 566) (1988).

Accordingly, the trial court correctly denied the motions to suppress of Clark, Pollard and Webster, and their convictions are affirmed. The court erred, however, in denying the motion to suppress the marijuana seized from Coley pursuant to an illegal pat-down search for weapons. His conviction is therefore reversed.

Judgments affirmed in Case Nos. A98A1110, A98A1112 and A98A1113. Judgment reversed in Case No. A98A1111.

Ruffin, J., concurs. Beasley, J., concurs specially.

BEASLEY, Judge,

concurring specially.

I concur fully in Division 1.

As to Division 2,1 am compelled to concur because of the limitations on weapon pat-downs pronounced in Ybarra v. Illinois, 444 U. S. 85 (100 SC 338, 62 LE2d 238) (1979). The justification for a pat-down of any person must be based on a reasonable belief, tied to what is observed about that particular person, that the person is armed and presently dangerous. Id. at 92-94. Although the Supreme Court generally instructs that the totality of the circumstances must be taken into account when considering search and seizure questions, these circumstances cannot alone provide the basis for the pat-down. That is, they do not alone legally justify a belief that the person is armed and presently dangerous; although the officer’s belief may be real, it is not reasonable legally. The frisk of Coley may have been “supported by a reasonable belief that he was armed and presently dangerous,” which is “the predicate to a patdown of a person for weapons,” but it was not a constitutionally acceptable belief because it was not Coley-specific. The environment or setting and activity are insufficient to give rise to a belief because it is not particularized and unique to the person whom the officer wishes to frisk.

Yet it would seem that the circumstances of the execution of the search warrant at the particular place in this case would permit the limited pat-down. They differ from those in Ybarra, where the state statute was identical to Georgia’s OCGA § 17-5-28. Of course, the statute must be construed in conformity with the Fourth and Fourteenth Amendments; it cannot be construed to allow, more liberally than would the Fourth Amendment, the search of a person on premises being searched. That is clear from Ybarra.

The reasonable belief or suspicion that will warrant a frisk must be directed at the person to be frisked and cannot proceed just because he is on premises where an authorized search is in progress. In Ybarra, “the State [was] unable to articulate any specific fact that would have justified a police officer at the scene in even suspecting that Ybarra was armed and dangerous.” Ybarra, 444 U. S. at 93. But that should not mean that the total environment cannot be the foundation for the reasonable belief or suspicion that Coley had a weapon. In Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868; 20 LE2d 889) (1968), the Supreme Court instructed that “[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.”

In this instance about ten officers were involved in execution of the warrant at this “bikers’ bar, strictly a biker bar,” which was known for the sale of methamphetamine. And of course alcohol was sold there. The police “get numerous complaints from that area on a weekly basis.” The location was a high crime area, in which “a lot of the (motorcycle) bike crowd hangs out. . . , a lot of the Meth users, and they’re all considered fairly dangerous people on the Methamphetamine.”

In preparation for execution for the warrant, which was based on observation that the two owners were in possession of “large quantities of Methamphetamine” and the bartender was “in possession of cocaine,” “[everybody (i.e., the officers) was advised to be careful of their weapons and just, you know, be on the lookout for violence in general — ‘cause it is known to be rather rough in there ... in that particular bar.”

When the police entered, the band was playing, there was a lot of noise, there were a lot of people, and it was crowded and smokey. The police had the band quit and informed everyone why the police were there “and began a patdown for weapons,” the reason for which was “[sjtrictly for officers’ safety.” They patted them down because of their knowledge of who was there, and “their appearance [had] a lot to do with it.” The testifying officer “probably knew half the people in there.” He patted people down, he testified, “for my own safety.” Six or seven of the patrons were known to the officer as members of the Iron Cross Motorcycle Gang, including a past president whom the officer knew as “Big George.”

The owner admitted having a pistol on him, which was unlicensed. He explained that he carried the weapon because “ ‘The clientele that I have here, I have to carry a weapon because I carry money on me at all times.’ ” Coley was a part of the clientele that night.

The officers knew this saloon, as it had been under surveillance for quite some time and they had previously obtained a search warrant for methamphetamine and cocaine for the place but they did not execute it because the club lost its liquor license. So they knew what kind of dangerous situation they were entering. They “did a patdown for weapons for officers’ safety.” “We did not search anyone other than doing a patdown for weapons until we found a weapon, on them (and marijuana on Coley) and placed them under arrest.” A testifying officer had met with the owners several times and had been in the bar “many a time.” This was a Friday night, when more drug activity is expected, according to police testimony. They found marijuana on the floor, on Coley, in a jacket and on a couple of patrons, although they did not find methamphetamine or cocaine. It could easily have been destroyed before the police got to it.

Clark had a weapon on him, too, and Pollard, a female, admitted having a small pistol in her overalls pocket. Coley did not have a weapon but did have, detectable by touch, what the pat-down officer believed were two marijuana cigarettes in his vest pocket; Coley acknowledged they were his.

Decided December 3, 1998.

Mullís, Marshall, Bindley & Powell, Miguel A. Garcia, Jr., Michael H. Cummings II, for appellants.

Otis B. Scarbary, Solicitor, Russell B. Mabrey, Jr., Assistant Solicitor, for appellee.

All told, the picture differs in significant aspects from that in Ybarra, and each case must be judged on its own facts. It is a known fact that guns are often associated with the drug trade. Considering the information the police had and the specific information which formed the basis for the warrant, it would seem reasonable to believe that patrons as well as the owner had weapons. That belief was borne out.

The rationale presented by the State in its appellate brief is logical but must yield to Ybarra. In addition, Bramblett v. State, 205 Ga. App. 290 (422 SE2d 18) (1992), wherein the Court ruled that the pat-down was authorized under OCGA § 17-5-28, does not assist. Neither does Brown v. State, 181 Ga. App. 768, 770 (1) (a) (353 SE2d 572) (1987).

Regardless of the circumstances, the police cannot enter a premises to execute a search warrant and pat everyone down because they are there. Their presence itself, no matter how great a risk to officer safety is posed by the surroundings and activity to which those present are related, is not enough.

       The state’s claim that there is no evidence that Webster owns the bar is disingenuous given the fact that the search warrant affidavit relied upon by the state expressly avows that Jude and Angie Webster are the owners of the bar. Moreover, there was testimony that Webster referred to the bar patrons as his clientele, from which one could infer that he owned the bar.

       In addition to noting that investigations of suspects in vehicles are especially fraught with danger to police, the McGugan court also reasoned that it is not unreasonable for officers to anticipate that those who are suspected of involvement in the drug trade might be armed. McGugan v. State, 215 Ga. App. at 536. In the instant case, as in Ybarra, there was no vehicle involved, and although police were executing a search warrant for drugs at the saloon, they had no particularized suspicion that Coley, a mere customer on the premises, was involved in the drug trade.

       “The initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a patdown of a person for weapons. Adams v. Williams, 407 U. S. 143, 146 [(92 SC 1921, 32 LE2d 612) (1972)]; Terry v. Ohio, [392 U. S. 1, 21-24, 27 (88 SC 1868, 20 LE2d 889) (1968)]. ... [A] law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. . . . The ‘narrow scope’ of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.”

        United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981).

        Ybarra, supra, 444 U. S. at 92-93.

       See McGugan v. State, 215 Ga. App. 535, 536 (451 SE2d 460) (1994), and cases cited therein.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A98A1331.
    EVANS v. THE STATE.
    (510 SE2d 313)
   Beasley, Judge.

In 1992, Robert Lee Evans and Emma Evans Walker were jointly indicted and tried for sale of cocaine. OCGA § 16-13-30 (b). Under the version of OCGA § 16-13-30 (d) in effect at the time in question, Evans was given a mandatory sentence of life imprisonment because of prior convictions of sale of cocaine and possession of cocaine with intent to distribute.

This is Evans’ appeal of his conviction. He claims his due process rights were violated by the admission of testimony concerning an undercover narcotics agent’s pretrial identification of him through a single photographic display. He also contends the court erred in denying his motion for directed verdict of acquittal, in refusing to order disclosure of the identity of a confidential informant, and in admitting evidence of an independent crime. His final complaint is that imposition of a mandatory life sentence constituted cruel and unusual punishment under the state and federal constitutions.

