text:
    A92A2426.
    LEDFORD v. THE STATE.
    (429 SE2d 124)
   Andrews, Judge.

Ledford was convicted of one count each of armed robbery, reckless driving, and attempting to elude a police officer and he appeals the judgment of conviction and sentence entered on the jury’s verdict.

Viewed in favor of the verdict, the evidence was that on November 18, 1991, Ledford drove to a local mall in his mother’s black Escort with red stripes. He saw the victim walking to her car and drove up behind the car where he stopped, exited his car, pulled a pistol on her, and took her purse containing about $40. Two other women witnessed the robbery and one drove after the Escort, reporting back to the police the license number was either FLE 201 or FLE 901. The officer responding to the scene put out a lookout for the car and two Sheriff’s deputies driving the marked K-9 unit spotted the car bearing license number FLE 901, activated the siren and blue lights on top of the unit, and began pursuit. The chase continued on Satellite Boulevard at speeds up to 80 mph. Attempting to make a turn, the Escort spun 180 degrees and came to a momentary stop in front of a couple waiting to make the left turn. The couple had been sitting at the intersection and noticed nothing out of the ordinary until the Escort sped away after spinning, at which time they saw a pocketbook in the intersection where the Escort had been. They retrieved the purse and the gun which was lying in front of it and took them to the police. The officers had cornered the Escort on a cul-de-sac and arrested Ledford, its only occupant. In his pocket, the officers found folded cash consisting of one twenty, one ten, one five and four one-dollar bills.

Ledford was immediately taken back to the mall where the victim identified him and her purse. Ledford’s defense was alibi, contending that he was home eating pizza with his mother and sister at the time of the robbery and was mistakenly stopped as he was driving to get a part for his car.

1. After the jury was struck, Ledford, who is white as was the victim, made a timely challenge to the striking of three black jurors based on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). See Georgia v. McCollum, 505 U. S._ (112 SC 2348, 120 LE2d 33) (1992).

The court stated for the record the composition of the seated jury. As originally selected from a panel of 42, including 8 blacks, or 19 percent, the seated jury was composed of 9 whites and 3 blacks, or 25 percent. The State used five of its ten peremptory strikes on blacks.

Since the court required the prosecution to explain its strikes, the issue of whether a prima facie showing of discrimination had been made has become moot. Lewis v. State, 262 Ga. 679 (2) (424 SE2d 626) (1993).

The court correctly refused to accept the explanation for the strike of juror Blasingame based upon his membership in the NAACP and he was seated on the jury, resulting in four black jurors. Randolph v. State, 203 Ga. App. 115, 116 (3) (416 SE2d 117) (1992).

The two strikes here alleged to be racially motivated were jurors Veal and Johnson. The reasons given by the State for these strikes were that both jurors had sons near the same age as Ledford, who was 26 and single, and that as a “general proposition,” the State struck persons close in age or who had single sons close in age to Ledford. Juror Veal, the fourth strike exercised by the State, had single sons ages 28 and 30. Also, Juror Johnson, the sixth State strike, had a single son age 26. The first two strikes used by the State were on non-minority jurors as were the last three. The trial court found these explanations racially neutral.

“ ‘Once the prosecution establishes a neutral explanation related to the particular case to be tried, the trial court then will have the duty to determine if the defendant has established purposeful discrimination. [Cit.] The trial court’s findings are, of course, entitled to great deference, . . . and will be affirmed unless clearly erroneous. Gamble v. State, 257 Ga. 325, 327 [(5) (357 SE2d 792) (1987)]. Because the U. S. Supreme Court has cautioned us that the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility ... a reviewing court ordinarily should give those findings great deference. [Cit.]’. . . [Cits.]” Kincey v. State, 191 Ga. App. 300 (1) (381 SE2d 439) (1989).

Decided March 9, 1993.

Ronnie K. Batchelor, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

“Under the circumstances, age was a ‘neutral’ explanation which was ‘related to the case to be tried.’ [Cit.]” Strozier v. Clark, 206 Ga. App. 85, 87 (5) (424 SE2d 368) (1992). There was no error in the denial of the Batson motion.

2. The second enumeration is that the court erred in “denying Appellant’s Motion for a Directed Verdict as there was a fatal variance between the evidence presented as to the manner in which the offense was committed and the manner specified in the indictment.”

This ground, however, is not mentioned in the motion for directed verdict made at trial and therefore there is nothing for us to review in this regard. OCGA § 17-9-1; see Horton v. State, 194 Ga. App. 797, 798 (1) (392 SE2d 259) (1990).

3. Finally, Ledford complains of the trial court’s instruction to the jury on the elements of armed robbery. Ledford acknowledges that the court charged the language of OCGA § 16-8-41 (a). Since he was indicted for robbery by “use of an offensive weapon, to wit: a pistol,” he contends that the evidence, showing it was a starter pistol incapable of firing live bullets, proved a “replica,” and instructing the jury as to the alternative methods of violating the statute was error.

There was no error. According to the evidence, the pistol had the appearance of an actual handgun and would fire blanks. Pettway v. State, 204 Ga. App. 804 (420 SE2d 619) (1992); Morgan v. State, 191 Ga. App. 226 (2) (381 SE2d 402) (1989).

Judgment affirmed. Birdsong, P. J., and Beasley, J., concur.

       Because she had recently been to the bank and shopping, she recalled that she had one twenty, one ten, one five and four or five one-dollar bills.

       Nonetheless, since Powers v. Ohio, 499 U. S__(111 SC 1364, 113 LE2d 411) (1991), members of the white majority have standing to raise the exclusion of members of a minority from the jury.

       Although Ledford also asserted that one juror was Hispanic, there is no indication of this in the record, except for her surname and the court found that was not determinative of her ethnicity.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A92A1716.
    TAYLOR v. DEPARTMENT OF TRANSPORTATION.
    (429 SE2d 108)
   Blackburn, Judge.

In conjunction with a project involving modification of Moreland Avenue at its intersection with 1-20, the Department of Transportation (DOT) condemned 0.076 acres of land owned by the appellant and others, and deposited $28,680 in the court registry as the just and adequate compensation for that taking. Taylor was dissatisfied with that valuation, and requested a jury trial. Trial in the matter occurred on December 16, 1991, and resulted in a jury verdict for Taylor in the amount of $122,452. In this appeal from the judgment entered on that verdict, Taylor contends that the trial court erred in excluding evidence generally pertaining to the impairment of his right of access to the remaining property.

Situated on Taylor’s property is a fast food restaurant which depends upon convenient access to the property from the public road. The portion of Taylor’s property taken by the DOT is a tapering strip of land alongside the public road and directly in front of the restaurant. The DOT project plans called for replacement of a stop sign with a yield sign at the end of the exit ramp off 1-20, so that vehicles exiting from 1-20 could merge into the current through lane without stopping when the traffic flow permitted it. The land taken by the DOT was to be used to widen that through lane and taper off to facilitate such merging of traffic. It was undisputed that the driveways to Taylor’s property were unchanged, other than being set back a few feet. However, Taylor claimed that because of the merging process of vehicles exiting 1-20 onto Moreland Avenue, access to his property will be substantially interfered with, and at times completely blocked by vehicles backed up in the “merge” lane.

At the trial, following selection of the jury, the DOT made a verbal motion in limine to exclude evidence upon which Taylor relied to prove damages to his remaining property resulting from the interference with his right of access to his property caused by the condemnation and road project. The trial court’s grant of the motion excluded, inter alia, all evidence of circuity of travel, traffic patterns, change in traffic volume or flow, changes in lane configuration, location of the exit rámp and references to replacement of a stop sign with a yield sign at the exit ramp, and damages resulting from the above. Inasmuch as Taylor’s claim was that the road project would diminish the value of his remaining property because of a substantial interference with his right of access to the property, the trial court’s ruling in large part “gutted” his case. Taylor sought a certificate of immediate review, but the trial court declined to grant it, because the jury had already been selected. Proffers of the excluded testimony were made during the trial.

1. The basis for the DOT’s motion in limine was that Taylor’s access to the property had not been restricted in any compensable manner, because the driveways to the property remained open and unobstructed. The right of access to a public road is a property right arising from the ownership of land adjacent to the road, and the owner cannot be deprived of this right without payment of just and adequate compensation. MARTA v. Datry, 235 Ga. 568, 575 (220 SE2d 905) (1975). To be compensable, the interference with the right of access must be special to that property and in some way limit, restrict, or obstruct the access from the property to the public road. If some inconvenience, such as circuity of travel or change in traffic pattern, results from the taking, but the property owner has the same access to the road as before, the damage is no different than that suffered by the general public. MARTA v. Fountain, 256 Ga. 732 (352 SE2d 781) (1987); Dept. of Transp. v. Katz, 169 Ga. App. 310 (2) (312 SE2d 635) (1983).

The use of a public road is subject to the reasonable regulation by the state in the exercise of its police power. MARTA v. Datry, supra. A property owner or business has no right to traffic flow past the property in question, and a change in traffic pattern is not compensable. Dept. of Transp. v. Coley, 184 Ga. App. 206, 208 (1) (c) (360 SE2d 924) (1987). Further, mere circuity of travel, which does not interfere with the ingress and egress to property, provides no cause of action. Dept. of Transp. v. Katz, supra.

