text:
    A01A1819.
    BROWN v. THE STATE.
    (557 SE2d 464)
   Miller, Judge.

Pierre Shakeem Brown, a juvenile, was tried as an adult and convicted of rape and two counts of child molestation. On appeal Brown argues that the court erred in denying his motion to suppress his statement to police and that the court imposed an excessive sentence. We discern no error and affirm.

1. Brown argues that his statement to police in which he confessed to molesting and sodomizing the three-year-old victim was not given knowingly and voluntarily. He contends that his admission to police was not voluntary because (a) he and his mother were misled into believing that he was being prosecuted as a juvenile and not as an adult, (b) he had only a ninth grade education and was enrolled in special education classes, (c) his mother desired to be present during his interview but was not brought to the police station until 45 minutes into the interview, and (d) his statement was given in the “hope of benefit.”

Even if officers did violate juvenile arrest procedures, Brown’s statements are not necessarily rendered inadmissible. The issue is whether Brown made the statements after freely, knowingly, and voluntarily waiving his Miranda rights. In determining whether the statements were knowingly, freely, and voluntarily given, the court considers the following:

the age and education of the accused; his knowledge of the charges against him and of his right to consult with an attorney; whether he was allowed to consult with relatives; whether he was interrogated before or after being formally charged; the method and length of the interrogation; whether the juvenile refused to give a voluntary statement on prior occasions; and whether the juvenile later repudiated the custodial statement.

(a) Brown argues that neither he nor his mother was informed at the time of his arrest or prior to giving his statement that he would be prosecuted as an adult; but no authority indicates such a requirement must be met in order to render his statements voluntary. Again, the issue is not whether Brown or his mother knew that he would be prosecuted as an adult, but whether Brown’s custodial statements were made voluntarily. Moreover, the officer who conducted the interview testified that Brown was told that he faced adult charges but did not recall at what point he informed Brown. The court had the opportunity to listen to the testimony and the audiotape of the interrogation and could have rejected Brown’s contention that he was not told that he faced adult charges.

(b) Prior to the interrogation, officers established that Brown could read and write and that he understood the charges against him. Thus, the fact that Brown had a ninth grade education or was enrolled in special education classes alone is not determinative.

(c) The officer conducting the investigation testified that he may have told Brown: “why don’t you just tell me the truth so that you can just get on with this and get on with your life and let’s get out of here.” This statement was not a “hope of benefit” that would render Brown’s statement involuntary. The officer testified that he made Brown no promises or gave any indication that if Brown told the truth, he would get to go home. The officer simply pointed out that the sooner Brown told the truth, the sooner the interrogation would conclude. Even if, as Brown initially stated, the officer told Brown that if he cooperated, he could go home, Brown later admitted that what was on the tape was the truth — officers did not promise him anything nor was he coerced into saying anything.

Decided December 13, 2001.

Mitchell D. Durham, for appellant.

Patrick PL. Head, District Attorney, Amelia G. Pray, Assistant District Attorney, for appellee.

(d) Finally, the absence of Brown’s mother did not render the statements inadmissible. The Supreme Court of Georgia has held that “there is no requirement that a parent be present during questioning of a minor.” Moreover, testimony at the Jackson-Denno hearing established that Brown did not request the presence of his mother during questioning.

In denying Brown’s motion to suppress, the court found that his age and his ninth grade education did not indicate a lack of voluntariness for his statement, that Brown had the mental capacity to fully understand the charges against him, that the length of the interrogation was not overly burdensome, and that the officers were not confrontational, harassing, or threatening during the interrogation. The evidence supports the court’s ruling.

2. The court sentenced Brown to 40 years — 15 years to serve and 25 years on probation. Brown argues that his sentence exceeds the maximum allowable and must be declared null and void. Tin's enumeration is without merit. In Brown’s case, the crime of rape would carry a penalty of imprisonment for life, or imprisonment for not less than ten nor more than twenty years. For the crime of child molestation, his first offense carries a penalty of not less than five nor more than twenty years. The court could have sentenced Brown to life plus 20 years, or 40 years to serve. Thus, Brown’s sentence was within the statutory limits. Moreover, any question as to the ex-cessiveness of a sentence imposed within statutory limits should be addressed to the sentence review panel as provided in OCGA § 17-10-6.

Judgment affirmed.

Andrews, P. J, and Eldridge, J, concur.

        Skidmore v. State, 226 Ga. App. 130, 131 (2) (485 SE2d 540) (1997).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

        Skidmore, supra, 226 Ga. App. at 131 (2).

       (Citation omitted.) Id.; see also Reynolds v. State, 217 Ga. App. 570, 572 (5) (458 SE2d 855) (1995).

       See Skidmore, supra, 226 Ga. App. at 130, 131 (2).

       Compare Howe v. State, 250 Ga. 811, 812 (1) (301 SE2d 280) (1983); see also Donaldson v. State, 249 Ga. 186, 189 (5) (289 SE2d 242) (1982).

       See Lee v. State, 270 Ga. 798, 800 (2) (514 SE2d 1) (1999).

       (Citations omitted.) McKoon v. State, 266 Ga. 149, 151 (2) (465 SE2d 272) (1996).

       OCGA § 16-6-1 (b).

       OCGA § 16-6-4 (b).

       See Jones v. State, 247 Ga. App. 43, 45 (2) (543 SE2d 72) (2000).

        Brown v. State, 242 Ga. App. 347, 350 (3) (529 SE2d 650) (2000); Rehberger v. State, 235 Ga. App. 827, 830 (4) (510 SE2d 594) (1998).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A01A2049.
    POWELL v. THE STATE.
    (577 SE2d 466)
   Miller, Judge.

Vashawn Powell was convicted of theft by taking and of possession of a firearm by a convicted felon. He appeals, arguing that the evidence was insufficient to sustain his conviction and that certain testimony was inadmissible. Since both arguments lack merit, we affirm.

1. As an appellate court we view the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt. We do not weigh the evidence or judge the credibility of the witnesses.

Viewed in this light, the evidence showed that some trucks were broken into at a United Parcel Service, Inc. (UPS) facility, resulting in certain items missing, including a box of hair weaves and some compact discs. The next day police obtained consent to search the vehicle Powell drove, in which they found the stolen items. Powell, a convicted felon, volunteered that a gun he owned was in the glove box in the vehicle, which police then found in the glove box. Powell accompanied police to the station, where after being advised of his rights, he freely confessed to breaking into the UPS trucks and to stealing several items, including those found in the car. He confirmed that he possessed the gun.

Powell contends that the convictions were based on his confession alone, with no corroboration, and therefore cannot be sustained. “Although an uncorroborated confession cannot support á conviction under OCGA § 24-3-53, corroboration of a confession in any particular satisfies the requirements of the statute.” The amount of evidence needed to corroborate a confession is a question for the jury. The evidence that the same items stolen from UPS were found in Powell’s vehicle, along with the gun that Powell said would be there, provides corroborating physical evidence of Powell’s confession. Further, Powell’s confession contained details about how the seals and locks were cut to gain access to steal the items from UPS, details that only the perpetrator of the crime would have known and that were consistent with the physical evidence at the crime scene. The evidence sufficed to sustain the convictions.

2. Powell claims that certain testimony regarding what an informant said and regarding a parole violation was inadmissible. Powell, however, did not object to any of this testimony at trial and therefore has waived any error.

Decided December 13, 2001.

John P. Cannon, for appellant.

Kenneth B. Hodges III, District Attorney, Troy E. Golden, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Eldridge, J, concur.

        Sapp v. State, 273 Ga. 472, 473 (543 SE2d 27) (2001); see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Sapp, supra, 273 Ga. at 473.

       (Citation omitted.) Sands v. State, 262 Ga. 367 (1) (418 SE2d 55) (1992).

        Ward v. State, 242 Ga. App. 246, 247 (1) (529 SE2d 378) (2000).

        Moore v. State, 246 Ga. App. 163, 166 (5) (539 SE2d 851) (2000); Davitt v. State, 232 Ga. App. 427 (1) (502 SE2d 300) (1998).


text:
    A01A2064.
    RATLEDGE v. THE STATE.
    (557 SE2d 458)
   Miller, Judge.

Joseph Ratledge appeals from his convictions on two counts of cruelty to children. He contends that (1) the evidence was insufficient to sustain his conviction, (2) the trial court erred by admitting evidence of prior difficulties between himself and the victim, and (3) the trial court erred by failing to merge the two counts against him for sentencing purposes. We hold that the evidence was sufficient to sustain the convictions and that the trial court properly admitted the evidence of prior difficulties, but since the trial court erred by failing to merge Counts 1 and 2, we must vacate the sentences on both counts and remand the case for resentencing.