Prior to trial, Evans filed motions for an in camera examination of the testimony of the confidential informant, for disclosure of the informant’s identity, and to suppress any identification testimony by the narcotics agent. At a pretrial hearing, the court reserved ruling on the motions, but no rulings appear in the record. At the beginning of trial, the court did rule that the State’s similar transaction evidence could be admitted.

Evidence presented at trial showed that at approximately 7:25 p.m. on March 10, 1992, Georgia Bureau of Investigation (GBI) agent Ford and a confidential informant went to a residential address in Perry to buy crack cocaine. At the time, Ford had been doing undercover narcotics work for the GBI for approximately ten months and had been given special training designed to enhance his ability to observe, document and identify suspected drug dealers.

When he and the informant appeared at the residence, Evans was standing on the front steps. After the informant introduced the agent to Evans, the agent said he wanted to purchase about $300 or $400 worth of crack cocaine. Evans said he could probably go next door and get something. He went to a side door of the residence and called a woman named Emma, who came outside. After Evans told her what the agent wanted, she went back inside, retrieved a flashlight, and walked around the residence. Upon her return, Agent Ford followed her into the residence and gave her $300 in exchange for six pieces of crack cocaine. The agent rejoined Evans outside and, when asked by Evans if he had gotten what he needed, replied “yes.” The agent testified that he was present at the residence for approximately ten minutes. His initial conversation with Evans lasted for a minute or two and occurred at night.

After leaving, the agent made detailed notes of Evans’ and Walker’s physical appearance. The following afternoon, he met with another GBI agent who showed him four photographs of four different individuals from whom he had purchased cocaine. One photograph was of Evans and another was of Walker. When shown the photographs, Agent Ford positively identified both of them. He also made positive identifications at trial.

Officer Canady testified that while working as an undercover agent for the City of Perry Police Department he made a street purchase of crack cocaine from Evans at approximately 8:35 p.m. in August 1988 while another male and female were present. The court admitted this evidence for the purpose of showing Evans’ identity, bent of mind, and course of conduct.

Evans testified that he did not aid in the sale of cocaine to Agent Ford on the day in question and denied ever having met him.

1. Since the trial court did not rule on Evans’ pretrial motion to suppress the identification testimony of Agent Ford, and since Evans did not object to either the pretrial or in court identification testimony when offered at trial, he waived his right to contest the admissibility of the identification evidence on appeal.

2. “The denial of a motion for directed verdict of acquittal where, as here, the motion is grounded on insufficiency of the evidence should be affirmed if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.”

The evidence that Evans was a party to the sale of cocaine and to his accomplice’s possession of it meets this test. There is no merit in his argument that the evidence was insufficient to show that he had either actual or constructive possession of the cocaine. Moreover, neither actual nor constructive possession of cocaine is an element of the offense of sale of cocaine under OCGA § 16-13-30 (b).

3. The trial court did not err in admitting the similar transaction evidence.

“ Tt is universally recognized . . . on a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible.’ ” “ ‘However, if the evidence is substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is a man of criminal character, it is admissible even if it incidentally puts the defendant’s character in issue.’ ”

To render evidence of another crime admissible, ‘“[t]wo conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter.’ ” Williams v. State and Uniform Superior Court Rule 31.3 additionally require the court to find that the evidence will be introduced for an appropriate purpose and not to raise an improper inference as to the accused’s character.

“Even if all of these criteria are met, ‘the trial court retains the sound legal discretion to exclude relevant similar crimes evidence on the ground that its probative value is substantially outweighed by the danger of unfair prejudice.’ ” “In exercising this discretion, the court should consider whether ‘the State’s need for the similar transaction evidence outweigh(s) the prejudice inherent to the defendant.’ This consideration consists of at least two questions. First, is the issue for which the State is introducing the evidence a genuinely disputed issue? . . . Second, does the State need this evidence to prove the issue, or can the fact be proved otherwise?”

Here, the State’s need for extrinsic evidence relevant to the disputed issue of identity is undisputed. The question is whether the extrinsic crime was sufficiently similar to the crime charged so as to have authorized the trial court to admit it in evidence. In resolving the question, we respect the principle that the appellate court should not disturb the findings of the trial court on the issue of similarity or connection of similar transaction evidence unless they are clearly erroneous.

“The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.”

Evans is on trial for facilitating the sale of crack cocaine from a residence in Perry, Georgia, and the State was allowed to introduce similar transaction evidence of a prior direct hand-to-hand sale of crack cocaine made on a street corner. Although there are differences between these two modes, it is the similarities and relevance we must focus on. Small amounts of cocaine were sold in retail fashion in the same city on a one-time basis after gaining trust, once through an informant and once directly, and such sales were accomplished by or through the defendant in the presence of compatriots. While the sales did not occur in exactly the same geographical place, such a factor is not decisive. Moreover, the city in which the sales took place is not a sprawling metropolis, but a relatively small city, discounting the importance of any distance between the sales.

“[I]t is clear in this case that based upon defendant’s denial of the commission of the subject crime ([sale of crack cocaine]), a past conviction involving the [sale of crack cocaine] would be most helpful to the jury, and therefore the State’s need would have outweighed the prejudice to the defendant.” As a result, the trial court’s finding that the earlier transaction was sufficiently similar cannot be said to be clearly erroneous. The consequent admission of the evidence is not reversible error.

4. But the court erred in refusing to conduct an in camera examination of the testimony of the confidential informant.

In arguing that such an examination was required, Evans relies on Moore v. State. The State counters with Chester v. State This case approximates Moore more than Chester.

In Moore, the informant introduced the undercover agent to the defendant at a bar. According to the agent, the defendant sold him cocaine in the bathroom, and the informant witnessed the sale but did not otherwise participate in it. The defendant claimed that a fourth individual present in the bathroom was the seller. This other individual could not be located, nor could he be expected to appear in court and incriminate himself. Thus, the informant was the only witness in a position to amplify or contradict the testimony of the defendant and the government witness. Under these circumstances, Moore held that the controlling case law requires the identity of the confidential informant to be disclosed if, after conducting an in camera proceeding, the trial court determines that the informant is a material witness for the defense.

Decided December 3, 1998.

Randolph E. Wynn, for appellant.

In this case, as in Moore, the informant introduced the agent to defendant and witnessed his participation in the transaction. He is the only one who can amplify or contradict the testimony of Evans and Agent Ford on the pivotal issue of identity.

Chester is distinguishable. Chester sought disclosure of a confidential informant’s identity solely to impeach his credibility based on prior criminal convictions. He was not seeking to elicit any favorable testimony from him.

In Moore, we further held that if the State could not produce the confidential informant for in camera proceedings, the trial court would be required to conduct a post-trial hearing to resolve the issue of whether the error in failing to reveal the informant’s identity was prejudicial or harmless. Here, a new trial is required under the ruling in Division 3. If the State cannot produce the informant for a new trial, the court must determine whether the prosecution should proceed in his absence. This complex issue has not been briefed or argued, and we do not address it.

5. Finally, the challenge to the constitutionality of Evans’ sentence has already been rejected by the Supreme Court of Georgia in Stephens v. State, and the cases cited therein, with respect to both constitutions.

Judgment reversed.

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

Kelly R. Burke, District Attorney, Jeffrey L. Wolff, Assistant District Attorney, for appellee.

       Ga. L. 1990, p. 992, § 1.

       The record shows the following sequence of events: The jury returned its guilty verdicts against both Evans and Walker on December 9, 1992. On January 13, 1993, the court imposed sentence, and Evans filed a motion for new trial. A motion by appointed counsel to withdraw as attorney of record was filed and granted on November 23. Between January and August 1994, Evans filed several pro se motions to obtain a copy of the trial transcript. Orders denying Evans’ motion for new trial were filed on November 22, 1996, and January 23, 1997. On February 23, 1997, the court entered an order allowing an out-of-time appeal.

        Robinson v. State, 208 Ga. App. 528, 529 (2) (430 SE2d 830) (1993); see Moore v. State, 215 Ga. App. 626 (1) (451 SE2d 534) (1994).

       (Citations and punctuation omitted.) Collins v. State, 205 Ga. App. 341, 342 (1) (422 SE2d 56) (1992).