However, where the damage resulting from such inconvenience is based upon the impairment of the right of access to the property, that damage is special and may be compensable. Evidence of matters otherwise noncompensable, such as inconvenience and circuity of travel, is admissible to show the impairment of the right of access. Dept. of Transp. v. Whitehead, 253 Ga. 150 (317 SE2d 542) (1984). “It is up to the trier of fact to decide if there has been substantial impairment and if so, the value. Whether a property owner has ‘reasonable access’ to the property under the circumstances and whether the existing access was ‘substantially interfered with’ are questions of fact to be decided by the jury. [Cit.]” Circle K General v. Dept. of Transp., 196 Ga. App. 616, 618 (396 SE2d 522) (1990). The proper measure of consequential damages to the remaining property is the diminution, if any, in the market value of the remainder in its circumstance just prior to the taking compared with its market value in its new circumstance just after the taking. Wright v. MARTA, 248 Ga. 372, 376 (283 SE2d 466) (1981).

In summary, matters such as any change in traffic flow or pattern, the location of the exit ramp and the replacement of a stop sign with a yield sign, the configuration of the lanes on Moreland Avenue, and the expected traffic activity resulting from the use of the strip of property taken provide no basis, in their own right, for compensating Taylor. However, those circumstances are appropriate and admissible for the limited purpose of showing the degree of impairment to the right of access to the property in question. For that reason, the trial court erred in granting the DOT’s motion in limine.

Decided February 26, 1993

Reconsideration denied March 10, 1993

Ellenberg & Associates, Richard D. Ellenberg, for appellant.

Michael J. Bowers, Attorney General, Dwyer & White, J. Matthew Dwyer, Jr., Anne W. Sapp, for appellee.

2. Properties on another street were used as comparables to show the value of the subject property before the taking. However, Taylor was not allowed to adduce testimony that because of a lack of traffic volume, the other properties were not suitable for traffic-oriented businesses and thus were not comparable to the property in question. In Dept. of Transp. v. Petkas, 189 Ga. App. 633 (6) (377 SE2d 166) (1988), this court held that the DOT should have been allowed to present evidence that a high traffic count was not entirely advantageous, because of a greater incidence of traffic accidents, and therefore detracted from a property’s value. If evidence of high traffic volume is admissible to show comparable value, evidence of low traffic volume should likewise be admissible for that purpose.

3. The trial court did not err in instructing the jury that it could not consider any diminution in the value of the remaining property that may result from the DOT’s expanded use of its right-of-way existing before the taking. Simon v. Dept. of Transp., 245 Ga. 478 (265 SE2d 777) (1980); Mason v. Dept. of Transp., 159 Ga. App. 471 (283 SE2d 690) (1981). Also, the trial court adequately informed the jury about consequential damages to the remaining property and the appropriate measure of damages, and no error resulted from the refusal to give the exact jury charge on those matters requested by Taylor. Skipper v. Dept. of Transp., 197 Ga. App. 634 (5) (399 SE2d 538) (1990).

Judgment reversed. McMurray, P. J., and Cooper, J., concur.


author: Beasley, Judge.

text:
    A92A2401.
    JORDAN v. THE STATE.
    (429 SE2d 97)
   Beasley, Judge.

Appellant appeals his convictions of involuntary manslaughter (OCGA § 16-5-3 (a)), sale of cocaine (OCGA § 16-13-30 (d)), possession of a firearm during the commission of a crime (OCGA § 16-11-106), and theft by receiving stolen property (OCGA § 16-8-7).

The evidence showed that appellant was a drug dealer who sold cocaine. Two men wearing ski masks and brandishing an Uzi and a shotgun forced their way into appellant’s home, robbed him, and fled. He followed them into the street, and a gunfight ensued. The person driving the getaway car received a fatal gunshot wound to the head. The State presented evidence that appellant shot at the fleeing intruders first. Appellant testified otherwise.

1. Appellant argues that juror misconduct consisting of extrajudicial research concerning legal definitions was sufficiently prejudicial to mandate a reversal.

After the jurors began their deliberations, they submitted a number of questions to the court, one of which was whether it was permissible to circulate among the jurors definitions copied the night before by a juror from a book entitled, The Law and You. The jury wanted to use these definitions because they were in lay terms. Appellant moved for a mistrial on grounds that the court had specifically instructed the jurors not to consult any outside reading materials or bring them into the jury room.

The court questioned the juror who had brought this material into the jury room outside the presence of the other jurors. She responded that she either did not hear or understand the court’s instruction that she not do this, and she affirmed that she could still listen to the court’s instructions, base her decision on them, and not be influenced in any manner by what she had read in the book. This juror also testified that while no other juror had read the material, one juror had glanced at it. The court questioned this juror, and he responded that he had only read the first paragraph of the first page and that he could follow the court’s instructions as to the law and disregard anything he had read. The court inquired whether any of the remaining jurors had read any of it, and there were no responses. The motion for mistrial was denied, and the court reinstructed the jury on the elements of the offenses and answered the jury’s other questions.

Appellant argues that this case is controlled by Moore v. State, 172 Ga. App. 844 (324 SE2d 760) (1984), which involved a juror’s use of the book You and the Law to guide him and the other jurors. During the jury’s deliberations, the court denied this juror’s request to take the book into the jury room, but it did not appear that defense counsel knew of this until after the trial. The juror who examined the book and the jury foreperson were then examined, and from their testimony it appeared that the juror used what he had read in the book to understand what the trial court had charged as law and that after the court had denied him permission to take the book into the jury room he had tried to interpret the court’s charge to the other jurors by reference to what he had read in the book.

The defendant in Moore was convicted of voluntary manslaughter. He claimed self-defense. The book described voluntary manslaughter as including some situations involving self-defense but using more force than necessary. Under Georgia law, this is involuntary manslaughter. We held that under these facts, the juror’s intentional gathering of extrajudicial law was “so prejudicial as to be inherently lacking in due process,” supra at 847, that it required reversal under Watkins v. State, 237 Ga. 678, 685 (229 SE2d 465) (1976) (involving a juror’s intentional gathering of extrajudicial evidence). Compare Tate v. State, 198 Ga. App. 276 (1) (401 SE2d 549) (1991) (holding that a reversal was not required where a juror read definitions of legal terms in a dictionary, but did not communicate this information to other jurors, and he testified that he could decide the case without being influenced by what he had read).

“There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred. [Cit.]” Lamons v. State, 255 Ga. 511, 512 (340 SE2d 183) (1986) (reversing defendant’s conviction where ex parte contact between a juror and the prosecuting attorney during the course of the trial resulted in the juror’s becoming a confidential informant in another case). In this case, like Tate but unlike Moore and Lamons, the trial court was authorized to find beyond a reasonable doubt that no harm occurred. The jury was not infected. Like Tate but unlike Lamons, the irregularity in this case was not so egregious as to require a reversal in the absence of prejudice to the defendant, and none appears.

2. Appellant contends that the trial court erred in furnishing the jury with written copies of Code sections defining the offenses of voluntary manslaughter, involuntary manslaughter, and reckless conduct, while denying a request by the defense to provide the jury with written definitions of the defenses asserted by appellant. The court denied the defense request because the jury had indicated that it was satisfied with the court’s instructions on those points.

Initially, the jury requested, among other things, to have the terms voluntary and involuntary manslaughter explained in lay terms. The court orally recharged the jury on these offenses and, at the request of the defense, also recharged the jury on appellant’s defenses of self-defense and justification. The jury later submitted the following questions and requests to the court: “Does voluntary manslaughter mean you have intent to cause bodily harm? Please redefine voluntary and involuntary manslaughter. Does involuntary manslaughter include provocation? Define reckless conduct again.” In response, the trial court took the actions referred to in the first paragraph of this division.

“Responding to a jury’s request to restate portions of the charge is generally required of the trial judge, [cit.]. . . .” Appling v. State, 256 Ga. 36, 38 (2) (343 SE2d 684) (1986). “Although it has been the accepted Georgia practice not to allow jurors to take written instructions with them into the jury room, [cit.], the Supreme Court in Anderson v. State, 262 Ga. 26, 27 (3) (413 SE2d 732) (1992), recently held that a trial judge is not prohibited from providing the jury with written instructions. However, that case dealt with giving the jury the entire charge in writing, not a selected portion of it.” Gidden v. State, 205 Ga. App. 245, 248 (2) (422 SE2d 30) (1992). In this case, the court did give the jury in writing only that portion of the charge with respect to which it had requested a recharge. “[I]t is within the court’s discretion to recharge only that which is specifically requested. [Cit.]” Appling v. State, supra. It was not an abuse of discretion to recharge only that which was specifically requested nor, under the circumstances of this case, to do so in writing rather than orally again.

3. Finally, appellant argues that a reversal is mandated because the record of hearings held outside the presence of the jury is devoid of any conclusion by the trial court that appellant’s out-of-court statements were voluntary, which is required to be unmistakably clear. He cites Walraven v. State, 250 Ga. 401, 407 (4a) (297 SE2d 278) (1982).