Viewed in the light most favorable to the verdict, the evidence reveals that while caring for two-year-old H. M., Ratledge took the child into the bathroom and immersed her feet in scalding hot water, causing H. M.’s skin to burn off. H. M. suffered painful bums, screamed in pain, and had nightmares during her recovery. H. M. told others that Ratledge was the one who burned her by holding her feet down in hot water.

Expert testimony at trial revealed that the bum patterns on H. M.’s body were consistent with purposefully inflicted immersion burns. Doctors who initially treated H. M. immediately suspected child abuse and informed authorities. The trial testimony also revealed that H. M.’s feet would likely have to have been held under 128°F water for 30 to 45 seconds in order to cause the type of bum injuries that H. M. suffered.

Count 1 of the indictment charged that Ratledge unlawfully and maliciously caused cruel and excessive physical and mental pain to H. M. “by placing her feet into excessively hot water . . . ,” and Count 2 charged that Ratledge unlawfully and maliciously caused cruel and excessive physical and mental pain to H. M. “by holding her feet in excessively hot water long enough to cause severe burns. . . .” The jury found Ratledge guilty on both counts, and the trial court sentenced Ratledge to 20 years on each count, with the sentences to run concurrently.

1. On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Ratledge contends that the evidence was insufficient for any rational trier of fact to find him guilty of cruelty to children. We disagree.

“Any person commits the offense of cruelty to children . . . when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.”

For purposes of this Code section, malice in the legal sense [ ] imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result. Intention may be manifest by the circumstances connected with the perpetration of the offense. [Ratledge’s] intent was a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which [he was] prosecuted.

The evidence revealed that Ratledge took H. M. into the bathroom where she was burned and that H. M. told other people that it was Ratledge who burned her. The burns on H. M.’s body were consistent with purposeful immersion in excessively hot water. H. M. was burned to the point that skin had melted from her feet and she was in extreme physical and emotional pain. Ample evidence sustained the convictions.

Decided December 13, 2001.

Cruelty to children. Walker Superior Court. Before Judge Wood. Robert L. Stultz, for appellant.

2. Ratledge argues that the trial court should have excluded evidence regarding prior incidents of abuse between H. M. and Ratledge since these prior incidents were not similar to the burning incident at issue. Ratledge failed to object to the evidence on this basis in the trial court, however, and therefore has not preserved this issue for review on appeal.

Even if the issue were properly before us, evidence of prior abuse between the victim and the defendant can be admissible to show motive in a child cruelty case. Moreover, Ratledge opened the door for the admission of this evidence by asking one of the State’s witnesses about evidence of prior abuse between Ratledge and H. M.

3. Ratledge further contends, and the State concedes, that the two counts of cruelty to children should have merged for sentencing purposes. We agree.

Count 1 charged Ratledge with cruelty to children for “placing [H. M.’s] feet into excessively hot water . . . ,” and Count 2 charged Ratledge with cruelty to children for “holding [H. M.’s] feet in excessively hot water long enough to cause severe burns. . . .” Ratledge could not “hold” H. M.’s feet in excessively hot water until such time as he had already “placed” her feet in the hot water. Since the two counts were based on the same conduct, the court should have merged one count into the other and sentenced only on the surviving count. “[T]he guilty verdicts [will] stand[; however,] we must vacate the two convictions and sentences and remand the case to the trial court to merge one of the counts into the other and to resentence on the surviving count.”

Judgment affirmed in part and vacated in part. Case remanded to the trial court for resentencing.

Andrews, P. J., and Eldridge, J., concur.

Herbert E. Franklin, Jr., District Attorney, Christopher A. Arnt, Assistant District Attorney, for appellee.

        Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       Id.; see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       OCGA § 16-5-70 (b).

       (Citations, punctuation and emphasis omitted.) Rigenstrup v. State, 197 Ga. App. 176, 180 (4) (398 SE2d 25) (1990).

       See Stokes v. State, 204 Ga. App. 586, 587 (2) (420 SE2d 84) (1992).

       See Fairbanks v. State, 225 Ga. App. 666-667 (1) (484 SE2d 693) (1997).

       See Diaz v. State, 262 Ga. 750, 753 (4) (425 SE2d 869) (1993); compare Respres v. State, 244 Ga. App. 689, 690-691 (2) (536 SE2d 586) (2000) (“Our courts have long held that evidence of prior difficulties between an accused and the victim is relevant to show the bent of mind, motive, intent, and course of conduct of the accused toward the victim.”) (punctuation and footnote omitted).

       See, e.g., Maner v. State, 221 Ga. App. 826, 830 (3) (472 SE2d 716) (1996).

        Lynn v. State, 251 Ga. App. 155, 158 (4) (553 SE2d 836) (2001).

       (Footnote omitted.) Id.


author: Ruffin, Judge.

text:
    A01A2123.
    JENKINS v. THE STATE.
    (557 SE2d 470)
   Ruffin, Judge.

This appeal stems from a tragic automobile collision caused by Vicky Jenkins while she was driving under the influence of alcohol. As the victim was waiting at a railroad crossing for a train to pass, Jenkins drove her pickup truck into the rear of the victim’s car and rammed it into the train. The victim’s injuries left her paralyzed from the chest down. Following trial, a jury found Jenkins guilty of one count of driving under the influence of alcohol to the extent it was less safe for her to drive, one count of driving with an alcohol concentration of more than 0.10 grams, and one count of causing a serious injury by vehicle. At sentencing, the trial court merged both counts of driving under the influence into Jenkins’ conviction for causing a serious injury by vehicle. Jenkins appeals, asserting that the trial court erred by failing to merge the driving under the influence counts prior to trial and in admitting certain evidence. Finding no error, we affirm.

1. Jenkins asserts that the trial court should have merged the charges against her prior to trial and that its failure to do so resulted in the admission of prejudicial evidence. Jenkins has not shown, however, that she ever raised this issue before the trial court. Under these circumstances, she has waived appellate review of the matter. Furthermore, even if Jenkins had preserved the issue, we are aware of no authority, and she has not cited any, that required the court to merge the counts prior to trial.

2. Jenkins raises several arguments in support of her assertion that the trial court erred in admitting evidence of a similar transaction. Although she raised some of the arguments during the hearing conducted pursuant to Uniform Superior Court Rule 31.3 (B), Jenkins failed to object when the similar transaction evidence was introduced during the trial. Such objection was required to preserve the issue for appeal. Furthermore, we note that the transcript of the similar transaction hearing contains ample evidence that Jenkins committed the similar act. An eyewitness to the act testified that he saw Jenkins driving erratically immediately before she lost control of her pickup truck, drove off the road, and rolled her truck over. A Georgia State Patrol trooper who investigated the accident stated that Jenkins admitted to driving the truck and that, based on the results of a blood test showing her blood alcohol concentration was 0.19 grams, she was charged with driving under the influence. The fact that, at the time of this trial, Jenkins had not yet been tried for the similar act did not render the evidence inadmissible.

3. Jenkins next asserts that the trial court erred by allowing an expert witness for the State to testify about the symptoms of impairment corresponding with her blood alcohol level. Jenkins argues that the State failed to lay a sufficient foundation establishing that the witness was an expert in this field. We disagree.

The State’s witness testified that she was a forensic toxicologist for the Georgia Bureau of Investigation (“GBI”), had a master’s degree in forensic science, a bachelor’s degree in chemistry, and had completed training with the GBI on the pharmacology of drugs and alcohol. The witness further testified that she had taken a pharmacology class where she learned about “the effects of drugs and what they do to your body and how they impair you.”

“An expert is one whose habits and profession endow him or her with a particular skill in forming an opinion on the subject matter in inquiry. This Court has recognized that a combination of training and experience may be sufficient to qualify one as an expert witness.” We review a trial court’s ruling qualifying a witness as an expert for abuse of discretion. Because the evidence in this case showed that the toxicologist was qualified to testify about impairment levels of intoxicated drivers, the trial court did not abuse its discretion in admitting the evidence.

4. Finally, Jenkins asserts that the trial court erred in admitting her blood test results into evidence because the arresting officer did not timely inform her of the implied consent warning. Again, however, Jenkins has not shown that she raised this issue before the trial court, and it is, therefore, waived.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

Decided December 13, 2001.

Martin H. Eaves, for appellant.