       “As stated by the United States Supreme Court in Albrecht v. United States, 273 U. S. 1, 11 (47 SC 250, 71 LE 505) (1927), ‘. . . possessing and selling are distinct offenses. One may obviously possess without selling, and one may sell and cause to be delivered a thing of which he has never had possession.’ (Brandeis, J.)” Haynes v. State, 249 Ga. 119, 122, n. 1 (288 SE2d 185) (1982) (Marshall, J., dissenting).

       (Emphasis in original.) Smith v. State, 232 Ga. App. 290, 291 (1) (501 SE2d 523) (1998), citing Bacon v. State, 209 Ga. 261, 262 (71 SE2d 615) (1952), and Stephens v. State, 261 Ga. 467, 469 (6) (405 SE2d 483) (1991).

        Smith, supra, 232 Ga. App. at 291.

       (Emphasis in original.) Id. at 291-292.

       261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

        Smith, supra, 232 Ga. App. at 292.

       Id.

       (Emphasis in original.) Id. at 292-293.

        Mitchell v. State, 206 Ga. App. 672, 673 (2) (426 SE2d 171) (1992).

       (Citations and punctuation omitted.) Hatcher v. State, 224 Ga. App. 747, 752 (3) (482 SE2d 443) (1997); see Collins v. State, supra at 342 (1); Cantrell v. State, 210 Ga. App. 218, 220 (2) (435 SE2d 737) (1993).

       (Punctuation omitted.) Hatcher, supra, 232 Ga. App. at 751-752 (3).

       187 Ga. App. 387, 389 (2) (370 SE2d 511) (1988).

       195 Ga. App. 770, 771 (2) (395 SE2d 4) (1990).

       Compare Walton v. State, 194 Ga. App. 490, 491 (1) (390 SE2d 896) (1990).

        Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1957); Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963); Thornton v. State, 238 Ga. 160 (231 SE2d 729) (1977).

       261 Ga. at 468 (5) (not cruel and unusual punishment). See also Isom v. State, 261 Ga. 596, 597 (1) (408 SE2d 701) (1991) (not deprivation of equal protection or due process).


author: Ruffin, Judge.

text:
    A98A1426.
    BIGLEY et al. v. MOSSER.
    (509 SE2d 406)
   Ruffin, Judge.

Angela Bigley, Dianne Walker, and Albert Dunn (collectively plaintiffs) sued B. J. Mosser for libel. Mosser had previously sued each of the plaintiffs for libel in separate actions. The trial court granted Mosser’s motion to dismiss plaintiffs’ complaint, finding that their claims were logically related to those asserted by Mosser in her prior libel suits and thus should have been raised as compulsory counterclaims in such actions. Because plaintiffs’ claims were not compulsory counterclaims, we reverse.

“OCGA § 9-11-13 (a) provides that, if a claim arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim, such claim must be asserted as a compulsory counterclaim. ‘Same transaction or occurrence’ has been broadly and realistically interpreted by the appellate courts to mean whether or not there exists a logical relationship between the respective claims of the parties.” (Citations and punctuation omitted.) Aycock v. Calk, 228 Ga. App. 172, 174 (491 SE2d 383) (1997). “A party may not raise issues arising out of the same transaction which should have been pled as a compulsory counterclaim in another separate suit. If the first suit is completed, then res judicata serves to bar proceeding with the second action.” (Punctuation omitted.) Trust Co. Bank of Northwest Ga. v. Shaw, 182 Ga. App. 165, 166 (2) (355 SE2d 99) (1987). If the prior action is still pending, the trial court should dismiss the claim without prejudice, and the plaintiff may seek to raise the omitted counterclaim in the prior action. See Stowers v. Guthrie, 196 Ga. App. 86-87 (395 SE2d 371) (1990); Harbin Lumber Co. v. Fowler, 137 Ga. App. 90, 93-94 (2) (222 SE2d 878) (1975).

Apart from a certified copy of the complaint in one of the prior actions, Mosser did not submit any evidence whatsoever in support of her motion to dismiss, and no evidentiary hearing was held on the motion. The trial court’s order indicates that it is based upon “the pleadings, the exhibits to Plaintiffs’ complaint in this case, and the statements of facts set out in the parties’ briefs.” However, although the trial court could validly consider factual representations made by plaintiffs in their pleadings as admissions in judicio, Ford v. Uniroyal Goodrich Tire Co., 231 Ga. App. 11, 14 (497 SE2d 596) (1998), it was not authorized to consider, as evidence supporting Mosser’s motion, factual representations made by Mosser in her pleadings that are not otherwise supported by the record. See Mullins v. Belcher, 159 Ga. App. 520, 521 (3) (284 SE2d 35) (1981) (“a brief is not admissible as evidence and the court cannot consider factual representations in a brief which dp not appear in the record”).

Examined in this light, the record reveals the following relevant facts. Mosser is the owner of Prestige Properties, Inc. (Prestige), a property management company that provided management services for various homeowner associations, including the Lake Tara III Townhouse Association (Tara). Prestige managed Tara until its contract was terminated by Tara’s board of directors.

In 1996, Edwin Ceccarelli ran against Dunn for a seat on Tara’s board of directors, upon a platform that included returning the property management to Prestige. On March 8, 1996, plaintiffs, who opposed Ceccarelli’s candidacy, distributed a flyer in and around Tara which Mosser contends contained libelous statements about her. Based on this flyer, Mosser filed separate libel actions against each of the plaintiffs. In these actions, Mosser claimed that the flyer misquoted a Georgia Real Estate Commission ruling regarding Mosser’s fitness to act as a real estate broker. Neither Bigley, Walker, nor Dunn asserted a counterclaim against Mosser in these actions.

Ceccarelli’s supporters in the board election created the Lake Tara III Advocate (the Advocate), a newsletter supporting Ceccarelli’s candidacy, and distributed the Advocate to Tara residents. Plaintiffs allege that Mosser authored certain libelous statements printed in the Advocate’s February, March, and August 1996 issues. These issues questioned plaintiffs’ management of Tara and alleged that plaintiffs acted improperly in, among other things, conducting board elections and preventing board members from reviewing records.

In January 1997, plaintiffs filed the present action against Mosser for libel arising from the three Advocate issues. The complaint alleges that the three issues “contained false and malicious statements regarding Plaintiffs’ honesty and competency to operate and manage [Tara].” Mosser moved to dismiss the complaint, asserting that plaintiffs should have asserted their claims as compulsory counterclaims in her prior actions. The trial court granted the motion, holding that there was a logical relationship between the claims because they all arose out of the disputed board election.

Georgia’s compulsory counterclaim statute, OCGA § 9-11-13 (a), is essentially identical to Rule 13 (a) of the Federal Rules of Civil Procedure, and Georgia courts have relied upon federal cases in construing the Georgia statute. See, e.g., Myers v. United Svcs. Auto. Assn., 130 Ga. App. 357, 360 (203 SE2d 304) (1973). Indeed, the “logical relationship” test is largely derived from the United States Supreme Court’s holding in Moore v. New York Cotton Exchange, 270 U. S. 593, 610 (46 SC 367, 70 LE 750) (1926) that “ ‘[transaction’ is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship.”

Although numerous Georgia cases have applied the logical relationship test, they have not discussed what factors are to be considered in determining whether such a relationship exists. Clearly, the mere fact that some tangential relationship may be articulated between two claims is not sufficient to find them “logically related” for purposes of the compulsory counterclaim statute.

In analyzing this issue, federal courts have held that a “logical relationship . . . arises (1) when the same aggregate or operative facts serve[ ] as the basis for both claims; or (2) the case facts supporting the original claim activate[ ] legal rights of the defendant that would otherwise remain dormant.” Majik Market v. Best, 684 FSupp. 1089, 1090 (N.D. Ga. 1987). See also Eagerton v. Valuations, Inc., 698 F2d 1115, 1119 (11th Cir. 1983); Revere Copper & Brass v. Aetna Cas. &c. Co., 426 F2d 709, 715 (5th Cir. 1970). The logical relationship test “requires a determination of‘whether the essential facts of the various claims are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit.’ Harris v. Steinem, 571 F.2d 119, 123 (2nd Cir. 1978).” Blue Dane Simmental Corp. v. American Simmental Assn., 952 FSupp. 1399, 1410 (D. Neb. 1997). “[T]he ultimate inquiry is whether the facts in the main claim and counterclaim are both ‘common’ and ‘operative.’ ” Id. at 1408, n. 5.