Defendant made certain statements at two different times. By motions to suppress evidence of the statements, he challenged their admissibility on the grounds that they were not voluntarily given and that he had not been given the Miranda warnings before he made the statements. The court conducted hearings in each instance pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). Such is a requirement of due process, “to insure a reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend.” Id. at 391. As to the first statement, given to the neighbor officer who saw the shooting and came across the street to inquire of appellant what had happened, the court concluded that appellant was not in custody at the time so Miranda warnings were not required, and it ruled the statement admissible. The second statement was given to an officer whose questioning of appellant followed by a few minutes the questioning of an officer who had first advised defendant of his rights. The court concluded that it was not necessary to repeat those rights before obtaining a further statement. It ruled that this statement was also admissible. Defendant objected in both instances.

The court did not make any findings or reach any conclusion with respect to the voluntariness of the statements. It is required that this appear “with unmistakable clarity.” Sims v. Georgia, 385 U. S. 538 (87 SC 639, 17 LE2d 593) (1967). See Cofield v. State, 247 Ga. 98, 109 (4) (274 SE2d 530) (1981); Walraven v. State, supra at 407 (4). Resolving the Miranda issue, when there is one, does not dispense with the mandate that “a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given.” Sims, supra at 543-544. See Payne v. State, 249 Ga. 354, 359 (7) (291 SE2d 226) (1982), where the trial court indicated that its only concern was to assure that defendant had signed a waiver of rights.

Decided February 22, 1993

Reconsideration denied March 10, 1993

H. Clay Collins, Michael E. Bergin, for appellant.

J. Tom Morgan, District Attorney, Thomas S. Clegg, Nancy B. Allstrom, Barbara B. Conroy, Assistant District Attorneys, for appel-

The court’s error in not fulfilling the purpose of the JacksonDenno hearing requires us to remand the case for a proper hearing and a finding as to voluntariness as mandated by Sims. As noted in Payne, supra at 360, this was authorized in Jackson v. Denno, and has been done a number of times in Georgia. It was the procedure utilized also in Hicks v. State, 255 Ga. 503 (340 SE2d 604) (1986).

Case remanded for further proceedings. Birdsong, P. J., and Andrews, J., concur.


text:
    A92A2438.
    JACOBS v. THE STATE.
    (429 SE2d 256)
   Beasley, Judge.

Ricky Jacobs was convicted of rape, aggravated sodomy, and armed robbery, and his motion for new trial was denied.

1. Jacobs contends he was denied due process of law when the victim was permitted to identify him in court despite an impermissibly suggestive pretrial identification.

Three separate identifications of Jacobs were made by the victim. Several days after the crime, she selected his photograph as depicting her attacker, from a spread containing photographs of five other men of similar appearance. This effort was prompted by the victim’s having seen a person in her neighborhood resembling the attacker.

The second identification was made at the preliminary hearing. At the request of Jacobs’ attorney, the victim was brought to the hearing to determine whether she could identify Jacobs in person. Before the hearing, outside the courtroom, a police officer showed her a photocopy of the original photographic lineup, and presented her with her statement indicating which photograph she had identified as that of her attacker. She entered the courtroom and was told to look around and see if she could pick out the attacker. Jacobs was present, along with numerous other men of similar size and appearance. Although she stood approximately eight or nine feet from Jacobs, the victim selected no one. Jacobs was then brought to the bench by himself directly across the counsel table from where the victim had been placed. No other men of similar appearance were present nearby. She identified him as her attacker.

The third identification was the in-court identification at trial.

Jacobs moved in limine to exclude the in-court identification. At a pretrial hearing on the motion immediately before trial, the trial court found that: the photo lineup was properly conducted and was admissible; the second identification was impermissibly suggestive and excluded from offer by the State; an in-court identification would be allowed, based on the victim’s testimony at the hearing that her in-court identification was based on her view of the assailant at the time of the crime, rather than on her previous identification of him from the photographic lineup or the preliminary hearing.

Applying the rule of Neil v. Biggers, 409 U. S. 188, 199 (93 SC 375, 34 LE2d 401) (1972), we find no error. Nothing in the record, either in the procedure used or in the composition of the spread of photographs, suggests that the first identification was impermissibly suggestive.

In contrast, the second identification was clearly impermissibly suggestive, and based on the factors set forth in Neil, gave rise to a substantial likelihood of irreparable misidentification. See Bradley v. State, 148 Ga. App. 722, 723-724 (2) (252 SE2d 648) (1979). However, the trial court ruled it admissible if the defense “opened the door” by bringing up the victim’s initial inability to identify Jacobs at the preliminary hearing. That is exactly what occurred at trial. The defense went even further and elicited testimony regarding the one-on-one identification. Subsequently, on rebuttal, the victim was permitted to explain her initial inability to identify Jacobs, which she attributed to problems she was experiencing with her vision because of a torn contact lens. Since Jacobs’ own trial strategy was responsible for admission, he has forfeited his right to complain. Dobbs v. State, 200 Ga. App. 300, 301 (407 SE2d 782) (1991).

As to the in-court identification, even where a pretrial identification has been found to be tainted, a subsequent in-court identification is admissible if it does not depend upon the prior, tainted identification but has some other, independent basis. Arnold v. State, 198 Ga. App. 449, 450 (1) (402 SE2d 69) (1991). The victim testified that her in-court identification of Jacobs was based on her opportunity to view him at the time of the crime, and thus it was not error to allow it.

2. Jacobs maintains the trial court erred by allowing the introduction into evidence of a xerox copy of the original photographic lineup. At the time of trial, the State could not locate the original photographic lineup, which contained color photographs. A black and white xerox copy of that lineup was in the State’s possession, however, having been used at the preliminary hearing. Jacobs objected to the admission of this exhibit, citing Daniel v. State, 185 Ga. App. 228, 230-231 (2) (363 SE2d 634) (1987), on the ground that loss of the original gave rise to a presumption, which the State had not rebutted, that the original display was impermissibly suggestive.

We find no support for this argument, in Daniel or elsewhere. In Daniel, the appellant argued that such a presumption arose from the absence of one of the original lineup photographs. We held only that, even assuming that the absence of one of the six original pictures raised such a presumption, this fact related only to the weight to be given the photographic lineup and not to its admissibility. Id. at 230 (2).

The same is true here. The exhibit, although a copy of the original photographic lineup, was not subject to a best evidence rule objection because it was primary evidence of the fact to be proved, that the victim was shown a photographic display from which she identified Jacobs’ picture as that of her assailant. Montgomery v. State, 154 Ga. App. 311 (268 SE2d 723) (1980). The trial court found that the copy was of sufficient quality to enable the jury to assess her determination that the spread was not impermissibly suggestive. We have reviewed the exhibit and agree.

3. Jacobs contends the evidence was insufficient to support his conviction. Medical testimony showed that the victim was attacked. The victim described being grabbed at knifepoint, raped and sodomized, and she testified that her assailant snatched two gold chains from her neck and took money from her purse. She testified that she was able to view her attacker’s face when she was attacked and identified Jacobs as the attacker. Jacobs claimed he was visiting relatives at the time, and several relatives supported his alibi, creating a conflict with the victim’s testimony. The credibility of witnesses is an issue for jury determination. Lawrence v. State, 198 Ga. App. 287, 290 (4) (401 SE2d 275) (1991). The jury was properly instructed and chose to believe the victim.

Appellate courts consider only the sufficiency, and not the weight of the evidence. Cox v. State, 197 Ga. App. 240, 241-242 (5) (398 SE2d 262) (1990). The evidence was sufficient to authorize the jury to convict Jacobs of the charged crimes under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. Jacobs asserts the prosecutor improperly placed his character in evidence in closing argument, when he twice referred to testimony previously given by Jacobs’ aunt indicating that Jacobs came to stay with the family because “he was ... on the run for something else prior to his case.” Because this defense witness had blurted out the unresponsive statement, the court had instructed the prosecutor at a bench conference, at the request of defense counsel, not to cross-examine the witness with regard to it. When the prosecutor referred to the statement in closing argument, Jacobs did not object, thus failing to preserve the matter for review. Barnwell v. State, 197 Ga. App. 116, 117-118 (4) (397 SE2d 717) (1990).

Decided February 22, 1993

Reconsideration denied March 10, 1993

Jeanne M. Canavan, for appellant.

Lewis R. Slaton, District Attorney, Barry I. Mortge, Assistant District Attorney, for appellee.

Judgment affirmed. Birdsong, P. J., and Andrews, J., concur.


author: Carley, Presiding Judge.

text:
    A92A1714.
    ANDERSON v. THE STATE.
    (429 SE2d 128)
   Carley, Presiding Judge.

By way of a single indictment, appellant was individually charged with three counts of selling cocaine, a co-indictee was individually charged with two counts of selling cocaine and they were both jointly charged with one count of selling cocaine. Appellant and the co-indictee were jointly tried and the jury returned guilty verdicts on all offenses. The convictions of the co-indictee were affirmed on appeal. English v. State, 205 Ga. App. 599 (422 SE2d 924) (1992). In the instant appeal, appellant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. The denial of the motion to sever appellant’s trial from that of his co-indictee is enumerated as error.