Richard E. Currie, District Attorney, for appellee.

       Jenkins’ failure to state how she preserved this assertion is a violation of Court of Appeals Rule 27 (a) (1).

       See Holt v. State, 244 Ga. App. 341, 344 (2) (535 SE2d 514) (2000).

       See Spear v. State, 270 Ga. 628, 631 (5) (513 SE2d 489) (1999); Young v. State, 269 Ga. 478, 479 (3) (499 SE2d 60) (1998).

       Jenkins asserts that the State did not prove that she committed the independent act, but does not challenge the similarity of the act or the purpose for which it was introduced.

       See Howard v. State, 204 Ga. App. 882, 883 (1) (420 SE2d 811) (1992).

       (Citations and punctuation omitted.) Flanigan v. State, 250 Ga. App. 737, 738 (1) (552 SE2d 894) (2001).

       See id.

       See id.; see also Moss v. State, 209 Ga. App. 59, 61 (2) (432 SE2d 825) (1993).

       See Davitt v. State, 232 Ga. App. 427 (1) (502 SE2d 300) (1998); Taylor v. State, 232 Ga. App. 825, 826 (2) (502 SE2d 540) (1998); see also Court of Appeals Rule 27 (a) (1).


text:
    A01A2266.
    WILLIAMS v. THE STATE.
    (557 SE2d 473)
   Ruffin, Judge.

A jury found Russell Williams guilty of obstruction of an officer, and the trial court sentenced him to 12 months probation, fined him, and required him to perform 120 hours of community service. Williams appealed his conviction, which this Court affirmed. Williams was then scheduled to report to his probation officer, but he failed to do so and was arrested. Following his release from jail, Williams filed multiple motions, including a motion to discharge him from probation. The trial court denied Williams’ motion, and this appeal ensued. For reasons that follow, we affirm.

“The burden is on him who asserts error to show it affirmatively by the record, and this cannot be done by evidentiary assertions in enumerations and briefs.” Moreover, “where the proof necessary for determination of the issues on appeal is omitted from the record, the appellate court must assume that the judgment below was correct and affirm.” Here, Williams provides both a transcript of a hearing and an abbreviated record. We note, however, that no testimony was elicited during the hearing. And, although Williams cites the record to support certain factual assertions, the record consists largely of documents that cannot be used to support such assertions. Accordingly, many of Williams’ factual assertions are unsupported by the record. Nevertheless, where “facts . . . necessary for disposition are stated in [a] brief, and the State concedes such statement is substantially correct, we are permitted to reach a decision upon the agreed upon facts.”

The relevant facts, as agreed to by the parties and/or as demonstrated by the record, show that during the pendency of Williams’ original appeal, he kept in contact with his probation officer. After this Court affirmed Williams’ conviction, he was required to begin his sentence of probation. Williams did not appear as required, and his probation officer swore out an arrest warrant on January 10, 2001. Williams subsequently was arrested and spent five days in jail.

According to Williams, he then filed several motions, including motions to “(1) credit 120 hours as time served, (2) reimburse [him] . . . for earnings and freedom lost during the 5 days of illegal incarceration, and (3) to dismiss [him] from probation as [he] had already reported to [the] probation officer for twelve months as required.” The record, however, contains only Williams’ motion to discharge him from probation, which the trial court denied. Williams then filed this appeal, asserting multiple enumerations of error. We address each in turn.

1. Williams contends that he was wrongfully arrested in January 2001, arguing that the trial court erred in issuing the arrest warrant. On January 3, 2001, the trial court entered an order directing Williams to attend a hearing on February 14, 2001, “to show cause . . . why he should not start serving his sentence.” Thus, Williams reasons, his sentence could not start until after this date and any arrest beforehand was invalid. Nonetheless, the trial court issued an arrest warrant on January 10, 2001, based upon Williams’ failure to report to his probation officer on January 9, 2001. According to Williams, the arrest warrant was signed “in violation” of the trial court’s prior order.

Williams provides no legal authority to support his reasoning, and the law does not support his theory. Rather, as Williams was not incarcerated during the pendency of his appeal, the earliest his sentence could begin was the date the remittitur of the appellate court was made the judgment of the court, which was December 26, 2000. Thus, Williams could be required to report to his probation officer after this date. It follows that Williams was subject to arrest for failure to do so. The fact that a subsequent hearing was scheduled to address Williams’ sentence does not demand a different result.

2. Williams also argues that the trial court violated due process by requiring him to appear in court on February 1, 2001. Evidently, the February 1 hearing was scheduled to address a petition filed by Williams’ probation officer to modify or revoke Williams’ probation. Again, Williams provides no legal authority as to why such hearing violates due process, and we find none. To the contrary, due process requires such hearing.

3. According to Williams, the trial court erred in failing to credit the five days he spent in jail against the 120 hours of community service he was ordered to serve. Under OCGA § 17-10-11 (a), a person is entitled to full credit for time “in confinement awaiting trial and for each day spent in confinement, in connection with and resulting from a court order entered in the criminal proceedings for which sentence was imposed.” Here, however, Williams was in jail while awaiting a probation revocation hearing. Thus, OCGA § 17-10-11 (a) does not apply, and Williams was not entitled to “credit” for time served.

Nonetheless, we recognize that time spent in jail awaiting a probation revocation hearing cannot be used to expand the original sentence. And, where a probationer spends time in jail awaiting such hearing, any time served is “deducted from and considered a part of the time he was originally sentenced to serve.” In this case, Williams does not argue that his time in jail increased his sentence. Rather, he asserts that, because he spent time in jail, the trial court was required to excuse him from community service. This, however, is not the law. It follows that this enumeration of error presents no basis for reversal.

4. Williams contends that he was “denied restitution for loss of earnings and freedom due to the court’s error which resulted in [his] illegal incarceration.” As discussed above, however, Williams’ incarceration was valid. Moreover, Williams has not shown that he raised the restitution argument before the trial court, and it is well established that this Court will not address an enumeration of error raised for the first time on appeal.

5. In his final enumeration of error, Williams argues that the requirement that he serve his probation sentence places him in double jeopardy. According to Williams, he already served his sentence because he was required to report to his probation officer while his appeal was pending in this Court. The record reflects that, prior to December 26, 2000 — the starting date for Williams’ sentence — he met with his probation officer four times and spoke with him on the phone five times. During the hearing on Williams’ motion to discharge him from probation, the State argued that Williams was not on probation during that time, but merely kept the probation officer “apprised of his whereabouts during the pendency of the appeal.”

Decided December 13, 2001.

Russell Williams, pro se.

Richard H. Taylor, Solicitor-General, for appellee.

As mentioned above, Williams bears the burden of demonstrating error affirmatively by the record. Arguably, Williams has failed to do so. Although subpoenaed to the hearing, the probation officer did not attend. The trial court explained, on the record, that it excused the officer from attending the hearing because “he was under subpoena to another [c]ourtUpon learning that the probation officer was not present, Williams responded, “that’s fine.” Williams did not ask for a continuance and chose to proceed with the hearing. Thus, there was no testimony from the probation officer as to whether Williams was required to comply with various terms and conditions of probation, such as remaining within the jurisdiction. And the record shows that Williams did not pay his fines during this time, which suggests that he did not believe that he was serving his sentence.

The only competent evidence that Williams was on probation demonstrates that Williams remained in contact with his probation officer while his original appeal was pending in this Court. The State’s explanation for this — that the officer was merely keeping track of Williams’ whereabouts — is somewhat plausible. Under these circumstances, we lack sufficient evidence to conclude that Williams was on probation, in which case we assume the judgment below was correct and affirm.

Moreover, it appears from the record that the trial court did give Williams credit for having met with his probation officer prior to the start of his sentence. Although the trial court required Williams to complete his community service and to pay his fines, it terminated his supervised probation. It follows that this enumeration of error presents no basis for reversal.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       (Citations and punctuation omitted.) Holzmeister v. State, 156 Ga. App. 94 (1) (274 SE2d 109) (1980).

        Transport Indem. Co. v. Hartford Ins. Co., 198 Ga. App. 265, 266 (401 SE2d 294) (1990).

       See Jones v. State, 273 Ga. 231, 236 (9) (539 SE2d 154) (2000) (unsworn letter inadmissible hearsay); Hipple v. Simpson Paper Co., 234 Ga. App. 516, 519 (5) (507 SE2d 156) (1998) (this Court cannot consider allegations of fact found in a party’s pleadings that are not admitted by the opposing party).