In this case, although the board election provided the backdrop for each of the allegedly libelous statements, the election itself is not the operative fact upon which all the various claims are based. Rather, each claim is based upon a different statement, made at a different time and in a different publication. See Kitchen Hardware, Ltd. v. Kuehne & Nagel, Inc., 205 Ga. App. 94, 97 (2) (421 SE2d 550) (1992) (every publication of libelous matter is separate cause of action). Mosser’s claims are based upon an allegedly libelous statement concerning a Georgia Real Estate Commission ruling on her fitness to act as a real estate agent. In contrast, plaintiffs’ claims are based upon statements regarding their allegedly improper actions in managing the property. The success or failure of the various claims will depend upon whether each particular statement was false and defamatory. Proof that plaintiffs’ statements about the Georgia Real Estate Commission ruling were false and defamatory is irrelevant to the issue of whether Mosser’s allegations of mismanagement are false and defamatory. The fact that the statements were made in the context of a board election is only marginally, if at all, significant to the resolution of the claims.

Wigglesworth v. Teamsters Local Union No. 592, 68 FRD 609 (E.D. Va. 1975) is a federal case involving a situation somewhat analogous to the present case. In Wigglesworth, a union member sued his union for violating certain of his rights under the Labor-Management Reporting & Disclosure Act, 29 USC § 401 et seq. Specifically, the complaint alleged that, during certain union meetings, the plaintiff was prevented from exercising his right to freedom of speech and was denied his request to have the union membership informed of their rights as required by the Act. Id. at 610-611. On the day he filed his complaint, the plaintiff held a press conference in which he accused the union of being dominated by the Mafia and claimed that a past union election had been “fixed.” Id. at 611. The union filed a counterclaim against the plaintiff for slander arising out of these remarks.

In concluding that the union’s counterclaim was permissive and not compulsory, the court rejected the notion that there was a logical relationship between the claims. The court noted that the plaintiff’s claim was based solely on the union’s alleged conduct at the specific meetings in question. “Determination of the validity of that claim is limited to ascertaining whether the challenged union meetings were conducted in conformity with the mandates of the Act. However, defendants’ counterclaim for libel and slander is predicated on events which are in no wise part of the transactions or occurrences which gave rise to plaintiff’s claim.” Wigglesworth, supra at 612.

It is clear that the claims in Wigglesworth were related on some level, as they all related to allegations by the plaintiff of improper conduct by the union. Indeed, the plaintiff’s allegedly slanderous remarks were made in a press conference at the same time he filed his complaint. However, the court found that the claims were not “logically related” for purposes of the compulsory counterclaim rule because they were based on separate and distinct occurrences.

Similarly, in this case, there is some superficial relation between the various libel claims, as they are all based upon statements made in the context of a disputed election. However, the election itself is not the subject matter of each of the claims; it is the individual statements themselves, and their truth or falsity, that constitute the subject matter of the claims. Evidence regarding plaintiffs’ alleged defamatory statements is largely irrelevant to the question of whether Mosser’s statements were false and defamatory.

In cases where we have found a logical relationship between claims, we have generally focused on the fact that both claims arise out of the same basic dispute or the same contractual relationship between the parties. For example, in Goss & Goss Dev. Co. v. First Union Nat. Bank of Ga., 196 Ga. App. 436, 437 (1) (396 SE2d 19) (1990), a debtor’s claim for wrongful foreclosure was held to be a compulsory counterclaim to the lender’s suit on the note, since both claims were based on the lender’s extension of credit to the debtor. In Oh v. Bell, 221 Ga. App. 276 (470 SE2d 807) (1996), a shoe repairman obtained a criminal arrest warrant for his customer after the customer refused to pay for certain repair services. We held that the customer’s claim for malicious prosecution was logically related to the repairman’s suit for breach of contract, since both actions related to the customer’s failure to pay for the shoe repair services. Id. at 277-278. In Myers, supra at 360-361, an insured’s third-party complaint against his insurer for stubborn litigiousness was found to be logically related to the insurer’s declaratory judgment action against the insured, since both actions rested on the same insurance contract. In Medlin v. Carpenter, 174 Ga. App. 50 (329 SE2d 159) (1985), a corporation sued an employee for misuse of company funds. The employee subsequently sued the corporation and its president, alleging, among other things, that the president slandered him by making accusations of misuse of funds. We found that this action was logically related to the corporation’s prior lawsuit, since the alleged misuse of funds was the “gravamen” of such suit. Id. at 53-54 (5).

Decided December 3, 1998

Stevens & Associates, Ronald S. Stevens, James B. McClung, for appellants.

Erck, Dever & Merlin, Hayes M. Dever, Judith W. Bowman, Douglas M. Robinson, for appellee.

In each of these cases, we found that the claims were logically related because they arose out of the same dispute between the parties or the same contractual relationship, and not merely because some fact was common to the various claims. In contrast, the claims in the present case are tied together by the simple fact that the different statements were made in the context of the same election. Because the election is not the operative fact underlying all of the various claims, we do not believe that “considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit.” (Punctuation omitted.) Blue Dane, supra at 1410. Accordingly, the trial court erred in dismissing plaintiffs’ claims on the ground that they constituted compulsory counterclaims in Mosser’s prior actions.

Judgment reversed.

Pope, P. J., concurs. Beasley, J., concurs in the judgment only.

       The record contains a copy of a notice of hearing indicating that a hearing was to be held on the motion to dismiss and certain discovery motions. However, the transcript of this hearing reflects that it was limited to the discovery motions.

       As noted above, except for a copy of her complaint against Dunn, Mosser did not file certified copies of any of the pleadings in the prior actions. Although she did file a certified copy of her complaint against Dunn, this complaint does not attach a copy or otherwise indicate the nature of Dunn’s allegedly libelous statement. We have previously held that, “ ‘[i]n order to prove res judicata or collateral estoppel, a litigant must introduce those portions of the prior proceeding, duly certified, which are necessary to prove the defense.’ ” Bradley v. British Fitting Group, PLC, 221 Ga. App. 621, 622 (2) (472 SE2d 146) (1996). The same principle applies in this case, since “[t]he reason that a failure to assert a compulsory counterclaim may operate to bar the subsequent assertion of that claim in a separate suit is because of the application of the doctrine of res judicata.” Walker v. Bishop, 169 Ga. App. 236, 239 (2) (a) (312 SE2d 349) (1983). Because Mosser failed to introduce certified copies of pleadings in the prior cases showing their relationship to the claims in this case, it is arguable that this fact alone required denial of her motion to dismiss. However, it is not necessary to reach this issue, since it is apparent that the claims raised in this action were not required to have been asserted as compulsory counterclaims in the prior actions.

       See, e.g., Aycock, supra at 174; Oh v. Bell, 221 Ga. App. 276, 278 (470 SE2d 807) (1996); Goss & Goss Dev. Co. v. First Union Nat. Bank of Ga., 196 Ga. App. 436, 437 (1) (396 SE2d 19) (1990); Trust Co. Bank of Northwest Ga., supra at 166; Idowu v. Lester, 176 Ga. App. 713, 714 (1) (337 SE2d 386) (1985); Medlin v. Carpenter, 174 Ga. App. 50, 51 (2) (329 SE2d 159) (1985); Walker v. Bishop, supra at 238 (2) (a); Schoen v. Home Fed. Sav. & Loan Assn. of Atlanta, 167 Ga. App. 644, 645 (1) (307 SE2d 72) (1983); P & J Truck Lines v. Canal Ins. Co., 148 Ga. App. 3, 4 (251 SE2d 72) (1978); Myers, supra at 360-361.


text:
    A98A1453.
    CLEMENTS v. PHILLIPS.
    (510 SE2d 311)
   Ruffin, Judge.

Michael Phillips petitioned to legitimate and obtain custody of D. A. P, a minor child, in October 1994. In his verified complaint, Phillips alleged that he was D. A. P.’s natural father. Attached to the complaint was an agreement between Phillips and the child’s mother, Laura Clements (then known as Laura Starr), stating that D. A. P. was Phillips’ child and providing that Phillips would have custody of D. A. P. After Phillips filed a motion for judgment on the pleadings, the trial judge entered a final judgment legitimating the child and awarding custody to Phillips. The order also incorporated the terms of the parties’ agreement, which specified Clements’ visitation rights and required her to pay child support.