It was not error to deny severance as to the count for which appellant and the co-indictee were jointly charged with selling cocaine. See generally Story v. State, 194 Ga. App. 187 (1) (390 SE2d 96) (1990). Likewise, it was not error to deny severance as to the counts wherein appellant and the co-indictee were individually charged with selling cocaine. “The facts show a course of criminal conduct, each involving the same place of occurrence, a very similar series of acts involved in each sale, and involving a group of undercover agents working closely together to ferret out drug activities. Such evidence showed a common scheme or plan and clearly warranted the common trial of each of the occurrences. [Cit.] Moreover, . . . there was no showing that a common trial would work any prejudice to the rights of either defendant. [Cit.] We find no abuse of discretion in the denial of the motions to sever parties, [cit.]. . . .” Camp v. State, 162 Ga. App. 857, 858 (3) (293 SE2d 389) (1982). See also Ledbetter v. State, 202 Ga. App. 524, 525 (2) (414 SE2d 737) (1992); Plemons v. State, 155 Ga. App. 447, 448 (2A) (270 SE2d 836) (1980). Compare Hayes v. State, 182 Ga. App. 26 (1) (354 SE2d 655) (1987) (error in failure to sever entirely unrelated and totally dissimilar crimes).

Decided March 10, 1993.

Sinnreich & Francisco, John R. Francisco, for appellant.

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Assistant District Attorney, for appellee.

2. Over a hearsay objection, the supervising officer was permitted to testify as to what he had been told by the investigating undercover officer. Since the investigating undercover officer was herself a witness at appellant’s trial, it was not error to overrule the hearsay objection. Miller v. State, 260 Ga. 191, 193 (4) (391 SE2d 642) (1990). Compare Miller v. State, supra at 192 (2); Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982).

3. The investigating undercover officer testified to her duties regarding contemporaneous documentation of the drug transactions in which she participated. Over objection, she was then allowed to testify, by reference to one of her contemporaneous records, as to the specifics of a drug transaction in which she and appellant had participated. The trial court did not err in allowing the witness to testify by reference to her records. See Bridges v. Mut. Benefit Health &c. Assn., 49 Ga. App. 552, 553 (2) (176 SE 543) (1934). “The witness in this case in effect swore positively from [her contemporaneous records], and the trial court properly allowed the testimony. [Cit.]” Cooper v. State, 174 Ga. App. 464, 466 (3) (330 SE2d 402) (1985). See also Mincey v. State, 257 Ga. 500, 504 (6) (360 SE2d 578) (1987).

4. The trial court’s failure to sustain an objection to certain evidence as having “no relevancy to this case” presents nothing for review. Sultenfuss v. State, 185 Ga. App. 47, 49 (4) (363 SE2d 337) (1987).

5. The remaining enumeration of error relates to an evidentiary ruling which has already been decided adversely to appellant’s contentions in the appeal of his co-indictee. English v. State, supra at 599 (1).

Judgments affirmed. Pope, C. J., and Johnson, J., concur.


author: Johnson, Judge.

text:
    A92A2008.
    TEASLEY v. THE STATE.
    (429 SE2d 127)
   Johnson, Judge.

Roy Lee Teasley appeals from his conviction of child molestation and the denial of his motion for a new trial.

1. Teasley contends that there was insufficient evidence to support his conviction. This contention is without merit. The child victim testified that a man who she referred to as “Salt Dog” and later identified in court as Teasley, touched her on her breasts and in her genital area. At the time the incident occurred, the victim was seven years old. Additional evidence was presented by Teresa Maxwell, a behavioral therapist and teacher in a program in which the victim was enrolled. Maxwell observed the child, noting “severe behavior problems.” She initiated a conversation with the child in an attempt to find out what was causing the behavior. After counseling, Maxwell suspected that the child was being sexually abused, and initiated further investigation. Maxwell recounted what the victim told her regarding the sexual abuse inflicted upon her by Teasley. After a review of the entire record, we find that there was sufficient evidence such that a rational trier of fact could have found Teasley guilty of child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Teasley further contends that the trial court erred in refusing to give his requested charge on sexual battery as a lesser included offense of child molestation. We disagree.

“OCGA § 16-1-6 together with OCGA § 16-1-7 contain the standards for determining if one offense is included in another as a matter of fact or as a matter of law. They are alternative and not conjunctive. Paragraph (1) of § 16-1-6 sets out the rules for determining included crimes as a matter of fact and paragraph (2) treats those included as a matter of law.” (Citations and punctuation omitted.) Shuler v. State, 195 Ga. App. 849, 850 (395 SE2d 26) (1990). As a matter of law, a crime is included in another if it is shown that “[i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” OCGA § 16-1-6 (2). Sexual battery does not differ from child molestation in the manner set forth in OCGA § 16-1-6 (2). The crimes of child molestation and sexual battery have different elements and protect different classifications of victims. See generally Whiteley v. State, 188 Ga. App. 129 (5) (372 SE2d 296) (1988); see also Barnes v. State, 244 Ga. 302 (1) (260 SE2d 40) (1979). Accordingly, the offense of sexual battery is not included in the offense of child molestation as a matter of law.

Likewise, sexual battery is not included in child molestation as a matter of fact. A crime is included within another charged crime as a matter of fact if “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged.” OCGA § 16-1-6 (1). “[W]here the defendant is charged by a narrowly drawn indictment with a specific crime it is not within the power of the judge or the jury to interpret the facts as presented at trial to support an alternative, separate offense.” (Citations and punctuation omitted.) Shuler, supra at 850. The indictment in this case provides: “between January 1, 1988 and February 25, 1988 [Teasley] . . . did . . . unlawfully commit an indecent act, to wit: accused placed his hand on the breast of ... a child under 14 years of age, with intent to satisfy the sexual desires of said accused.” The indictment in this case is narrowly tailored to the crime of child molestation. See OCGA § 16-6-4 (a). The indictment taken together with the evidence indicates that sexual battery was not a lesser included offense of child molestation in this case as a matter of fact. We find no error in the trial court’s refusal to charge the jury on the law of sexual battery for such a charge was not authorized by the law or the evidence.

Decided March 10, 1993.

Robert W. Lavender, Michelle C. Feinberg, for appellant.

Lindsay A. Tise, Jr., District Attorney, John H. Bailey, Jr., Assistant District Attorney, for appellee.

Judgment affirmed. Pope, C. J., and Carley, P. J., concur.


author: Cooper, Judge.

text:
    A92A2025.
    DANIEL v. THE STATE.
    (429 SE2d 130)
   Cooper, Judge.

Appellant was convicted by a jury of robbery by sudden snatching and attempted robbery by sudden snatching and appeals from the judgment entered on his convictions and the denial of his motion for new trial.

Appellant’s convictions were based on two incidents which occurred one afternoon while he was riding around in his sports car with co-defendant Arthur Ogletree. Scott Edgar, the first victim, testified that at approximately 3:30 p.m. he was at a gas station when Ogletree got out of appellant’s car and approached him to ask for a ride to a nearby medical center. After Edgar agreed, Ogletree went back to appellant’s car, said something to appellant, and then returned to Edgar’s car for his ride. Along the way, Ogletree told Edgar he would give him some money for gas if Edgar had any change. Edgar pulled out his wallet to check and put it between his legs. When they reached the medical center, Ogletree grabbed the wallet and ran off with it. Edgar could not say where Ogletree went from there. The second victim, Alicia Norton and a companion, Robin Grier, testified that at approximately 4:30 the same afternoon they were at a gas station and saw appellant and Ogletree in appellant’s sports car. Ogle-tree told Norton and Grier that he and his friend were having car trouble and asked them to follow appellant’s car to an apartment nearby to make sure nothing happened. Norton agreed, and when they reached the apartment, Ogletree got out of appellant’s car, went up to Norton’s car, and told her he wanted to give her some money if she had any change. When she said she did not want any money, Ogletree tried to get in her car and grab some money she had on the console. He did not succeed, she screamed, and appellant yelled at Ogletree to get back in the car. Ogletree did so, and they departed. Ogletree, having pled guilty, also testified. He said appellant knew he planned to steal some money, agreed to follow Edgar’s car to the medical center and pick him up, and took some of the stolen money.

1. In his first enumeration of error, appellant contends the evidence was insufficient to support his conviction because the only evidence tying him to these crimes was the uncorroborated testimony of his alleged accomplice, Ogletree. “While a defendant may not be convicted on the uncorroborated testimony of an accomplice, OCGA § 24-4-8, 4 “(s)light evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict.” ’ [Cits.]” Hardin v. State, 252 Ga. 99, 100 (4) (311 SE2d 462) (1984). Although 44 4 [t]he corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty, [cit.],’ ” Brown v. State, 199 Ga. App. 18, 21 (4) (404 SE2d 154) (1991), 44[t]he necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime. [Cit.]” Drake v. State, 241 Ga. 583, 586 (3) (247 SE2d 57) (1978). In this case, the independent testimony of the victims establishes that less than an hour after Ogletree left appellant’s car, secured a ride with his first victim, and robbed him, Ogletree was back in appellant’s car in a similar setting giving a similar story to a second victim. Moreover, when the second victim resisted, appellant yelled at Ogletree to get back in the car, and when Ogletree got back in the car, appellant drove away. This independent evidence of appellant’s conduct on the afternoon in question may give rise to an inference that he participated in Ogletree’s crimes, and thus is sufficient corroboration of Ogletree’s testimony. Considering all of the evidence presented in a light most favorable to the verdict, it was sufficient to allow reasonable jurors to find appellant guilty on both counts beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided March 10, 1993.

Albert B. Wallace, Stephen B. Wallace II, for appellant.

W. Fletcher Sams, District Attorney, William T. McBroom III, Tarey B. Schell, Assistant District Attorneys, for appellee.