        Holzmeister, supra.

       The record also contains Williams’ motion to reinstate his driver’s license, which the trial court dismissed for lack of jurisdiction. As Williams has not asserted this ruling as error, we do not reach this issue on appeal.

       See Serpentfoot v. State, 241 Ga. App. 35, 36-37 (2) (524 SE2d 516) (1999) (quoting Huff v. McLarty, 241 Ga. 442 (246 SE2d 302) (1978)).

       See OCGA § 42-8-38 (a) (“Whenever, within the period of probation, a probation supervisor believes that a probationer under his supervision has violated his probation in a material respect, he may arrest the probationer.”).

       See Smith v. Nichols, 270 Ga. 550, 554-555 (2) (b) (512 SE2d 279) (1999).

       See Dickey v. State, 157 Ga. App. 13, 14-15 (2) (276 SE2d 75) (1981); Penney v. State, 157 Ga. App. 737, 739 (4) (278 SE2d 460) (1981).

       See Dickey, supra.

       (Punctuation omitted.) Id. at 15 (2).

       Id.

       See Shaw v. State, 247 Ga. App. 867, 869 (1) (545 SE2d 399) (2001).

       See Holzmeister, supra.

       See OCGA § 42-8-35.

       See OCGA § 42-8-34.1 (f).

       See Transport Indem. Co., supra.


text:
    A01A2325.
    BENEFIELD v. THE STATE.
    (557 SE2d 476)
   Miller, Judge.

Danny Benefield was convicted of burglary. On appeal he contends that the trial court erred by (1) allowing an allegedly biased juror to remain impaneled, (2) failing to instruct the jury on criminal trespass, and (3) finding he did not show that his trial counsel was ineffective. We discern no error and therefore affirm.

At trial the victim testified for the State. During a lunch break following the victim’s initial testimony, juror no. 11 informed the court that he had attended school with the victim. The juror had not seen the victim in several years and did not realize that he knew the victim until after he saw the victim testify at trial. Although the juror initially stated his acquaintance with the victim might affect how he would feel if he ran into the victim after deciding the case, he also stated that he could decide the case based on the evidence and that his initial concerns would in no way affect his decision in the case. Benefield’s counsel also questioned the juror to ensure his impartiality and did not object to the juror remaining impaneled.

Although Benefield’s counsel did not provide any written requests to charge to the court, at the end of the charge conference Benefield’s counsel made an oral request for a charge on criminal trespass. The court did not charge the jury on criminal trespass, and following the charge Benefield’s counsel announced he had no objection to the jury charge. The jury returned a verdict against Benefield for burglary.

New counsel for Benefield filed an amended motion for new trial, in which he argued that the court should have given the charge on criminal trespass and should not have allowed juror no. 11 to remain impaneled. He also argued that Benefield’s trial counsel was ineffective because he failed to object to the biased juror remaining impaneled and because he failed to submit a written request for a charge on criminal trespass.

Benefield’s trial counsel testified at the motion for new trial hearing that he did not object to juror no. 11 because, after the juror was questioned, he was satisfied that the juror could remain impartial. He also testified that he had met with his client on at least 16 occasions for 16 hours prior to trial, and that he and Benefield had discussed their trial strategy. He also testified that he and Benefield discussed the decision not to pursue criminal trespass as a defense and to instead pursue an “all or nothing” strategy at trial where they would not request a jury charge on criminal trespass. After the close of evidence at trial, however, Benefield and his attorney decided to abandon the “all or nothing” strategy and to try to convince the court to charge the jury on criminal trespass.

The court denied the motion for new trial.

1. Benefield contends that the trial court erred by allowing juror no. 11 to remain impaneled. However, Benefield’s counsel did not object at trial to the juror remaining impaneled and therefore has not preserved this issue for review on appeal.

2. Benefield further argues that the trial court erred by failing to charge the jury on the lesser included offense of criminal trespass. Since Benefield announced he had no objection to the jury charge after a request for objections from the trial judge, he has not preserved this issue for appellate review.

Even if the issue were properly before us, “[t]he failure to instruct on a lesser included crime is not error, regardless of whether the evidence would have authorized or demanded such a charge, in the absence of a written request.” Since Benefield did not make a written request for the charge on criminal trespass, the trial court did not err by failing to give such a charge.

3. Benefield urges that trial counsel was ineffective because (a) he failed to file a written request for a jury charge on criminal trespass, and (b) he failed to object to the trial court allowing juror no. 11 to remain impaneled. We disagree.

To prove ineffective assistance, Benefield was required to show that counsel’s performance was deficient and that this deficient performance prejudiced his defense. Decisions regarding matters of trial tactics and strategy, wise or unwise, generally do not amount to ineffective assistance. The trial court’s determination with respect to counsel’s effectiveness will be upheld on appeal unless clearly erroneous. Evidence supported the trial court’s finding that Benefield did not meet his burden of showing deficient performance.

(a) Benefield’s counsel testified that he chose not to file a written request for a jury charge on criminal trespass as a matter of trial strategy. He discussed with Benefield this decision to pursue an “all or nothing” defense instead of a defense that would present criminal trespass as an option for the jury. Counsel’s decision not to request a jury charge on a lesser included offense and to pursue an “all or nothing” defense is a matter of trial strategy and does not amount to ineffective assistance.

Decided December 13, 2001.

Vic Wiegand, for appellant.

Philip C. Smith, District Attorney, Rand J. Csehy, Assistant District Attorney, for appellee.

(b) The evidence shows that Benefield’s counsel made a strategic decision to allow juror no. 11 to remain impaneled, and Benefield has failed to show otherwise. Strategic decisions regarding which jurors to accept or strike are virtually unchallengeable. Here, Benefield’s counsel and the court questioned the juror, and the juror maintained that he could decide the case based on the evidence. Based on their questioning of the juror, both the court and Benefield’s counsel were satisfied that the juror could remain impartial. Evidence supports the trial court’s finding that Benefield has not shown ineffective assistance here.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       See Blankenship v. State, 258 Ga. 43-44 (2) (365 SE2d 265) (1988) (“Failure to object to the court’s ruling on whether or not a juror is qualified shall be a waiver of any such objection.”) (citations and punctuation omitted).

        Bacon v. State, 249 Ga. App. 347, 349 (2) (548 SE2d 78) (2001).

       (Citations and punctuation omitted.) Henderson v. State, 218 Ga. App. 311, 312 (2) (460 SE2d 876) (1995).

        Ellison v. State, 242 Ga. App. 636, 638 (7) (530 SE2d 524) (2000), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Bogan v. State, 249 Ga. App. 242, 244 (2) (547 SE2d 326) (2001).

        Jackson v. State, 209 Ga. App. 53, 56 (7) (432 SE2d 649) (1993).

        Bogan, supra, 249 Ga. App. at 245 (2) (c).

       See Teat v. State, 237 Ga. App. 867, 869 (2) (516 SE2d 794) (1999); Reid v. State, 235 Ga. 378, 379 (1) (219 SE2d 740) (1975).

       See Riley v. State, 268 Ga. 640, 643-644 (6) (491 SE2d 802) (1997).

       See Smith v. State, 224 Ga. App. 819, 820-821 (2) (481 SE2d 896) (1997).


text:
    A01A2366.
    PALMER v. THE STATE.
    (557 SE2d 479)
   Miller, Judge.

Julia Ann Palmer appeals her conviction for theft by shoplifting, contending that the trial court erred in (1) denying her the opportunity of reviewing the prosecutor’s notes so she could properly challenge under Batson the striking of two prospective jurors and (2) sentencing her as a recidivist. For the following reasons, we affirm.

1. Challenging the State’s striking of potential juror nos. 7 and 38 (both of whom belonged to Palmer’s minority race), Palmer claims that she was denied the right to review the prosecutor’s notes regarding all of the potential jurors and thus did not have the opportunity to show the State’s asserted reasons for striking juror nos. 7 and 38 were pretextual.

The State’s reasons for striking juror no. 7 was that the juror had a conviction for a criminal offense and that the juror made no response when the jury pool was asked whether anyone had been accused of a crime. The State’s reasons for striking juror no. 38 were his four prior arrests, his statements that he had been treated unfairly by law enforcement and that he had a problem with law enforcement, and his revealing only one of the four arrests when asked by the State about having been charged with crimes. Palmer concedes with regard to both potential jurors that these explanations were race-neutral on their face.