In October 1997, Clements, individually and as next friend of D. A. P, filed separate extraordinary motions for new trial and motions to set aside the judgment. In these motions, Clements claimed that Phillips was not in fact the child’s biological father. In his response, Phillips admitted that he was not the biological father. At the hearing on the motions, Clements and Phillips both admitted that they knew Phillips was not D. A. P.’s biological father prior to the legitimation. On December 23,1997, the trial court denied Clements’ motions as well as her request for appointment of a guardian ad litem. The trial court’s order purported to address only the motions filed by Clements as the child’s next friend, and not the motions Clements filed on her own behalf. We granted Clements’ application for discretionary appeal and reverse the trial court’s judgment.

1. “On an extraordinary motion for a new trial based on newly discovered evidence, it is incumbent on the movant to satisfy the court: (1) that the newly discovered evidence has come to his knowledge since the trial; (2) that want of due diligence was not the reason that the evidence was not acquired sooner; (3) that the evidence was so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness is attached to the motion or its absence accounted for; and (6) that the new evidence does not operate solely to impeach the credit of a witness.” (Punctuation omitted.) Smith v. Dept. of Human Resources, 226 Ga. App. 491, 493 (1) (487 SE2d 94) (1997).

There can be no doubt that evidence of Phillips’ nonpaternity would have caused a different result in the legitimation action, since only a father may bring such an action. See OCGA § 19-7-22; In re Pickett, 131 Ga. App. 159, 160 (205 SE2d 522) (1974) (“the father alone has the right to legitimate a child”). However, notwithstanding Phillips’ admission that he was not the father, the trial court denied the extraordinary motion for new trial on the ground that the evidence was not “newly discovered,” since Clements knew Phillips was not the father when she agreed to the legitimation.

In focusing on the mother’s knowledge that Phillips was not the father, the trial court ignored the fact that the motion for new trial was brought on behalf of the child, and not simply by the mother on her own behalf. Although a minor is required to appear through a guardian or next friend, the minor is the real party in interest, and the guardian or next friend “is merely an officer of the court to protect the rights of the minor who is considered incapable of managing his own affairs.” Kite v. Brooks, 51 Ga. App. 531, 535 (181 SE 107) (1935). D. A. P. was only 14 months old at the time of the legitimation and thus could not have known that Phillips was not his father. Because D. A. P. was only four years old when the extraordinary motion for new trial was filed, he cannot be charged with lack of diligence in failing to discover such evidence earlier. Accordingly, if D. A. P. had been represented by a guardian ad litem, instead of by his mother as next friend, there clearly would have been no barrier to his presenting evidence of Phillips’ nonpaternity in support of an extraordinary motion for new trial.

It goes without saying that a child has an interest in not being legitimated by someone who is not his father. See, e.g., In re Ashmore, 163 Ga. App. 194, 195 (1) (293 SE2d 457) (1982) (any interested party may file objection to legitimation petition). The fact that the mother was a participant in a fraudulent scheme to have the child wrongfully legitimated does not lessen this interest. Legitimation is not a game, and the child is not the prize. A child who, through the fraud of others, has been wrongfully legitimated by someone other than his father may file an extraordinary motion for new trial based on evidence of nonpaternity and is entitled to be represented in connection with the motion by someone who is able to protect his interests. If the next friend who initiates the action is unable to represent the child’s interests for any reason, then the court should appoint a separate guardian ad litem. See Stewart v. Turner, 229 Ga. App. 119, 122-123 (3) (493 SE2d 251) (1997) (where child’s interests are adverse to those of natural guardian, trial court has affirmative duty to determine whether guardian ad litem is necessary to protect child’s interests); Sanders v. Hinton, 171 Ga. 702, 708 (156 SE 812) (1931) (appointment of guardian not necessary unless next friend is not a suitable person “or for some other reason the interests of the minor would not be properly protected”). The court should not, as in this case, refuse to appoint a guardian ad litem and proceed to charge the innocent child with the fraud of his representative, thus perpetuating the effect of the fraud on the child. See Stewart, supra.

The trial court erred in denying the child’s extraordinary motion for new trial based on the mother’s participation in a fraudulent scheme to have the child legitimated by someone other than his father. All of the other showings required in an extraordinary motion for new trial were clearly met. See Smith, supra. Accordingly, the denial of the child’s extraordinary motion for new trial is hereby reversed. On remand the trial court should appoint a guardian ad litem to represent the child’s interests in this matter. The trial court is also encouraged to consider whether sanctions should be imposed upon any parties for committing fraud upon the court in connection with the filing of the petition.

2. Because of our ruling in Division 1, it is unnecessary to consider Clements’ argument that the legitimation order should be set aside under OCGA § 9-11-60 (d) (2), which allows a party to move to set aside a judgment based on “[flraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant.”

Decided December 3, 1998.

Alfred L. King, Jr., for appellant.

Teresa O. Weiner, for appellee.

Judgment reversed and case remanded with direction.

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

       “Appellee[ ] [has] failed to file a brief; accordingly, [he] must stand on the strength of the record before us, as the contents thereof are interpreted by this Court, and without benefit of any written appellate brief or oral argument.” Loftin v. Gulf Contracting Co., 224 Ga. App. 210, 213 (1) (480 SE2d 604) (1997).


text:
    A98A1546.
    RIDLEY v. THE STATE.
    (510 SE2d 113)
   Ruffin, Judge.

A jury found Homer Ridley guilty of one count of rape and one count of kidnapping with bodily injury. Upon merging the two offenses, the trial court sentenced Ridley to life imprisonment. Ridley appeals from the trial court’s order denying his motion for new trial, asserting that the trial court erred (1) in finding that the State exercised its peremptory strikes in a racially neutral manner; (2) in violating the rule of sequestration by allowing a material witness to remain in the courtroom during the proceedings; (3) in failing to take remedial action after the prosecution made improper and inflammatory remarks during closing argument; and (4) in denying his claim of ineffective assistance of trial counsel. Because the trial court erred in overruling Ridley’s Batson challenge, we reverse his conviction and remand the case for a new trial.

1. Ridley, who is black, contends that the State engaged in purposeful discrimination in the exercise of its peremptory strikes, and that the trial court therefore erred in denying his motion based on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

The transcript shows that the State used six of its ten peremptory strikes against black prospective jurors, and that it also struck one black alternate juror. Apparently, these seven jurors were the only black jurors in the entire jury pool. Although the trial court found that Ridley had not established a prima facie case of purposeful discrimination, the State concedes such a case was made. Because the State “offered racially-neutral explanations for the peremptory challenges and the trial court ruled on that basis, the preliminary issue of whether [Ridley] made a prima facie showing became moot.” Sorrells v. State, 218 Ga. App. 413 (2) (461 SE2d 904) (1995); see also Ellerbee v. State, 215 Ga. App. 312, 315 (6) (450 SE2d 443) (1994).

Thus, we do not concern ourselves with whether Ridley made a prima facie case below. Instead, “we must review the prosecutor’s stated reasons for his strikes to determine whether they overcame [Ridley’s] prima facie case of discrimination. In so doing, we must give the trial court’s factual findings great deference. We may only disregard those findings if they are clearly erroneous.” (Citations and punctuation omitted.) Lingo v. State, 263 Ga. 664, 665 (1) (b) (437 SE2d 463) (1993). “Of course, we may still disagree with the trial court’s conclusions based on those findings and where there is a strong prima facie case, as here, we must carefully scrutinize those conclusions.” Id. In that regard, we note that the State used 60 percent of its peremptory strikes against black jurors, and that it used an additional peremptory strike to purge the last black juror, an alternate, from the entire panel. When the State uses its peremptory strikes to exclude all black jurors from a panel, a court should carefully examine whether the race-neutral standard is in fact “neutral,” or whether the State has simply learned to use “the right words” in order to subvert our system of justice. In carefully scrutinizing the State’s reasons, we stress that they cannot be “too vague, too subjective, . . . non-specific, [or] non-case related.” Covin v. State, 215 Ga. App. 3, 4 (449 SE2d 550) (1994); see also Parker v. State, 219 Ga. App. 361, 362 (1) (464 SE2d 910) (1995). Under these guidelines, we review the prosecutor’s strikes as follows:

(1) The prosecutor struck two potential black jurors because one knew the defendant from high school and one knew the defendant’s family. Ridley concedes that the reasons applied to these jurors who personally knew either him or his family “are arguably valid.” We have previously held that familiarity with a defendant or his family is a race-neutral reason for striking jurors. Byron v. State, 229 Ga. App. 795, 797 (5) (495 SE2d 123) (1997); Hightower v. State, 220 Ga. App. 165, 166 (1) (469 SE2d 295) (1996); Davis v. State, 263 Ga. 5, 8 (10) (426 SE2d 844) (1993). Furthermore, the State also struck both a white male who knew Ridley and a white female alternate who knew the family of one of the prosecutor’s assistants. Accordingly, we cannot say that the trial court erred in upholding the State’s strikes of these jurors.