2. In his second enumeration of error, appellant contends the trial court should have granted his motion for a new trial because it erred in its preliminary charge to the jury regarding the meaning of “reasonable doubt.” However, in making this argument appellant focuses on several words in a lengthy and otherwise correct explanation of what constitutes reasonable doubt. “ ‘It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. (Cits.)’ [Cit.]” Marshall v. State, 197 Ga. App. 762, 763 (2) (399 SE2d 555) (1990). Although the challenged clause, suggesting that a reasonable doubt was “a doubt of the law,” was a misstatement, we conclude the charge as a whole accurately conveyed the meaning of reasonable doubt. Thus, the trial court did not err in denying appellant’s motion for new trial on this ground.

3. Appellant also points to language in the jury charge which he asserts may have led jurors to believe that if they found him guilty on one count, they had to find him guilty on both. Like appellant’s second enumeration of error, however, this assertion focuses on language in isolation. The court emphasized to the jurors that two different counts were at issue and instructed them to return two separate verdict forms, which they did. Accordingly, appellant’s third enumeration of error is also without merit. See Marshall, supra.

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


text:
    A92A2291, A92A2292.
    In the Interest of M. M., a child (two cases).
    (429 SE2d 132)
   Cooper, Judge.

In separate cases, the mother and father of M. M. appeal from a juvenile court order terminating their parental rights. Both appellants enumerate as error the sufficiency of the evidence and the admission of a report by the court-appointed special advocate. In addition, the father contends that a report by the judicial citizen review panel was erroneously admitted.

M. M. was born on July 19, 1988 to appellants, who were not married. The Department of Family & Children Services (“DFACS”) became involved in the case on April 6, 1989, when appellant mother began serving a prison sentence for forgery and financial transaction card fraud. M. M. was placed in foster care because appellant father was already incarcerated in the state prison system for the offenses of armed robbery, robbery and giving a false statement.

Upon appellant mother’s release from prison on October 26, 1990, she met with a caseworker from DFACS and entered into a reunification plan which required her to maintain stable employment, comply with the conditions of her probation and parole, maintain suitable housing for herself and M. M., .arrange for adequate day care and have regular visits with M. M. Appellant mother complied with all of the requirements of her reunification plan except that her apartment was too small to accommodate M. M. and she failed to visit M. M. on a regular basis. In December 1991, DFACS, appellee herein, filed a petition to terminate the parental rights of both parents.

On March 6, 1992, a hearing was held on DFACS’s petition. The caseworker assigned to M. M.’s case testified regarding appellant mother’s visitation with M. M. from the time of her release from prison through the date of the hearing. Appellant mother’s first visit with M. M. following her release from prison was on November 16, 1990. Subsequent visits were scheduled for November 27 and 28, but appellant mother cancelled because she had to work. Appellant mother visited with M. M. four times in December, and in January 1991, she visited M. M. four out of the five scheduled meetings. In February, appellant mother cancelled two of the four scheduled visits, once because she had to work and once because she was sick. In March, appellant mother cancelled two of the six scheduled visits, and in April, appellant mother had three overnight visits with M. M. but cancelled one visit due to illness. Appellant mother visited with M. M. twice in May but cancelled three visits. In June, appellant mother cancelled two of the four scheduled visits due to work, and in July, appellant mother visited M. M. only twice and then requested that the overnight visits cease. Appellant mother visited M. M. once in August, and then several months elapsed before appellant mother made any attempt to visit M. M. Appellant mother saw the child once in November prior to a panel review session, and no visits were scheduled in December 1991. During 1992, appellant visited with M. M. only once.

The DFACS caseworker testified that upon appellant mother’s release from prison and commencement of visitation with M. M., there was some bonding between appellant mother and M. M. but that in the two visits since July 1991, there was a noticeable lack of physical contact between M. M. and appellant mother. The caseworker also stated that it was not emotionally good for M. M. to have appellant mother drop in and out of her life. Appellant mother testified that she had to cancel several visits with M. M. due to her work schedule. She also stated that she discontinued overnight visits with M. M. because M. M.’s foster parents had reported to DFACS that M. M. made allegations of child molestation which allegedly occurred while M. M. was in appellant’s custody. Appellant mother also stated that although the allegations were untrue, she did not visit with M. M. because she did not want to risk going back to prison.

Appellant father was still serving his sentence at the time of the hearing on appellee’s petition, and his earliest possible release date was January 22, 1993. The DFACS caseworker testified that appellant father had a few visits with M. M., but DFACS discontinued visitation due to appellant father’s failure to legitimate M. M. The caseworker also testified that appellant father made several requests to visit with M. M. and that there were several visits between M. M. and appellant father’s extended family. Appellant father acknowledged that he was required to legitimate M. M. to obtain visitation privileges but stated that he was unable to do so because he did not have any money.

1. “OCGA § 15-11-81 (a) provides a two-step procedure to be followed in considering the termination of parental rights. First, the court shall determine whether there is present clear and convincing evidence of such parental misconduct or inability as provided by OCGA § 15-11-81 (b). Secondly, ‘(i)f there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child, . . .’ [cit.].” In the Interest of A. T., 187 Ga. App. 299, 301 (2) (370 SE2d 48) (1988). “Parental misconduct is determined by finding: 1) the child is deprived; 2) lack of proper parental care or control is the cause of the deprivation; 3) such deprivation is likely to continue or will not be remedied; 4) continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. [Cit.] Among the factors which may be considered with regard to a child lacking proper parental care or control are: medically verifiable deficiency of the parent’s mental or emotional health of such duration or nature as to render the parent unable to provide adequately for the child’s needs; conviction of a felony and imprisonment which has a demonstrable negative eifect on the quality of the parent-child relation; physical, mental or emotional neglect of the child. [Cit.] Another consideration is whether the parent without justifiable cause failed significantly for a period of one year or longer to comply with a court ordered plan designated to reunite the child with the parent. [Cit.]” In the Interest of B. J. H., 194 Ga. App. 282 (1) (390 SE2d 427) (1990).

The trial court made detailed and comprehensive findings regarding the above criteria as to both parents. The court found that M. M. was in a state of deprivation due to a lack of parental care and control caused by the actions of both parents; that neither parent cared to supervise M. M. or provide parental care and control for her; that the parents’ lack of ability to care for M. M. began with their commission of multiple felonies prior to M. M.’s birth; that since July 1991, the mother has made no real effort to visit M. M.; that the most persuasive evidence of the lack of parental care and control is the conduct of the mother in having no visitation for such a long period of time; that the deprivation caused by the mother’s failure to provide proper parental control is likely to continue into the future and is not likely to be remedied; that the father has failed to comply with the only requirement placed on him — to legitimate M. M. — so that he could visit the child; that the father has failed to communicate with the child since his incarceration; that the deprivation due to the father’s actions will likely continue through January 23, 1993; that there is no evidence that the causes of M. M.’s deprivation by the father would be remedied at that time even if the father were released from prison; that the lack of parental care and supervision by the parents is likely to cause emotional harm to M. M.; that the lack of parental care and control in addition to the period of time that the deprivation has lasted has already caused some harm to M. M.; that deferring a decision in the case would not be in the best interest of M. M. due to the uncertainty surrounding the parental situation and the lack of action on the part of both parents to reunite with the child; and that the evidence authorized a finding that termination of parental rights was in the best interest of the child.

“ ‘(T)he appropriate standard of appellate review in a case where a parent’s rights to his child have been severed is “whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” ’ [Cits.]” In the Interest of A. O. A., 172 Ga. App. 364, 365-366 (2) (323 SE2d 208) (1984). “The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review ... is not met.” In re B. D. C., 256 Ga. 511, 513 (350 SE2d 444) (1986). Our review of the record reflects that there is sufficient clear and convincing evidence to support both of the findings of the juvenile court that parental inability would likely not be remedied and that termination would be in the best interest of the child. Consequently, we find no abuse of the juvenile court’s discretion in granting appellee’s petition. See In the Interest of G. K. J., 187 Ga. App. 443 (2) (370 SE2d 490) (1988).

Decided March 10, 1993.

Merry & Associates, Rebecca S. Merry, Anne H. Watson, Summer & Summer, Chandelle T. Summer, for appellants.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Staff Attorney, Charles W. Smith, Jr., for appellee.

2. Both appellants enumerate as error the admission of a report of the court-appointed special advocate (“CASA”) on the grounds that they had no opportunity to cross-examine the special advocate as to the factual assertions contained in the report. The trial judge indicated in his order that he considered the CASA report along with all of the other evidence. However, all of the findings articulated by the trial judge were amply supported by the testimony of the witnesses at the hearing. Furthermore, the findings made by the CASA in the report were substantially the same as the evidence presented during the hearing. Therefore, even if the trial judge erred in admitting the report, we find no reversible error. In the Interest of M. A. C., 244 Ga. 645 (4) (261 SE2d 590) (1979).

3. Similarly, we find no merit to appellant father’s contention that the juvenile court judge erred in admitting a report by the judicial citizen review panel. The judge’s findings were supported by the evidence exclusive of the review panel’s report, and any error in admitting the report is not grounds for reversal. In the Interest of M. A. C., supra.

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


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A2298.
    CAIN v. MOORE et al.
    (429 SE2d 135)
   Birdsong, Presiding Judge.