Palmer claims on appeal, however, that she was denied the opportunity of showing that these reasons were a pretext when the court denied her request to personally review the prosecutor’s notes regarding all jurors to see if other similarly situated jurors were seated. This is not what Palmer argued below, for she stated below only that she was entitled to review the prosecutor’s notes to assist her in selecting a fair and impartial jury more beneficial to her. Georgia law does not accord a defendant the right to review a prosecutor’s juror notes and records. Thus, the trial court did not err in denying Palmer’s request for such documents. Later, during the Batson hearing, Palmer argued that without access to the prosecutor’s notes, she could not explore juror no. 38’s arrest history nor determine whether juror nos. 7 and 38 would serve as fair and impartial jurors. Again, the court properly denied Palmer’s request to review those records.

Not until appeal does Palmer argue that reviewing those records would have allowed her to determine whether similarly situated members of another race were seated on the jury. Nor until appeal does she argue that, as an alternative to her reviewing the arrest and conviction records of all the jurors, the trial court under the authority of an Alabama case should have examined the prosecutor’s notes in camera.

There are at least two problems with Palmer’s appellate arguments. First, Palmer failed to raise these issues below and therefore has waived same. Palmer requested only that she be allowed to review the records, a request that was clearly unauthorized under Georgia law. She never requested that the court review those notes in camera. Nor did Palmer articulate that the reason she wanted to review those records was to determine whether the prosecutor had seated jurors not of Palmer’s race who had similar histories of convictions or arrests. Failure to specify at trial the reason later advanced on appeal waives the argument.

Second, even if the issues had not been waived, Georgia law does not require an in-camera inspection of prosecutor’s notes. Chavarria v. State recently held that a defendant is not entitled to cross-examine a prosecutor on the source of the prosecutor’s information about the stricken prospective jurors, even though that information had not been revealed during voir dire. Chavarria explained that “the law puts the decision of whether to inquire further into the trial court’s hands” and that “evaluation of the prosecutor’s state of mind based on demeanor and credibility lies peculiarly within a trial judge’s province.” Chavarria concluded:

Because there is no requirement that the prosecutor’s explanations be supported by facts ascertained during voir dire and it was the trial court’s duty to inquire as to any suspected impropriety in determining credibility, the trial court did not err in determining that additional information was not required and in not allowing the cross-examination of the district attorney or the prosecuting police officer.

We see no reason to deviate from Chavarria’s holding that it is in the trial court’s discretion as to whether and how to conduct further investigation.

Inasmuch as the failure to require the review of the prosecutor’s notes is the only argument regarding the trial court’s denial of Palmer’s Batson challenges, this enumeration must fail.

2. Palmer’s other enumeration is that the trial court erred in failing, before sentencing her as a recidivist, to ascertain that each of her prior guilty pleas had been accepted only after a determination that a factual basis existed for each plea. At her sentencing, the State tendered certified copies of ten prior convictions. When asked for any objections, Palmer’s counsel responded, “No objection, Your Honor.” Thereupon, the exhibits were admitted into evidence, both parties waived argument, Palmer was found subject to sentencing as a felon, and she was sentenced as a recidivist. Palmer’s failure to object on the basis she now advances — or indeed to even raise the issue of procedural irregularity — waived this point and precludes her from raising it now.

Decided December 13, 2001.

Jeffrey W. Cofer, for appellant.

Robert E. Keller, District Attorney, Kathryn O. Pulliam, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J, and Eldridge, J., concur.

        Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       See Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996).

        King v. State, 273 Ga. 258, 263 (12) (c) (539 SE2d 783) (2000); Jenkins v. State, 269 Ga. 282, 286 (4) (498 SE2d 502) (1998); Fleming v. State, 269 Ga. 245, 248 (5) (497 SE2d 211) (1998).

       Cf. Turner, supra, 267 Ga. at 151 (2).

        David v. State, 740 S2d 1142 (Ala. Crim. App. 1998).

       See King, supra, 273 Ga. at 263 (12) (c); Jenkins, supra, 269 Ga. at 286 (4).

        Wilbanks v. State, 251 Ga. App. 248, 265 (15) (554 SE2d 248) (2001); Williams v. State, 244 Ga. App. 26, 27 (2) (535 SE2d 8) (2000).

       248 Ga. App. 398, 399-402 (2) (546 SE2d 811) (2001).

       Id. at 401 (2).

       (Citations omitted.) Id.

       Id. at 402 (2).

       See OCGA § 16-8-14 (b) (1) (C).

       See OCGA § 17-10-7 (c).

       See Nash v. State, 271 Ga. 281, 284-285 (519 SE2d 893) (1999); cf. Wilbanks, supra, 251 Ga. App. at 265 (15).


author: Mikell, Judge.

text:
    A01A0964.
    OWENS v. DEKALB MEDICAL CENTER, INC. et al.
    (557 SE2d 404)
   Mikell, Judge.

Myrtie Owens fell and was injured as she attempted to exit a revolving door on the premises of DeKalb Medical Center, Inc. She sued the Medical Center and Decatur Church of Christ Senior Housing, Inc. d/b/a Christian Towers for premises liability and negligence. The trial court granted summary judgment to the Medical Center and Christian Towers. Owens appeals, claiming that issues of material fact remain with regard to her claims. We affirm as to the Medical Center and reverse as to Christian Towers.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. A defendant carries this burden by demonstrating the absence of evidence as to one essential element of plaintiff’s case. Should the defendant do so, the plaintiff “cannot rest on [her] pleadings, but rather must point to specific evidence giving rise to a triable issue.” Our review is de novo.

Viewing the evidence in the light most favorable to Owens, the record shows that Owens was an elderly resident of Christian Towers, an unassisted living facility for senior citizens. On October 27, 1997, Colleen Lazenby, an employee of Christian Towers, drove Owens and several other residents to the Medical Center for a “senior fair.” The trip took about five minutes. Owens was the only member of the Christian Towers group who used a walker.

The Medical Center provided eight volunteers in four locations to help the senior fair attendees, but did not station volunteers or employees at the exit. The exit consisted of a revolving door with two traditional doors on either side. These side doors were marked or otherwise identified as emergency exits. When the Christian Towers group prepared to leave the premises, Owens headed for one of the side doors, but Lazenby thought the side doors were locked or alarmed, although there is evidence that they were unlocked and passable for purposes of exiting the premises. Lazenby told Owens that she would have to exit through the revolving door and asked Owens to wait while she went to get the van. Owens told Lazenby that she could not go through the revolving door because she was scared. Lazenby replied she would return to help her through the door.

After Lazenby went outside to go to the van, residents began filing through the revolving door. Owens tried to follow the other residents through the revolving door with her walker, fell, and was injured. While Owens was lying on the ground, Lazenby asked her why she decided to use the revolving door, and Owens replied that she did not want to be left behind.

Liability of Medical Center

1. The basis of a proprietor’s liability to an invitee in a premises liability action is the proprietor’s superior knowledge of a hazard or condition which may subject the invitee to an unreasonable risk of harm. Although Robinson v. Kroger Co. reduced the burden on plaintiffs to show they exercised reasonable care in encountering a hazard, plaintiffs must still, in order to avoid summary judgment, establish evidence of a prima facie case by showing that a defendant’s knowledge of a hazard is greater than the plaintiff’s.

The trial court found that Owens had equal, if not superior, knowledge to the Medical Center concerning the danger of using the revolving door with her walker. Although the routine issues of premises liability are not normally subject to summary adjudication, the trial court held that the evidence was plain and palpable that the Medical Center was not liable. Owens presents a number of arguments in opposition to the trial court’s order, which we will consider in turn, but we find the trial court’s analysis to be correct.

Owens points to evidence that the Medical Center knew of previous injuries in connection with the revolving doors. The Medical Center’s risk manager testified that she was sure that people had fallen at the revolving door, although she had no independent recollection of any particular event. Owens argues that this testimony creates a jury question as to who had superior knowledge of the danger of the revolving door; but the testimony shows only that falls had occurred, and that does not indicate knowledge on the part of the Medical Center that the revolving door represented a hazard or condition other than what would be obvious to any person using the door.

There was no evidence that the revolving door was defective. If the revolving door was a hazard to Owens in particular, because she was an elderly person who used a walker, she was in the best position to judge the danger to her of using the revolving door. Owens argues that even if she had some knowledge that the revolving door was a hazard to her, whether her knowledge was superior to the Medical Center’s should be a question for the jury. She refers to Lee v. Myers, in which we found that there was a jury question with regard to the relative knowledge between the proprietor and the invitee with regard to the danger presented by the stairs on which the invitee was injured. Lee is not factually analogous, however, because evidence showed that the plaintiff fell because the stairs were not properly secured, and so a question was presented as to whether the proprietor or invitee had greater knowledge of the defect. Here, there is no evidence of a defect. The record would not support a finding that the Medical Center had superior knowledge that the revolving doors were a hazard to Owens.