(2) However, the prosecutor’s striking of two potential black jurors solely because they had the same last names as defendants in other pending and prior actions gives us great concern. With respect to prospective juror Linda Felder Watkins, the prosecutor stated that his office had “many, many” charges pending against individuals named Felder. With respect to a potential alternate juror named Collins, the prosecutor stated that “many” other individuals named Collins had prior charges in his office. The prosecutor stated that he was “not sure” whether these potential jurors were in fact related to any of the individuals prosecuted by his office, and he did not ask the jurors whether they were so related. The trial court denied Ridley’s Batson motion with respect to these jurors.

In Byron, supra at 798, we explained that with respect to “strikes based on the jurors’ relationships with individuals who have been in trouble with the law, our Supreme Court has previously found that such a reason is race-neutral.” However, we find it troubling that the prosecutor’s sole reason for striking these two jurors was their last names, when he did not confirm through voir dire whether they were actually related to individuals who have been in trouble with the law. Cf. Trammel v. State, 265 Ga. 156, 157 (2) (454 SE2d 501) (1995), where the State struck a potential juror named Gilliam because she had the same last name as at least 13 people prosecuted by the district attorney’s office since 1987. The prosecutor did not ask the juror whether she was related to these people, but told the trial court that, given the small size of the town, she was concerned that there might be a relationship.

Although the Supreme Court in Trammel found the prosecutor’s explanation “troubling,” particularly because she did not ask whether the juror was in fact related to the other defendants, it nevertheless upheld the trial court’s determination that the strike was not racially motivated. Id. at 157-158. In so ruling, the Court relied upon the fact that “the trial court’s decision on the ultimate question of discriminatory intent represents a finding of fact of the sort accorded great deference on appeal.” (Punctuation omitted.) Id. at 158. The Court thus stated that “there was no showing that the prosecutor’s decision to strike was motivated by a stereotypical belief that all black persons named Gilliam were biased against the district attorney’s office.” (Punctuation omitted.) Id. at 157-158.

The Supreme Court’s analysis in Trammel is rather dubious. In allowing the State to strike a juror based on nothing more than the juror’s last name, without any inquiry into whether the juror is in fact related to a criminal defendant, the Supreme Court opens the door to a myriad of prosecutorial misconduct and essentially insulates such conduct from any meaningful review by this Court. It is a rare juror, even in a small town, who does not share a last name with some current or prior defendant, but who may not be even remotely related in any other way.

While we are bound by the Supreme Court’s ruling, we find that under the facts of this case, Trammel is distinguishable. As in Trammel, the prosecutor made no effort to ascertain whether the two potential jurors were related to prior or current defendants in the district attorney’s office. Also, as in Trammel, this case was tried in a relatively small locale, Houston County. As in Trammel, the trial judge “chose to believe the prosecutor’s race-neutral explanation for striking the two jurors in question, rejecting appellant’s assertion that the reasons were pretextual.” (Punctuation omitted.) Id. at 158. However, despite these broad similarities, the facts of the present case demand a different result. Unlike in Trammel, where the prosecutor exercised fifty percent of its strikes against blacks, and where at least one black was included in the seated jury, the State in the instant case exercised sixty percent of its peremptories against black veniremen and one against a black alternate, which resulted in excluding every black person from the entire panel.

Moreover, in Trammel, the prosecutor struck Gilliam because she could recall 13 specific defendants prosecuted by her office within the last several years with that same name. In addition, the prosecutor in Trammel testified that her notes, prior to the court’s solicitation of the State’s explanations, did not reveal whether Gilliam was white or black. Id. at 158, n. 3. While we question the Supreme Court’s decision in Trammel, we note that in the present case there is even less evidence to support the prosecutor’s strikes. Here, the prosecutor did not state that he was concerned that the case was being tried in a small community; rather, all we have is the prosecutor’s vague statement that there were “many” cases against defendants named Felder and Collins. Moreover, we note that this prosecutor did not limit his “common last name” reasoning for striking only Felder and Collins. He mentioned that he had some concern that Troupe and Johnson, discussed below, might also have relatives with pending and/or prior charges with his office. Accordingly, we reject, as clearly erroneous, the trial court’s conclusion that the State exercised its strikes in a racially neutral manner.

(3) The prosecutor stated that he struck a black female named Troupe because she regularly watched the O. J. Simpson trial and because his office had “pending and prior charges on a number of Troupes,” one of whom they had tried within the past few months. As discussed above, we are troubled by the trial court’s acceptance of the prosecutor’s explanation that he struck this juror simply because of her last name.

Moreover, we are troubled by the explanation that he also struck this juror because she regularly watched the O. J. Simpson trial. The fact that an individual has watched a trial on television does not necessarily affect his or her ability to decide a case on the merits. Likewise, although the State correctly notes that the prosecutor applied his proffered reason to both a white juror and a black juror, we are mindful of the United States Supreme Court’s admonition that the equal imposition of inequalities does not satisfy the demands of due process. Shelley v. Kraemer, supra, fn. 1.

However, the ultimate issue in resolving a Batson challenge is not whether the prosecutor’s stated reason for the strike is a good reason, but whether it is a pretext for racial discrimination. See Crawford v. State, 220 Ga. App. 786, 787-788 (1) (470 SE2d 323) (1996). Thus, given the deferential standard of review applied to a trial court’s factual determinations, we cannot say that the trial court erred in accepting the prosecutor’s explanation in this instance.

(4) Finally, the prosecutor gave as his reasons for striking two additional black females that they were young and unemployed and that they failed to make eye contact with him. In addition, the prosecutor stated that these two jurors were completely non-responsive when he asked whether any of the jurors had watched the O. J. Simpson trial, but that they gave “spontaneous, affirmative” responses when the defense asked whether any of the jurors had made up their minds about the Simpson trial. The prosecutor also stated that with regard to one of these jurors named Johnson, “there may be some pending prior charges on some kin there.” (Emphasis supplied.) However, the prosecutor admitted that “[w]e’re not sure about that.”

At the outset, we note that striking potential jurors because of their unemployment status is generally a race-neutral reason that we will uphold on appeal. See Trice v. State, 266 Ga. 102, 103 (2) (464 SE2d 205) (1995) (“The nature of a prospective juror’s employment is not a characteristic that is peculiar to any race.”). With respect to the O. J. Simpson trial, the prosecutor stated that these jurors were unresponsive when he asked whether any of the jurors had “heard or seen something about the O. J. Simpson case.” However, the prosecutor was “concerned” because these same jurors gave a “spontaneous, affirmative” response to the defense attorney’s question as to whether any of the potential jurors had made up their mind about the Simpson case. The trial judge himself stated that he observed the very conduct upon which the prosecutor based his strikes. Therefore, we “defer to the trial court’s acceptance of the State’s reasons as racially neutral, case-related, clear and reasonably specific.” Jones v. State, 226 Ga. App. 428, 430 (1) (487 SE2d 62) (1997).

The prosecutor also explained that these jurors failed to make eye contact with him during voir dire. We have held that such explanations demand closer scrutiny, as they may reflect “certain stereotypical attitudes as to particular groups.” Tharpe v. State, 262 Ga. 110, 112 (6) (416 SE2d 78) (1992). See also Parker, supra at 362. However, in this case, the trial judge himself indicated that he observed the demeanor of the prospective jurors. Moreover, as discussed above, the State had other articulable reasons for striking these jurors apart from their demeanor. Thus, this is not the situation we found improper in Parker where the prosecutor based his strikes solely “on bare hunches drawn from the jurors’ demeanor.” Id. at 363.