This is a direct appeal from the order of the superior court denying appellant/plaintiffs motion, captioned “Plaintiffs Motion to Vacate Order and Judgment and to Reinstate Case.”

Appellant filed a medical malpractice action on February 22, 1991. Defendant David O. Moore, M.D. filed a motion for summary judgment on May 15, 1991. Defendant Board of Regents filed a motion to dismiss for want of jurisdiction over its person on May 23, 1991. On June 28,1991, the superior court granted defendant Moore’s motion for summary judgment as appellant/plaintiff failed to file a response thereto within 30 days as required by USCR 6.2. On the same date, the superior court granted defendant Board of Regents’ motion to dismiss. The record does not establish that a timely appeal was ever taken from the order granting summary judgment to defendant Moore. See generally OCGA §§ 5-6-34 (a); 5-6-38; 9-11-56 (h).

On February 4, 1992, appellant/plaintiff filed a motion with the superior court to vacate the order and judgment, entered on June 28, 1991, granting defendant Moore’s motion for summary judgment. Appellant asserts this motion was brought pursuant to the general provisions as to form of motions promulgated in OCGA § 9-11-7 (b). In the request for relief contained in the motion, appellant asks that the court allow the motion for summary judgment to be considered on its merits, vacate and set aside its order and judgment, and treat the motion as an emergency motion under USCR 6.7.

On February 26, 1992, the trial court entered an order denying appellant’s motion to vacate the order and judgment and to reinstate the case; as there remained one defendant in this lawsuit, the trial court entered the requisite express determination and express direction required by OCGA § 9-11-54 (b) to enter a final judgment as to one or more but fewer than all the parties. Held:

1. Pretermitting whether the trial court erred in denying appellant’s motion is whether this court has jurisdiction to consider this appeal. It is the duty of a reviewing court to raise the question of its jurisdiction in all cases in which there may be doubt as to the existence thereof. Atlantic-Canadian Corp. v. Hammer &c. Assoc., 167 Ga. App. 257 (1) (306 SE2d 22).

2. There is no magic in nomenclature and we judge pleadings, motions, and orders not by their name but by their function and substance, being always mindful to construe such documents in a manner compatible with the best interests of justice. Howell Mill/Collier Assoc. v. Pennypacker’s, 194 Ga. App. 169 (1) (390 SE2d 257); Gully v. Glover, 190 Ga. App. 238 (1) (378 SE2d 411). Notwithstanding appellant’s attempt to characterize its motion as one to vacate and reinstate the case, the substance of this motion is to request a setting aside of the grant of motion of summary judgment to defendant Moore. In fact, the motion expressly requests that the superior court “set aside” its order and “judgment.” Thus, the order of the trial court in substance was the denial of a motion to set aside a summary judgment. The function and substance of appellant’s motion was to obtain a setting aside of the summary judgment on equitable grounds. It is now prohibited to use a complaint in equity to set aside a judgment. OCGA § 9-11-60 (e). “Appeals from the denial of motions to set aside judgment . . . must be brought under the discretionary appeals procedures. OCGA § 5-6-35 (a) (8); State Farm Mut. &c. Co. v. Yancey, 258 Ga. 802 (375 SE2d 39). Further, although no longer authorized for this purpose, OCGA § 5-6-35 (a) (8), as amended, specifically includes ‘(a)ppeals from orders . . . denying relief upon a complaint in equity to set aside a judgment’ as one of the appeals which must be brought under the discretionary appeals procedures. Under these circumstances there is no doubt that the legislature required the discretionary appeals procedures for appeals from orders or judgments denying relief in cases seeking to set aside judgments.” Manley v. Jones, 203 Ga. App. 173, 174 (416 SE2d 744). Because appellant brought this appeal pursuant to a direct appeal, it must be dismissed. Id.

Assuming arguendo that the motion to set aside could be construed as a motion to set aside based on some form of accident unmixed with the negligence or fault of the movant (OCGA § 9-11-60 (d) (3)), we also would lack jurisdiction over this appeal. OCGA § 5-6-35 (a) (8). Nor can OCGA § 9-11-7 (b) be construed to expand the jurisdiction of this court over orders of lower courts granting or denying motions whose substance and function are to obtain the set-aside of a judgment.

Appeal dismissed. Andrews, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in that part of the opinion which concludes that this direct appeal must be dismissed because it is from an order denying a motion to set aside a judgment, which requires an application under OCGA § 5-6-35 (a) (8).

I do not agree that the motion was based on equitable grounds. Plaintiff complained that the court in effect granted a default summary judgment, basing it on the lack of a response by plaintiff, which the court interpreted as meaning that the motion was unopposed. USCR 6.5 sets out what a response to a summary judgment motion shall include, and USCR 6.2 provides that a party opposing any motion shall respond within 30 days. But OCGA § 9-11-56 (c) only allows summary judgment if the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” There is no such thing as a default summary judgment. Hughes v. Montgomery Contracting Co., 189 Ga. App. 814, 815 (377 SE2d 723) (1989); McGivern v. First Capital &c. Prop., Ltd., 188 Ga. App. 716, 717 (1) (373 SE2d 817) (1988). This is a legal, not an equitable, ground.

The trial court cited Henderson v. Caughran, 182 Ga. App. 657 (356 SE2d 721) (1987), as authority, but in that case, where defendant’s response to plaintiff’s motion for summary judgment was beyond the 30-day limit so was correctly not considered, the record supported summary judgment for plaintiff.

Decided March 10, 1993.

Joyner & Joyner, Gordon L. Joyner, for appellant.

Michael J. Bowers, Attorney General, Alfred L. Evans, Jr., Mark H. Cohen, Senior Assistant Attorneys General, Long, Weinberg, Ansley & Wheeler, Joseph W. Watkins, M. B. Satcher III, for appellees.

It was plaintiff’s primary ground for the motion in this case that, as a matter of law, the record did not support summary judgment even without a response to defendant’s motion. OCGA § 9-11-60 (d) allows motions to set aside when there is a nonamendable defect on the face of the record, which is what plaintiff’s contention was. This, too, is a legal rather than an equitable ground. Plaintiff argued below that there were two conflicting affidavits, which created a genuine issue of material fact: the expert’s affidavit filed with the complaint pursuant to OCGA § 9-11-9.1 and defendant Dr. Moore’s affidavit, which was filed in support of his motion for summary judgment.

Plaintiff explained in his motion that the reason he had not filed a response, although he contended he did not need one to defeat summary judgment, was because of a family crisis, and that this was also the reason for the time period before filing the motion in the still-pending case. But this did not create an equitable ground. Actually, OCGA § 9-11-60 (f) allows such motions within three years from the entry of judgment; plaintiff’s motion was filed within eight months.

Nevertheless, we cannot rule on the legal merits of appellant’s motion because he has followed the wrong route to this court.


text:
    A92A1748.
    THE STATE v. BALL.
    (429 SE2d 258)
   Beasley, Judge.

Appellee was indicted for possession of cocaine with intent to distribute, OCGA § 16-13-30 (b). The State brings this appeal pursuant to OCGA § 5-7-1 (4), from an order sustaining appellee’s motion to suppress evidence illegally seized during the stop of his automobile. The issue before this court is the constitutionality, under the Fourth Amendment, of the investigatory stop of the vehicle following information received from an anonymous tipster. We conclude that the Fourth Amendment was not violated. Appellee raised the state constitutional provision below but did not pursue it as an independent ground, relying instead on state cases which applied the federal standard.

The facts are as follows: An Albany police dispatcher received an anonymous telephone call placed to 911 at about 10:30 p.m., stating that a black male driving a 1974 Camaro automobile with a specified license tag number was selling drugs from his car at the Suwannee Swifty convenience store on North Madison Street. The dispatcher transmitted the message to Albany police Lieutenant Stalvey; he in turn relayed the information to Officer Green of the Albany-Dougherty drug unit, who was out in the field along with Officer Perkins. Green and Perkins immediately proceeded in their unmarked police car to the specified location in an effort to find the identified vehicle.

As Officers Green and Perkins were approaching the area, they saw the described Camaro turn off the 600 block of Residence Street onto North Davis Street, and followed it for about a block and a half. Approximately one block from the convenience store, Green and Perkins pulled up alongside the Camaro to observe the occupants. Officer Perkins was familiar with defendant and the vehicle. He testified that approximately one month earlier, defendant had been stopped by police in connection with a drug investigation in the 600 block of Residence Street and he (Perkins) was called to the scene to talk to him. Defendant was driving the same Camaro on that occasion. By the time Perkins arrived on the scene, defendant and the second occupant of the Camaro had exited the car and were standing outside. Defendant told Perkins that the car belonged to his sister. Although a quantity of cocaine was found on that occasion, Ball was not arrested because no contraband was found on his person. Since then, Perkins had seen him in that vehicle “probably for a month prior to [the present stop].” When he observed the car again at this time, he “recognized [it] immediately,” even before he saw the driver.

Officer Green, who had no prior personal knowledge of defendant, testified: “once we pulled up on the side of the subject he looked over at us and Investigator Perkins said ‘That is Kenny Ball’ and Kenny pulled the car on over. . . .”

After observing the occupants of the vehicle, the officers requested that the car pull over. There were seven people in the Camaro, including defendant driver, Michael Holliday in the front passenger seat, and five female passengers. Defendant complied with the officers’ request, parking his vehicle under a street light. Officer Green parked the police car in front of the Camaro.