Owens next argues that the Medical Center was negligent in not posting persons near the exit to point out the availability of the side doors or to assist her in traversing the revolving door. She argues that given the Medical Center’s knowledge of prior accidents at the revolving door, the “Emergency Exit” signage on the side doors, and the presence of large numbers of elderly persons at the senior fair, it was foreseeable that an elderly person would be injured without such supervision.

Owens draws our attention to a 1938 New York state decision, Schubart v. Hotel Astor, in which the evidence showed that an elderly lady was injured in a revolving door when some young men entered the door at an excessive speed, causing the door to strike her. The New York court held that a jury could find that it was the duty of the hotel to post employees at the door to supervise guests as they filed through because it was reasonably foreseeable that they would otherwise be injured. The New York court made it clear, however, that its decision was based on the peculiar facts of the incident, which occurred on a Saturday night in a very crowded hotel following a football game. “There is no doubt that the owner of an ordinary building, under ordinary circumstances, is not required to have a doorman present or to take any particular action to supervise the use or to control the operation of a revolving door. Here, however, we have neither an ordinary building nor ordinary circumstances.” Even if we find the reasoning of the New York court to be persuasive, the case is not on point. The danger to the plaintiff in Hotel Astor lay in the foreseeable misuse of the revolving door by third parties. Here, the record would support no more than that Owens’s fall was caused by the interaction between Owens and the revolving door, with no other intervening factor.

The evidence does not support a duty to supervise the revolving door because of special circumstances. Young people and elderly people routinely enter and exit from hospitals. Young people and elderly people routinely use revolving doors. The Medical Center had no reason to foresee a special danger to the visitors from Christian Towers. The Georgia cases which Owens cites to support her arguments with regard to other negligence claims are not persuasive because they concern the breach of a proprietor’s duty not actively to harm the plaintiff.

Owens next claims that, under the “constant patrol” doctrine, the Medical Center was under a duty to station an attendant at the revolving door to help the elderly through it. “[W]hile generally a constant patrol of the premises is not required, ... a constant patrol is required where there exist [ ] conditions making the premises unusually dangerous.” The constant patrol doctrine, however, pertains to a duty to protect the public from dangerous conditions that are likely to arise on a periodic basis due to the nature of operations on the premises, such as oil spills from a tire mixer, ice spills in a supermarket produce department, or trash accumulating on the floor of a fast food restaurant. In contrast, a revolving door is not a periodically recurring dangerous condition, but an apparent and static condition.

Owens next argues that when the Medical Center voluntarily undertook to provide the attendees of the senior fair with additional assistance that it did not properly discharge that undertaking in a reasonable manner. Evidence shows that the Medical Center arranged for volunteer guides at certain locations to help the senior fair attendees, but not at the exit. Although the Medical Center arranged for volunteers to assist the attendees, “[undertaking measures to protect patrons does not heighten the standard of care; and taking some measures does not ordinarily constitute evidence that further measures might be required.” Once a voluntary duty is assumed it must be carried out with reasonable care, but there is no evidence that reasonable care was not exercised by the Medical Center in providing the volunteers. There is no evidence to support a finding that the Medical Center increased any danger to the attendees by providing the assistance, nor did it mislead Owens or deprive her of possible additional help.

As part of her final argument with regard to the liability of the Medical Center, Owens notes that a plaintiff is not bound to the same degree of care in apprehending danger in moments of stress or when her attention has been necessarily diverted. Owens further shows that she was stressed and distracted by the prospect of being left behind. In premises liability cases, stress or diversion might excuse a plaintiff from noticing a hazard. But this is not a case where stress or distraction caused an invitee to overlook the nature or existence of a condition. Owens knew the risk inherent in proceeding through a revolving door while using a walker. We are unpersuaded by Owens’s argument that the evidence that she was afraid of the revolving door showed no more than an unspecified fear of doors rather than any knowledge on her part that a revolving door represented a dangerous condition to her.

As Owens cannot show a question of material fact as to whether the Medical Center had superior knowledge of the hazard alleged to have caused her injury, the Medical Center is entitled to summary judgment.

Liability of Christian Towers

2. The trial court held that Owens assumed the risk of her injury as a matter of law when she decided to leave the premises through the revolving door. We disagree, holding that questions of fact remain for a jury to resolve.

The defense of assumption of the risk of danger applies when the plaintiff, with a full appreciation of the danger involved and without restriction of his freedom of choice either by the circumstances or by coercion, deliberately chooses an obviously perilous course of conduct. A defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. . . . Whether a party assumed the risk of his injury is a jury question that should not be decided by summary adjudication unless the defense is conclusively established by plain, palpable and undisputed evidence.

Even where the facts are undisputed, it is usually for the jury to say whether the conduct in question met the standard of the reasonable person. Factors such as a plaintiff’s advanced age must be considered, and the matter should ordinarily be left as a question of fact for the jury rather than as a matter of law for the court.

Here, Christian Towers assumed the duty of transporting Owens to and from the Medical Center and was obligated to exercise ordinary care for her safety while doing so. As discussed in Division 1, the Medical Center did not undertake to aid Owens through the revolving door by stationing volunteers at the door. But Christian Towers did undertake to help Owens exit. Lazenby’s plan was to board the other residents first, instruct Owens to stay in place, and return later to help her. Whether Christian Towers failed in its duty by preventing Owens from exiting through the side door and by leaving her unattended under circumstances where she feared being left behind are issues for the jury to decide.

Decided November 27, 2001

Reconsideration denied December 14, 2001.

Adams & Adams, Charles R. Adams III, Larry E. Stewart, for appellant.

Hall, Booth, Smith & Slover, Karl M. Braun, Weissman, Nowack, Curry & Wilco, Leigh M. Wilco, Steven D. Caley, for appellees.

Christian Towers claims that Owens assumed the risk when she decided to leave the premises through the revolving door using her walker. It points to evidence showing that the residents of Christian Towers are expected to live independently and care for themselves; that Owens was lucid at the time of the incident; and that Owens did not like revolving doors and considered them dangerous. Uncontroverted evidence also shows that Lazenby assured Owens that she would help Owens through the revolving doors after returning with the van. But whether Lazenby was negligent in failing to help Owens through the door and into the van before assisting the other residents is a question for the trier of fact. Accordingly, the trial court erred in granting summary judgment to Christian Towers.

Judgment affirmed in part and reversed in part.

       OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       Id.

        Walker v. Virtual Packaging, 229 Ga. App. 124 (493 SE2d 551) (1997).

        Gray v. Oliver, 242 Ga. App. 533 (530 SE2d 241) (2000).

       268 Ga. 735, 747-748 (2) (b) (493 SE2d 403) (1997).

        Gray, supra, 242 Ga. App. at 534-535 (1).

       189 Ga. App. 87 (374 SE2d 797) (1988).

       168 Misc. 431 (5 NYS2d 203), aff’d, 255 A.D. 1012 (8 NYS2d 567) (1938).

        Hotel Astor, supra, 168 Misc. at 434.

       Christian Towers argues that there is no evidence that going through the revolving doors caused Owens to fall. Because of our other findings we need not address this argument.

        Lipham v. Federated Dept. Stores, 263 Ga. 865 (440 SE2d 193) (1994) (proprietor’s employee knocked plaintiff to the ground); Wade v. Mitchell, 206 Ga. App. 265 (424 SE2d 810) (1992) (plaintiff was injured when proprietor’s employee inflated a tire, which then exploded); Johnson v. Kimberly Clark, 233 Ga. App. 508 (504 SE2d 536) (1998) (metal poles dangerously stacked).

        Gill v. Cooper Tire &c. Co., 231 Ga. App. 482, 485 (3) (499 SE2d 85) (1998).

       Id.

        Shepard v. Winn Dixie Stores, 241 Ga. App. 746, 748-749 (527 SE2d 36) (1999).

        Jones v. Krystal Co., 231 Ga. App. 102, 104-105 (498 SE2d 565) (1998).

        Lau’s Corp., supra, 261 Ga. at 494-495 (3).

       Id.

        Hamilton v. Kentucky Fried Chicken &c., 248 Ga. App. 245 (545 SE2d 375) (2001).