Finally, with regard to Johnson, while the prosecutor noted that his office might have prosecuted some of her relatives, this did not appear to be a significant motivation in his decision to strike this juror. Accordingly, the trial court’s determination that the strikes were not racially motivated was not clearly erroneous.

2. Ridley next asserts that the trial court erred in allowing a material witness to remain in the courtroom during trial and to give subsequent testimony in violation of the rule of sequestration. This argument is without merit. “No error is shown to have resulted from [the witness] remaining in the courtroom during the trial in apparent violation of the sequestration rule since no objection was made at trial.” Collins v. State, 144 Ga. App. 102, 105 (6) (240 SE2d 597) (1977). Moreover, even if Ridley had objected to the witness’ presence in the courtroom, a violation of the sequestration rule affects only the weight and credibility of the witness’ testimony, not its admissibility. Staley v. State, 224 Ga. App. 806, 809 (3) (482 SE2d 459) (1997). Although Ridley could have sought to impeach the witness’ testimony based on her presence in the courtroom throughout trial, he did not do so. Therefore, he cannot now claim that he is entitled to a new trial.

3. Next, Ridley contends that the trial court’s failure to cure two prejudicial statements made by the prosecutor during closing argument constitutes reversible error. However, “because [Ridley] failed to object to the prosecutor’s argument at trial, this issue may not be considered on appeal.” Rivers v. State, 265 Ga. 694, 697 (7) (461 SE2d 205) (1995).

4. In his final enumeration of error, Ridley, who is represented by new counsel on appeal, claims his trial attorney provided ineffective assistance of counsel. This argument lacks merit.

“A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Here, [Ridley] must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel.” (Punctuation omitted.) Randolph v. State, 225 Ga. App. 324 (484 SE2d 1) (1997).

Ridley maintains that trial counsel failed to call certain witnesses, including alibi and character witnesses and DNA or fingerprint experts; to adequately prepare him for his own testimony; and to move for the dismissal of a tainted juror. At the outset, we note that Ridley’s claim regarding an alleged tainted juror is not supported in his brief by any citation of authority or argument; therefore, his argument is deemed abandoned pursuant to Court of Appeals Rule 27 (c) (2). Even if Ridley had cited authority in support of his argument, he provides no reference to the record from which we could determine to which juror he refers. “In the absence of such reference, the Court will not search for or consider such enumeration.” Court of Appeals Rule 27 (c) (3) (i). Thus, we turn to Ridley’s remaining contentions.

Decisions regarding which witnesses to call and “all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with the client.” (Punctuation omitted.) Hudson v. State, 218 Ga. App. 671, 672 (1) (462 SE2d 775) (1995). In that regard, at the motion for new trial hearing, trial counsel testified that despite a “great deal of effort” in working with potential witnesses, he did not call them because their testimony would either conflict with the rape shield law or contradict Ridley’s own defense. Moreover, during the trial, he received information that Ridley had been arrested for a murder in another county on the basis of a DNA match and thus feared that calling any character witnesses might open the door for testimony on the unrelated case. In addition, he did not call his own DNA expert as a witness because her findings would have added even more support to the State’s case, and he was reluctant to have his own expert confirm the State’s findings. And finally, trial counsel testified that he spoke with Ridley regarding his defense on several occasions before and during trial, which included preparing him for his testimony.

Decided December 3, 1998

Daniel E. Gavrin, for appellant.

Kelly R. Burke, District Attorney, for appellee.

Under these circumstances, we find that counsel’s strategic decisions did not deprive Ridley of effective assistance of counsel. Instead, as the trial court found “after hearing all of the overwhelming evidence against Mr. Ridley, [trial counsel’s] strategy was probably the most effective.”

Judgment reversed and case remanded. Pope, P. J., concurs.

Beasley, J., concurs in the judgment only.

       However, we note that the equal imposition of inequalities does not satisfy the demands of due process. Shelley v. Kraemer, 334 U. S. 1, 22 (68 SC 836, 92 LE 1161) (1948).

       We also note that even if the Supreme Court’s approach in Trammel is appropriate in a small community, where it may be more likely that people with a common last name are related, such an approach would clearly be inappropriate in a metropolitan area where it is more likely that such persons would be complete strangers. Of course, the better practice would be for trial attorneys simply to ascertain whether prospective jurors are in fact related to any persons who have prior or pending criminal charges.

       Jurors are routinely asked whether a previous trial, television, news articles, etc. will affect their judgment, or whether they can decide the issues on the basis of the evidence presented and the law as given by the court in charge.

       We note that the conduct the prosecutor describes could also be related to the fact that the State asks its questions on voir dire first; therefore, these jurors may have felt more comfortable with the process by the time defense counsel asked questions.


author: McMURRAY, Presiding Judge.

text:
    A96A1685.
    McLANE v. ATLANTA MARKET CENTER MANAGEMENT COMPANY et al.
    (510 SE2d 358)
    Decided December 4, 1998.

      James L. Ford, Sr., Terry D. Jackson, for appellant.

      Schnader, Harrison, Segal & Lewis, C. Wilson DuBose, Mary A. Hall, Dionna K. Rutkowski, for appellees.
   McMURRAY, Presiding Judge.

In McLane v. Atlanta Market &c., 225 Ga. App. 818 (486 SE2d 30), we reversed the trial court’s denial of Laura J. McLane’s motion for partial summary judgment and affirmed in part and reversed in part the trial court’s grant of summary judgment in favor of Atlanta Market Center Management Company, Inforum Associates, Inforum, LTD, Equitable Life Assurance Society of the United States, and Equitable Real Estate Investment Management, Inc. The Supreme Court of Georgia granted certiorari and reversed in part our decision in Atlanta Market &c. v. McLane, 269 Ga. 604 (503 SE2d 278). Accordingly, that portion of our prior judgment reversed by the Supreme Court of Georgia is vacated and the judgment of the Supreme Court of Georgia is hereby made the judgment of this Court.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.


author: Ruffin, Judge. Beasley, Judge,

text:
    A98A0789.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. OSTING et al. MORRISON v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    A98A0830.
    (510 SE2d 334)
   Ruffin, Judge.

On December 18, 1995, John Edwin Morrison and George W. Osting entered into a written bailor-bailee agreement whereby Osting agreed to store Morrison’s auto parts and tools on Osting’s property and to be responsible for the loss of any such item if the loss was not caused by Morrison. On February 10, 1996, a fire destroyed Morrison’s property, which was being held at Osting’s residence. At that time, Osting held a homeowner’s insurance policy with Georgia Farm Bureau Mutual Insurance Company. On April 1, 1996, Morrison, pursuant to his agreement with Osting, sued Osting for the property damage caused by the fire. Thereafter, Georgia Farm Bureau initiated this declaratory judgment action, seeking a declaration that it was not required to provide coverage to Osting with regard to his liability under the agreement with Morrison. The parties submitted the issues to the trial court on the pleadings, depositions, and briefs. After considering the record, the trial court held that the homeowner’s policy covered Osting for the claims Morrison asserted in his suit. In Case No. A98A0789, Georgia Farm Bureau appeals, asserting that the trial court erred in concluding that the policy provides coverage for liability under the bailor-bailee agreement. In Case No. A98A0830, Morrison appeals a separate finding by the trial court that coverage was not afforded pursuant to a particular policy provision. Because the trial court failed to consider evidence of the parties’ intent as to the meaning of the bailor-bailee agreement, we reverse the trial court’s ruling and remand for further consideration.

Case No. A98A0789

1. In its two enumerations of error, Georgia Farm Bureau contends that the trial court erred in holding that Osting’s homeowner’s policy provides coverage for liability Osting assumed under the bailor-bailee agreement, and that the trial court improperly considered parol evidence in so holding.

Osting’s liability to Morrison, for which he seeks coverage under the homeowner’s policy, arises from the bailor-bailee agreement between Osting and Morrison regarding the storage of Morrison’s goods. Osting’s homeowner’s policy expressly excludes from coverage any liability “under any contract or agreement.” However, this exclusion does not apply to written contracts “that directly relate to the ownership, maintenance or use of an insured location.” Thus, the relevant question becomes whether the bailor-bailee agreement between Osting and Morrison, “directly relates” to the ownership, maintenance, or use of Osting’s residence.