As Officer Green was exiting the police car, he observed defendant take a white napkin out of his pants and pass it to Holliday in the front passenger seat. Holliday then attempted to throw the object out of the car window, but it bounced back off the window. The passengers were told to exit the car and Officer Green retrieved what had fallen on the floor of the vehicle. Along with the napkin he found ten pieces of what appeared to be rock cocaine. When a field test proved positive for cocaine, defendant and Holliday were arrested and taken into custody. Defendant was in possession of $474 in cash.

The issue before us is the validity of the initial stop. If a brief investigatory stop was authorized, the seizure was proper because the officers were in a place they were authorized to be when they observed evidence that a crime, possession of cocaine, was being committed in their presence. See OCGA § 17-4-20 (a); State v. Almand, 196 Ga. App. 40 (395 SE2d 609) (1990); Marsh v. State, 182 Ga. App. 892 (357 SE2d 325) (1987); Watson v. State, 190 Ga. App. 696 (379 SE2d 817) (1989). Holliday’s thwarted attempt to abandon the evidence placed it in plain view of the officer. “ ‘Neither abandoned property, nor items in plain view of law enforcement officers who (as in the instant case) are where they have a right to be, can be the subject of a motion to suppress when the abandonment of the evidence and the simultaneous placing of it in plain view occurs during the course of a legal stop. (Cits.)’ [Cit.]” Wilder v. State, 192 Ga. App. 891, 892 (386 SE2d 685) (1989).

In Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990), the Supreme Court considered whether certain information supplied by an anonymous caller, as corroborated by independent police work, exhibited sufficient indicia of reliability to justify an investigatory stop of a defendant’s vehicle based on reasonable suspicion. The caller alerted police that Vanessa White would be leaving a specified apartment at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey’s Motel, and that she would be in possession of about an ounce of cocaine inside a brown attache case. Law enforcement officers proceeded to the specified location where they observed defendant leave an apartment building, carrying nothing in her hands, and enter the described station wagon parked in front of the building. They followed the car as it drove the most direct route to Dobey’s Motel but they stopped the vehicle just short of the motel. Defendant was told she was suspected of carrying cocaine and asked to step to the rear of her car. She then consented to the officers’ request to look for cocaine and provided the combination to a locked brown attache case found in the car. She was arrested when the officers found marijuana inside.

The Court acknowledged that, “a tip such as this one, standing alone, would not ‘ “warrant a man of reasonable caution in the belief’ that (a stop) was appropriate.’ ” Id. 496 U. S. at 329, citing Terry v. Ohio, 392 U. S. 1, 22 (88 SC 1868, 20 LE2d 889) (1968). However, the Court found more than the tip itself. At the time of the stop, significant aspects of the caller’s predictions concerning defendant’s destination were verified, thus providing sufficient corroboration to furnish reasonable suspicion that defendant was engaged in criminal activity. The investigative stop therefore did not violate the Fourth Amendment. White, supra 496 U. S. at 331.

This court has since had occasion to apply the White analysis in several cases. Johnson v. State, 197 Ga. App. 538 (398 SE2d 826) (1990), concluded that an anonymous tip “that two black men in a black truck were selling drugs on Lewis Street,” id. at 539, was too general and completely lacking in detail or reliability sufficient to authorize an investigatory stop under White. No suspicious activity was observed by police; the sum total of their knowledge was the contents of the tip. The court concluded that, “[although the tip certainly warranted police investigation, further observation and corroboration was required before a forcible stop was authorized.” Id. at 539.

State v. McFarland, 201 Ga. App. 495 (411 SE2d 314) (1991), upheld an investigatory stop where a service station attendant telephoned police complaining of an intoxicated customer and describing the person’s clothing and car. Officers in the immediate vicinity observed defendant drive out of the service station and followed him. They observed no law being violated, but after following the car into and out of a deserted shopping center, they stopped defendant and requested credentials. He volunteered that he was an habitual violator without a driver’s license and proceeded to fail a field sobriety test. Unlike Johnson, “here there was no anonymous ‘tip,’ but rather a complaint from an identified individual, . . . who had observed [defendant’s] behavior and reported it, giving a detailed description of [defendant] and his car.” McFarland, supra at 496. A limited but immediate inquiry was authorized by the circumstances.

A contrary result was reached in Swanson v. State, 201 Ga. App. 896, 897 (412 SE2d 630) (1991), where an anonymous caller reported to police that a “dark-skinned black man wearing a ‘white Kangol hat,’ a sweater, and jeans was selling drugs at 987 Sells Avenue.” The officer arrived on the scene, known to him as a high drug trafficking area, and observed defendant standing at that address. Defendant matched the given description, including wearing a white cap with the name “Kangol” on it. There were two or three other men nearby but the officer observed no drug activity. He approached defendant to “interview” him, but first conducted a pat-down search for weapons and found seven bags of cocaine in defendant’s hat. Applying White, the stop was held to be invalid because it was not based on reasonable suspicion. “[T]he anonymous tip contained no detailed information demonstrating the caller’s ability to predict [defendant’s] future behavior, and thus contained no information from which the police could have reason to believe the tipster was not only honest but also well informed enough to justify the stop.” Swanson, supra at 898.

Likewise, in Moreland v. State, 204 Ga. App. 218 (418 SE2d 788) (1992), a stop was based on an anonymous tip “that two black men in a dark red ‘raggedy’ Camaro were selling drugs in the Eastgate-Fairmount area of Newnan.” Id. No other details were provided by the caller. Officers located a red Camaro in the area and stopped it “[b]ased solely on the anonymous tip. ...” Id. They observed no suspicious activity by the persons in the car. One of the officers testified that as he approached the car, after the stop had been effected, “at that time he recognized both men and knew they had prior records for drug offenses.” Id. at 219. Finding the facts indistinguishable from Johnson, supra, the initial stop was held to be invalid not based on reasonable suspicion.

State v. Smalls, 203 Ga. App. 283 (416 SE2d 531) (1992) began with an anonymous call from someone “ ‘inside the Frazier Homes Area, around 524 Frazier Homes, to be exact, in reference to a group of black males standing between the two buildings, selling crack cocaine.’ ” Id. at 285. No names were specified. Plainclothes officers entered Frazier Homes and observed six or eight subjects loitering around the two buildings. Several ran away pursued by police but were not caught. Defendant and another suspect walked away as the officers approached, but they then agreed to talk to the officers. Defendant was asked his name and to remove his hands from his pockets, whereupon a pat-down search “[f]or safety” revealed a large sum of money. The officer received defendant’s permission to remove the money which contained cocaine residue. The court held that the circumstances, i.e., the anonymous tip coupled with visual inspection resulting in defendant’s attempt to leave the scene, “gave rise to an ‘articulable suspicion’ that [he] was engaged in criminal activity and authorized police to stop [him] briefly for investigation. . . . Reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop.” Id. at 286.

Although the anonymous tip in the present case is closely akin to those in Swanson and Moreland, the added factor here is that Officer Perkins recognized defendant and the Camaro, prior to making the investigatory stop, as having been involved in an investigation where drugs were found in the immediate vicinity in the past month. “An officer is not required to ignore what he observes when legitimately acting in another capacity.” Almand, supra at 41. Perkins’ testimony was confirmed by the second officer, who stated that he (Perkins) revealed this history while they were driving alongside defendant’s car. This knowledge, along with the verified aspects of the caller’s tip, i.e., the model and license plate number of defendant’s car and its location one block from its predicted position, gave rise to a reasonable suspicion that defendant was in possession of drugs. “Reasonable suspicion ... is dependent upon both the content of information possessed by police and its degree of reliability. Both factors — quantity and quality — are considered in the ‘totality of the circumstances — the whole picture,’ [cit.], that must be taken into account when evaluating whether there is reasonable suspicion. Thus, if the tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.” White, supra, 496 U. S. at 330. The totality of these circumstances provided the “ ‘further observation and corroboration (were) required before a forcible stop was authorized.’ ” Moreland, supra at 219.

Decided February 23, 1993

Reconsideration denied March 11, 1993

Britt R. Priddy, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellant.

Langley & Lee, Donald W. Lee, for appellee.

As in White, supra, 496 U. S. at 331, “when the officers stopped [defendant], the anonymous tip had been sufficiently corroborated to furnish reasonable suspicion that [defendant] was engaged in criminal activity and that the investigative stop therefore did not violate the Fourth Amendment.”

“This appeal does not involve a trial court’s rulings on disputed facts and credibility at a suppression hearing, which must be accepted by a reviewing court unless clearly erroneous, [cit.]. . . . Rather, ‘(t)his court’s responsibility in reviewing the trial court’s decision on a motion to suppress is to ensure that there was a substantial basis for the decision. (Cit.)’ ” McFarland, supra at 495. As in McFarland, we find that there was not, and we reverse.

Judgment reversed. Birdsong, P. J., and Andrews, J., concur.