       (Citations and punctuation omitted.) Rubin v. Cello Corp., 235 Ga. App. 250, 252 (1) (b) (510 SE2d 541) (1998).

        James v. Sears, Roebuck & Co., 140 Ga. App. 859 (232 SE2d 274) (1976).

        Harvey Freeman & Sons, Inc. v. Stanley, 259 Ga. 233, 235 (3) (378 SE2d 857) (1989) (assumption of risk/avoidance of danger held jury issue based on plaintiffs’ youth and inexperience).

        Lau’s Corp., supra, 261 Ga. at 494-495 (3); Atlanta Center v. Cox, 178 Ga. App. 184 (341 SE2d 15) (1986) (physical precedent only); Mixon v. Dobbs Houses, Inc., 149 Ga. App. 481 (254 SE2d 864) (1979).

       See Pye v. Taylor & Bird, Inc., 216 Ga. App. 814, 815 (456 SE2d 63) (1995) (“the primary business purpose of a nursing home is to take care of residents who, because of age, infirmity or some ailment, are no longer able to take care of themselves”).


author: Pope, Presiding Judge. Blackburn, Chief Judge,

text:
    A01A1202.
    CHAMBERS v. GWINNETT COMMUNITY HOSPITAL, INC. et al.
    (557 SE2d 412)
   Pope, Presiding Judge.

Wenonah Chambers fell down a flight of stairs and was injured. The 75-year-old Chambers was treated at the Gwinnett Community Hospital, Inc. emergency room by Dr. Kamlesh Gandhi and released. After going home, Chambers suffered a subdural hematoma and lapsed into a coma; she regained consciousness, but was left blind and unable to walk. Chambers brought a medical malpractice action against the Hospital and Dr. Gandhi. The trial court granted summary judgment to the Hospital and the case against Dr. Gandhi went to trial, resulting in a defense verdict. Chambers now appeals. We find her enumerations of error without merit and affirm.

1. Chambers claims the trial court erred in excluding evidence that two defense experts were also policyholders in MAG Mutual Insurance Company. Chambers argues that, because Gandhi was also insured by MAG Mutual, the defense experts had a financial interest in the outcome of the case. Admission of evidence is “committed to the sound discretion of the trial court, whose determination shall not be disturbed on appeal unless it amounts to an abuse of discretion.” (Punctuation omitted.) Cooper Tire &c. Co. v. Crosby, 273 Ga. 454, 457 (2) (543 SE2d 21) (2001).

We agree with Chambers that, as a general principle, the jury is entitled to consider a witness’s financial interest in a case. See OCGA § 24-4-4; Jordan v. Fowler, 104 Ga. App. 824, 828-829 (5) (123 SE2d 334) (1961). However, it is also settled law that evidence of a litigant’s insurance is generally inadmissible. See Goins v. Glisson, 163 Ga. App. 290, 292 (1) (292 SE2d 917) (1982). As our Supreme Court has recognized, the concern is that introducing evidence of a defendant’s insurer could motivate a jury to award increased damages. Denton v. Con-Way Southern Express, 261 Ga. 41, 42, n. 2 (402 SE2d 269) (1991). And although jurors could well surmise that a doctor has malpractice insurance, “the introduction of [the] evidence . . . tends to emphasize something that is usually irrelevant and that may have an adverse effect on the quality of the jury’s deliberations and conclusions.” Barsema v. Susong, 156 Ariz. 309, 313 (3) (751 P2d 969) (1988).

Chambers can only demonstrate the financial interest in the case of these expert witnesses by showing that any judgment would be paid by Dr. Gandhi’s insurer. But this Court has held that a financial interest of a witness in a defendant’s liability insurer is not “so much more material than prejudicial as to warrant admitting it in evidence.” Conley v. Gallup, 213 Ga. App. 487, 488 (445 SE2d 275) (1994). Chambers argues that Conley is distinguishable because it does not expressly involve a “mutual” insurance policy. We recognize that in a mutual insurer “each policy-holder looks for indemnity against loss to the payments of each of the other policy-holders,” Carlton v. Southern Mut. Ins. Co., 72 Ga. 371, 389 (1884), but there was no showing that Chambers’s experts had more than an inchoate and financially insignificant interest in the outcome of this particular case.

For example, there was no proffer as to the extent of any contingent liability of the members of MAG Mutual. Georgia law recognizes two types of mutual insurance policies. Under one type the members are liable pro rata for the discharge of the mutual company’s obligations. OCGA § 33-14-68. But under the second type of policy, a nonassessable policy, the mutual insurance company may eliminate all the contingent liability of its members. OCGA § 33-14-71. The record is silent as to what kind of mutual insurance policy exists in this case. Therefore, Chambers has not established that the experts had anything more than a de minimis financial interest at stake.

We find there must be a showing of a more substantial financial interest to warrant the introduction of evidence that Dr. Gandhi and the experts share the same insurance company. Most states have adopted a “substantial connection” test to determine when evidence of common liability coverage is permissible. “Under [this] test, a plaintiff must be able to establish that an expert has more connection to a defendant’s insurer than that of [a] policyholder, or[,] in the case of a mutual insurance company, membership.” Mills v. Grotheer, 957 P2d 540, 543 (Okla. 1998). As one court noted, the connection of merely having a common insurance carrier is too attenuated to outweigh the potential prejudice from the admission of such evidence:

We recognize policyholders in a mutual insurance company have, by its very nature, a greater financial stake in the company than do policyholders in other types of insurance companies. Virtually every jurisdiction has nevertheless concluded mere policyholder status represents too attenuated a “connection” with an insurance company, mutual or otherwise, for the probative value of such evidence to outweigh the potential prejudice to the jury’s deliberations.

(Citations omitted.) Warren v. Jackson, 125 N.C. App. 96, 101 (479 SE2d 278) (1997). See also Otwell v. Bryant, 497 S2d 111, 115 (Ala. 1986) (the overwhelming prejudicial effect of allowing insurance evidence must be balanced against the “virtually non-existent” potential for bias from an expert’s coverage under a professional liability policy).

Courts employing the substantial connection test have admitted insurance evidence where a witness has a significant connection, other than merely holding a policy, with the defendant’s insurer. Lombard v. Rohrbaugh, 262 Va. 484 (551 SE2d 349) (2001) (evidence of expert’s employment relationship with defendant’s insurer admissible); Yoho v. Thompson, 345 S.C. 361, 366 (548 SE2d 584) (2001) (evidence that expert maintained an employment relationship with defendant’s insurer admissible); Bonser v. Shainholtz, 3 P3d 422, 426 (Colo. 2000) (evidence admissible that expert was founder of trust insuring defendant, trust had only 1,500 members and adverse verdiet could substantially affect expert’s premiums); Barsema, 156 Ariz. at 314 (evidence expert was vice president and on board of directors of insurance company admissible). This approach comports with our decision in Pavamani v. Cole, 215 Ga. App. 594 (1) (451 SE2d 795) (1994), where we held that a party could cross-examine an opposing expert regarding his affiliation with a rival insurance company, where the expert was on the board of directors and several committees of that company.

Chambers directs our attention to authority in one jurisdiction holding that where an expert witness and the defendant share an interest in a mutual insurance company, such an interest is admissible. See Ede v. Atrium South OB-GYN, 71 Ohio St.3d 124, 128 (642 NE2d 365) (1994). But as the dissent acknowledges, this opinion reflects the minority view among the many states to have considered the issue.

We believe that Georgia law is in accord with the majority rule and the substantial connection test. Based upon our analysis of the applicable law and the facts of this case, we find that a party must demonstrate a more substantial connection than simply a common mutual insurance carrier to overcome the potentially prejudicial effect of introducing evidence of a defendant’s insurance. Here, the evidence that the defendant’s experts were merely insured by MAG Mutual was not more probative than prejudicial. See Thomas v. Newnan Hosp., 185 Ga. App. 764, 766-767 (1) (365 SE2d 859) (1988). Accordingly, we find no manifest abuse of discretion by the trial court in excluding such evidence.

2. Chambers claims the trial court erred in refusing to allow Chámbers’s medical expert, Dr. Freedman, to testify as to whether a physician attending Chambers should have measured her prothombin time (“pro-time”), which tests the tendency of a patient’s blood to clot. We disagree. Whether a witness has the experience necessary to testify as to what the standard of care requires under a particular set of circumstances is a matter within the sound discretion of the trial court, and such discretion will not be disturbed unless manifestly abused. McDonald v. Glynn-Brunswick Mem. Hosp., 204 Ga. App. 7 (418 SE2d 393) (1992).