The bailor-bailee agreement does not specifically refer to Osting’s residence, but states that “OSTING shall store for MORRISON his auto parts, motors, tools, and automotive related accessories on the property of OSTING.” (Emphasis supplied.) On its face, it is not clear whether the phrase “the property of OSTING” refers specifically to Osting’s residence, which is the insured property under the homeowner’s policy. Because the agreement is ambiguous in this respect, the trial court was required to consider parol evidence to determine the intent of the parties. See Kellos v. Parker-Sharpe, Inc., 245 Ga. 130, 132 (1) (263 SE2d 138) (1980). “It is axiomatic that a contract should be construed by the court where the language is undisputed but the meaning of that language is in dispute. OCGA § 13-2-1. It is the responsibility of the court to determine whether an ambiguity exists. If the contract does not require disentanglement of the language by a jury, i.e., the words used are plain and clear in their common usage, it remains the duty of the trial court to look to the language of the contract with a view to effectuating the intent of the parties.” (Citations and punctuation omitted.) Candler v. Davis & Upchurch, 204 Ga. App. 167, 168 (2) (419 SE2d 69) (1992).

In holding that the bailor-bailee agreement directly related to Osting’s residence, the trial court based its decision solely on the fact that, at the time Osting entered into the agreement, he owned no property other than his residence. Based on this fact alone, the court held that “the [bailor-bailee agreement] necessarily ‘directly related’ to the ‘insured location.’ ” The court thus summarily rejected Georgia Farm Bureau’s argument that, pursuant to the agreement, Osting could have stored Morrison’s property at locations other than his residence and still been in compliance with the bailor-bailee agreement.

Clearly, the fact that Osting owned no property other than his residence supports a finding that Osting planned to store Morrison’s goods at Osting’s residence. However, in determining whether the homeowner’s policy provides coverage, the relevant question is not whether Osting planned to use the insured premises to store the goods, but whether the bailor-bailee agreement itself “directly relates” to the insured premises. If the agreement allows Osting to store the goods at his residence, but also allows him to store the goods at other locations (e.g., at a rented storage shed), then it cannot be said that the agreement itself “directly relates” to the use of the insured premises. Rather, the agreement would relate to the storage of goods, and not to the use of property. The trial court thus erred in focusing on how the parties intended to carry out the terms of the contract, rather than focusing on what the parties intended the contract to require.

“The cardinal rule for construing a contract is to ascertain the intent of the parties.” (Punctuation omitted.) Senske v. Harris Trust & Savings Bank, 233 Ga. App. 407, 409 (504 SE2d 272) (1998). In his deposition, Osting was questioned at length regarding the intent of the agreement, and testified that the agreement did not require him to store Morrison’s goods at his residence. He testified that he could have acquired another storage area separate from his residence and still been in compliance with the bailor-bailee agreement. Moreover, Osting testified that he would be in compliance with the agreement no matter where he stored Morrison’s property, “]j]ust as long as it was safe.” Osting agreed that the agreement “did not relate particularly to where the stuff was. It just happened to be there at the time of the fire.” In his deposition, Morrison also testified that the agreement did not specifically require that the goods be stored at Osting’s residence, although he stated that the parties understood the goods would be stored “on property then existing and owned by Mr. Osting.”

Thus, there is at least a conflict in the evidence as to whether the agreement requires that the goods be stored at Osting’s residence. In its ruling, the trial court failed to resolve this conflict, and focused instead on where the parties planned to store Morrison’s goods. The trial court thus failed to consider the effect of evidence regarding the parties’ intent as to the meaning of the contract. Accordingly, the trial court’s ruling must be reversed and this case remanded for further action consistent with this opinion.

Case No. A98A0830

2. Morrison, in his cross-appeal, asserts that the trial court erred in holding that Osting’s homeowner’s policy did not provide liability coverage under an additional exception to the exclusion for liability under contracts or agreements. We disagree.

As stated above, Osting’s homeowner’s policy excludes from coverage any liability Osting assumes under a contract or agreement. However, this exclusion does not apply to written contracts “where the liability of others is assumed by the insured prior to an occurrence.” We agree with the trial court’s conclusion that this language is inapplicable to this case. Under the clear language of the bailorbailee agreement, Osting created his own liability for damage to Morrison’s personal property; he did not assume the liability of others. In fact, the liability of others is not mentioned anywhere in the agreement. Specifically, the agreement provides that “OSTING will be fully responsible for the safety and well being of property belonging to MORRISON while on the property of OSTING, and shall be liable for any loss to the property of MORRISON not caused by MORRISON.” As long as Morrison himself does not damage his property, the responsibility for any damage lies with Osting. Accordingly, the trial court correctly held that the homeowner’s policy provides no liability coverage under this provision.

Judgment affirmed in Case No. A98A0830.

Andrews, C. J., McMurray, P. J, Pope, P. J., Beasley and Eldridge, JJ, concur. Blackburn, J., not participating. Judgment reversed and case remanded in Case No. A98A0789. Andrews, C. J., McMurray, P. J, and Eldridge, J., concur. Pope, P. J., and Beasley, J., dissent. Blackburn, J., not participating.

Beasley, Judge,

concurring in Case No. A98A0830 and dissenting in Case No. A98A0789.

I concur in Division 2 but respectfully dissent as to Division 1.

The trial court’s judgment in this declaratory judgment action, which it tried upon the record by agreement of the parties, must be affirmed. It comes to us not after an order on summary judgment motions, which were denied, but after a fact-finding trial.

The court focused on the four corners of bailee Osting’s insurance policy and the four corners of the bailor-bailee agreement. It took into account the undisputed fact that at the times of the agreement (December 18, 1995) and of the fire loss (February 10, 1996), the only real property owned by the bailee was his insured residence premises where the bailed personal property was stored.

Georgia Farm Bureau Mutual’s policy provided personal liability to the Ostings excluding liability “under any contract or agreement.” But it further stated: “However, this exclusion does not apply to written contracts: (a) that directly relate to the ownership, maintenance or use of an insured location.” The “premises covered” were expressly identified as in fact the premises where the storage and fire occurred and certain other premises which might thereafter be acquired or used or rented by the insured.

By the written bailment contract, Osting agreed to “store” certain auto items “on the property of OSTING (hereinafter referred to as ‘STORAGE’)” and more specifically, that “OSTING shall provide private garage areas for STORAGE of his own choosing” on his property so long as it was “indoors or under shelter, readily accessible, clean enough for the intended use, and will be undisturbed. . . .” A structure housing three connecting buildings behind the Osting residence was used for the storage.

Contracts, which both documents are, must be construed in accordance with their intendment. Their construction was for the court, because it is a matter of law. OCGA § 13-2-1. Their plain language established that the storage of bailor Morrison’s property was to be in private garage areas on bailee Osting’s property. The trial court’s judgment is in accordance with the relevant principles of law recited in Candler v. Davis & Upchurch, 204 Ga. App. 167, 168-169 (2) (419 SE2d 69) (1992).

Decided December 4, 1998.

John T. Croley, Jr., for Georgia Farm Bureau.

Jason A. Craig, for Osting.

John E. Morrison, pro se.

To the extent there was any dispute of fact, which appears absent insofar as material facts are concerned, the judge in this case was the factfinder. OCGA § 13-2-1. Its findings are not to be set aside unless clearly erroneous. Price v. Age, Ltd., 194 Ga. App. 141, 142 (1) (390 SE2d 242) (1990). Evidence that the insured premises were the location intended for the storage, and where the storage actually took place without further discussion, question or change, did not “contradict or vary the terms” of the valid written bailment contract. Such would be prohibited by the parol evidence rule, OCGA § 24-6-1. But “surrounding circumstances are always proper subjects of proof to aid in the construction of contracts.” OCGA § 24-6-4. The same rule applies to the fact that “the property of OSTING” referred to in the bailment agreement meant the same premises which were covered by the policy; it was not fatal that the agreement did not recite the address.

Not relevant is conjecture about what might have happened if Osting had ever acquired other property not covered by the policy and moved the bailed items there. In fact, Morrison testified: “I don’t think it was ever contemplated in the contract that the property would ever be placed anywhere else.” The case was properly decided on what actually transpired.

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