       For purposes of this decision, we will consider evidence offered before a magistrate at appellee’s committal hearing, and evidence presented at two evidentiary hearings on appellee’s motion to suppress. The commitment hearing predated the suppression hearings by at least five months. “In considering the legality of a search, this appellate court can consider all relevant evidence of record, wherever located. . . .” (Emphasis in original.) Newsome v. State, 192 Ga. App. 846, 847 (1) (386 SE2d 887) (1989). See also Sanders v. State, 235 Ga. 425, 431 (219 SE2d 768) (1975) (commitment hearing testimony considered in reviewing suppression issue); Barnett v. State, 204 Ga. App. 491 (1) (420 SE2d 43) (1992); Perry v. State, 204 Ga. App. 643 (1) (419 SE2d 922) (1992). We will not consider evidence adduced at a probation revocation hearing as that involved a separate offense which was not of record in this case.


author: Pope, Chief Judge.

text:
    A92A2279.
    PINSON v. THE STATE.
    (429 SE2d 106)
   Pope, Chief Judge.

Defendant Janeen Pinson was charged with the offense of trafficking in cocaine and was convicted of the lesser included offense of possession of cocaine with intent to distribute. She appeals.

1. First, defendant argues the trial court erred in admitting evidence of defendant’s in-custody statement in which she admitted meeting a man named Dave to pick up a package of what she knew to be cocaine with the intent of delivering it to someone else for payment. At the admissibility hearing, defendant testified she fabricated the story about the cocaine in response to a promise by the interrogating officer that she would be allowed to go home if she cooperated. The evidence shows defendant was interrogated in the office of a retail store which was described as at least 10 feet by 12 feet in dimensions. As many as five police officers were in the room at different times during the period defendant was detained for questioning. Defendant argues this evidence shows her statement was not freely and voluntarily given.

“To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” OCGA § 24-3-50. We have considered the evidence and conclude it does not support defendant’s claim that the setting and circumstances in which she was questioned were unduly coercive. In contradiction of defendant’s testimony, the interrogating officer testified and denied any promises or threats were made to the defendant when she was questioned. “Factual and credibility determinations . . . made by a trial judge after a suppression hearing must be accepted by appellate courts unless such determinations are clearly erroneous.” (Citations and punctuation omitted.) Daniel v. State, 150 Ga. App. 798, 801 (2) (258 SE2d 604) (1979). We hold the trial court did not err in ruling the in-custody statement was admissible.

2. The cocaine at issue in this case was found in a purse the defendant admitted she mistakenly left in the parking lot of a retail store. Defendant argues the trial court erred in admitting into evidence cocaine identified as that found in the purse because a proper chain of custody was not shown and because the evidence did not show the cocaine taken from the purse and the cocaine presented at trial were identical. We reject both arguments.

Testimony was presented that the voucher attached to the evidence contained a proper notation as to transfer of custody for each time the evidence was brought to or taken from the police department crime lab. That the voucher contained no notation as to who conducted a fingerprint test did not show a break in the chain of custody. The evidence established that the fingerprint test was conducted at the police crime lab at the direction of the officer in charge of the case before it was transported to the State crime lab. “The circumstances relied upon by [defendant] in support of this enumeration relate only to the mere possibility of a break in the chain of custody. There being, at most, bare speculation of tampering, substitution, or misidentification of the drugs as those which came from [defendant], the trial court correctly admitted the cocaine into evidence.” (Citations and punctuation omitted.) Lewis v. State, 198 Ga. App. 808, 809 (403 SE2d 233) (1991).

Decided February 25, 1993

Reconsideration denied March 11, 1993.

Groover & Childs, Sara E. Roberts, for appellant.

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Assistant District Attorney, for appellee.

The objection on the ground of identity is based on the fact that the officer who took the evidence from the purse and submitted it to the police department crime lab described the evidence on the evidence voucher as six plastic bags of suspected cocaine. At trial, the evidence consisted of nine bags. It is obvious from the testimony that the discrepancy arises from the fact that one or more of the six bags found in defendant’s purse contained smaller bags and that the total number of plastic bags of cocaine found in the purse matches the number in the State’s exhibit of evidence. Despite any confusion over the total number of bags of cocaine at issue in this case, “there is no evidence of tampering or substitution, and no evidence of a break in the chain of custody.” Eddy v. State, 194 Ga. App. 576 (1) (391 SE2d 37) (1990).

Judgment affirmed. Corley, P. J., and Johnson, J., concur.


text:
    A92A2417.
    GETTY v. THE STATE.
    (429 SE2d 100)
   Beasley, Judge.

Getty was indicted as a recidivist and charged with armed robbery (OCGA § 16-8-41 (a)), and burglary (OCGA § 16-7-1). He was convicted by a jury of the former offense and pled guilty to the latter. He was sentenced as a recidivist to life imprisonment for armed robbery and to a concurrent ten-year term for burglary. His conviction was affirmed on appeal to this court on the sole ground raised, sufficiency of the evidence. Getty v. State, 202 Ga. App. 490 (415 SE2d 29) (1992). The case is now before us from the denial of appellant’s pro se “motion to correct illegally imposed sentence.” Finding no legal error in the sentence, we affirm.

Appellant contends that the trial court exceeded its discretion in sentencing him to life imprisonment and thus violated his rights to due process of law as guaranteed under the Fourteenth Amendment to the United States Constitution.

The indictment contained two recidivist counts specifying that appellant previously pled guilty in Georgia to three counts of burglary and one count of armed robbery for which he was sentenced to confinement in a penitentiary, and that he entered a nolo contendere plea to robbery with a firearm in a Florida court, for which he was also sentenced to confinement in a penal institution. The recidivism counts were not disclosed to the jury. During sentencing, certified copies of appellant’s prior convictions were admitted in evidence and considered by the trial court.

The penalty provision of the armed robbery statute, OCGA § 16-8-41 (b), specifies: “A person convicted of the offense of armed robbery shall be punished by death or imprisonment for life or by imprisonment for not less than five nor more than 20 years; provided, however, that, for a second or subsequent such offense, the defendant shall be punished by imprisonment for not less than ten years.”

The general recidivist statute, OCGA § 17-10-7 (a), provides in relevant part: “Any person convicted of a felony offense in this state or having been convicted under the laws of any other state or of the United States of a crime which if committed within this state would be a felony and sentenced to confinement in a penal institution, who shall afterwards commit a felony punishable by confinement in a penal institution, shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his discretion, probate or suspend the maximum sentence prescribed for the offense.”

OCGA § 17-10-7 (b) mandates that a defendant convicted of a fourth felony offense “serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.” Although the foregoing Code section specifically excludes capital felonies, “[f]or the purpose of imposition of punishment — armed robbery is not a capital felony. Collins v. State, 239 Ga. 400, 402 (236 SE2d 759). The general recidivist statute includes — for purpose of punishment — the offense of armed robbery.” Davis v. State, 159 Ga. App. 356, 361 (4) (b) (283 SE2d 286) (1981). Under the authority of Collins and Davis, “this court has held ‘if death is not a possible sentence, insofar as punishment is concerned, the offense cannot be capital, and a defendant charged with armed robbery may be indicted as a recidivist. . . .’ [Cits.]” Scott v. State, 172 Ga. App. 725, 728 (5) (324 SE2d 565) (1984).

Decided February 22, 1993

Reconsideration denied March 11, 1993

Michael L. Getty, pro se.

Edward D. Lukemire, District Attorney, Shelley S. Howard, Assistant District Attorney, for appellee.

“ ‘The sentence to which a defendant is subject is controlled by the indictment. If the state indicts the defendant for armed robbery and in the recidivist count includes separate convictions of three prior felonies — (OCGA § 17-10-7 . . .) is applicable. . . . [Cit.]’ ” (Emphasis omitted.) State v. Baldwin, 167 Ga. App. 737, 739 (3) (307 SE2d 679) (1983).

“ ‘The power to create crimes and to prescribe punishment therefor is legislative.’ [Cit.] . . . ‘The judge is a mere agent of the law. He has no discretion except as it is given him. The penalty is affixed by law.’ [Cit.] ... ‘In the absence of legislation, the judiciary cannot exercise discretion in fixing the quantum of punishment to be inflicted upon criminals. Such power is not one which inheres in the judicial department.’ [Cit.] Thus, it is within the power of the legislature to direct the punishment to be prescribed for second offenders and to leave no discretion to the trial judge.” (Emphasis omitted.) Knight v. State, 243 Ga. 770, 771 (1) (257 SE2d 182) (1979).

The trial court was authorized to sentence appellant under the general recidivist statute, OCGA § 17-10-7 (a), to the “longest period of time prescribed for the punishment of [armed robbery].” “ ‘The maximum penalty upon conviction for armed robbery is life imprisonment. (Cits.) Life imprisonment — as prescribed by the legislature, was the only authorized punishment under (OCGA § 17-10-7 (a) . . .).’ . . . [Cit.]” (Emphasis omitted.) Baldwin, supra at 739. It follows that the sentence imposed is within the limits prescribed by law. No violation of the Fourteenth Amendment has been shown.

Judgment affirmed. Birdsong, P. J., and Andrews, J., concur.

       This court has held that armed robbery is a capital offense so that the speedy trial requirements of OCGA § 17-7-170 do not apply. White v. State, 202 Ga. App. 370 (414 SE2d 296) (1991); Harper v. State, 203 Ga. App. 775 (417 SE2d 435) (1992). It is not regarded as a capital felony for purposes of waiving indictment or for appellate jurisdiction. See Ivory v. State, 160 Ga. App. 193, 195 (2) (286 SE2d 435) (1981); 1983 Ga. Const., Art. VI, Sec. VI, Par,. III (8).