Dr. Freedman was cross-examined outside the presence of the jury:

Q: Are you familiar with the standard of care applicable to the treatment that Mrs. Chambers received in presenting to an emergency room, not to a hematologist, not to some other specialty, but in an emergency room setting? Can you testify what the standard of care is in that setting?
A: No, I cannot.

The trial court was authorized based upon this testimony to find that Dr. Freedman was not qualified to opine that the standard of care of an emergency room physician like Dr. Gandhi required the taking of Chambers’s pro-time.

But even if the trial court erred in so ruling, no reversal was warranted. Dr. Freedman was allowed to testify concerning the importance of taking a pro-time, and another defense witness testified that the standard of care required Dr. Gandhi to obtain a pro-time. Error in excluding evidence is harmless where essentially the same evidence has been admitted and considered by the jury. Platt v. Nat. Gen. Ins. Co., 205 Ga. App. 705, 710 (1) (c) (423 SE2d 387) (1992).

3. Chambers claims the trial court erred in admitting evidence of care given to Chambers after two previous falls. She argues that the actions of the two other doctors in treating Chambers are irrelevant to the issue of Dr. Gandhi’s negligence in treating Chambers. Relevant evidence includes acts or circumstances which serve “to elucidate or throw light upon a material issue.” Dept. of Transp. v. Delta Machine Products Co., 157 Ga. App. 423, 426 (2) (278 SE2d 73) (1981). We find no abuse of discretion as evidence of Chambers’s previous medical treatment could shed light upon the question of whether the applicable standard of care required the taking of the pro-time of elderly patients who have suffered injuries in a fall.

4. Chambers claims the trial court erred in failing to sustain her counsel’s objections to a nonresponsive answer by expert witness Dr. Hartman. We have reviewed the testimony and find it responsive, if meandering. The trial court did not err in allowing it.

5. Chambers claims the trial court erred in granting the Hospital’s motion for summary judgment. Because we have found that the judgment for Dr. Gandhi must be affirmed, and because Chambers alleges no independent negligence on the part of the Hospital, but bases her claim on the theories of respondeat superior and apparent agency, a judgment against the Hospital is not sustainable. Whether the trial court erred in granting summary judgment to the Hospital is therefore moot. “Nothing . . . shall require the appellate court to pass upon questions which are rendered moot.” OCGA § 5-6-34 (d).

Chambers argues that because under Wickliffe v. Wickliffe Co., 227 Ga. App. 432, 434 (1) (489 SE2d 153) (1997), collateral estoppel requires identity of parties, the defense verdict for Dr. Gandhi does not preclude Chambers from proceeding against the Hospital should we reverse the trial court’s grant of summary judgment. She asserts that this is true even if the Hospital’s liability remains dependent on a finding that Dr. Gandhi was negligent. But however narrowly Wickliffe may restrict the doctrine of collateral estoppel, that case involved separate, “collateral” actions. Chambers filed this action against both the Hospital and Dr. Gandhi, and now that a jury has found for Dr. Gandhi, she cannot relitigate the issue of his negligence in the same action.

Chambers is also precluded from proceeding against the Hospital by principles applicable to her claims of respondeat superior and apparent agency. Under such claims, a decision in favor of the agent or servant precludes recovery against the master or employer:

The rule that where the liability of the master to a third person is purely derivative and dependent entirely upon the principle of respondeat superior, a judgment on the merits in favor of the agent or servant is res judicata in favor of the principal or master, though he was not a party to the action, is an exemplification of the broader rule by which one whose liability is wholly derivative may claim the benefit of a judgment in favor of the person from whom his liability is derived.

(Citations and punctuation omitted.) Porterfield v. Gilmer, 132 Ga. App. 463, 465 (208 SE2d 295) (1974).

Judgment affirmed.

Andrews, P. J., Miller and Mikell, JJ., concur. Blackburn, C. J., Ruffin and Eldridge, JJ., dissent.

Blackburn, Chief Judge,

dissenting.

Because I believe that the trial court erred by excluding evidence that two defense experts had financial interests in the outcome of the case as policyholders in defendant’s liability carrier, a mutual insurance company, I respectfully dissent.

In this medical malpractice action, Wenonah Chambers brought suit against Gwinnett Community Hospital, Inc. and Dr. Kamlesh Gandhi for the misdiagnosis of a subdural hematoma in her brain. During the ensuing trial, Gandhi called Dr. Joseph Brantwain and Dr. Cassandra Evans as expert witnesses to testify on his behalf. Gandhi, Brantwain, and Evans were all insured at the time by MAG Mutual Insurance Company. On cross-examination, the plaintiff wished to disclose the witnesses’ financial interest in the outcome of the case to the jury. The trial court ruled that she could not do so, as it would inject the fact of insurance into the trial. This ruling was erroneous under the facts of this case.

The defense witnesses’ financial interest in the case, based upon their also being an insured with defendant’s liability carrier, a mutual insurance company, triggers two competing rules of evidence. The first, OCGA § 24-4-4, provides: “In determining where the preponderance of the evidence lies, the jury may consider . . . the witnesses’ . . . interest or want of interest.” The second, a common law rule, provides that, in general, evidence of a litigant’s insurance is inadmissible. Goins v. Glisson. In light of these competing principles, the ultimate consideration concerns whether the evidence regarding insurance is of such a material nature as to outweigh any prejudicial value it may have in any given case. Conley v. Gallup.

With a mutual insurance company like MAG Mutual, “each policy-holder looks for indemnity against loss to the payments of each of the other policy-holders.” Carlton v. Southern Mut. Ins. Co. Unlike policyholders in nonmutual insurance companies, a policyholder in a mutual insurance company has a significant financial stake in the company itself, and, due to the nature of mutual insurance, each policyholder would have a direct financial interest in the outcome of litigation brought against any other policyholder.

A mutual insurance company is one that does not issue capital stock, so that “the policyholder has an interest in the assets of the company, usually realized by the way of dividends reducing the policy premium.” Weatherbee v. Hutcheson. See also Patterson v. Lauderback, overruled on other grounds, Warren v. Ballard, Black’s Law Dictionary (6th ed.), p. 1021. However, these policyholders also may be liable for any judgment against the insurance company. Patterson v. Lauderback, supra.

Wallace v. Swift Spinning Mills.

Because Gandhi’s expert witnesses had a vested interest in the outcome of litigation against their fellow policyholder, the trial court should have allowed Chambers to inform the jury of this financial interest. Under Georgia law, we have previously determined that being a policyholder in a mutual insurance company creates a financial interest in common with any other policyholder in such company. See Swift Spinning Mills, supra.

Recognition of the special impartiality problems raised by the nature of mutual insurance is not new to Georgia jurisprudence. We have held that “|j]ury panelists with a relationship to an insurance company that has a demonstrable, direct financial interest as an insurer in the case, such as . . . policyholders of mutual insurance companies . . . may not be impartial and should be removed from the panel for cause.” (Footnote omitted.) Swift Spinning Mills, supra at 614 (1). Based on the same rationale, defense experts who are policyholders in the mutual insurance company insuring a defendant may not be impartial, and if they testify, the disclosure of their financial interest should not be barred.

We note that the defendant freely chose these experts with knowledge of their financial interest. Indeed, their financial interest might well have been a factor in their selection. These witnesses were opinion witnesses, not treating physicians or fact witnesses, and defendant could have selected disinterested experts. Plaintiffs general right to disclose the bias of a witness should not be affected by defendant’s voluntary decision to select expert witnesses with a financial interest in the outcome of the case. This is so for the same reason that mutual policyholders would be excused for cause from any jury which would try the case. The reality in this case is that facts bearing on the credibility of the experts who testified on Gandhi’s behalf were kept from the jury. Any prejudicial effect that the disclosure of the witnesses’ interest might have was the result of defendant’s choice of witnesses, and the materiality of this interest outweighs any prejudice that defendant has elected to inject into the trial.

General arguments that evidence of insurance coverage would unfairly prejudice the jury do not apply to freely selected expert witnesses who have a financial interest in the outcome of the case.

[T]he trial court erred by grossly overestimating to what extent testimony that [Gandhi] was insured would prejudice the jury. . . . [Testimony regarding insurance is not always prejudicial. However, too often courts have a Pavlovian response to insurance testimony — immediately assuming prejudice. It is naive to believe that today’s jurors, bombarded for years with information about health care insurance, do not already assume in a malpractice case that the defendant doctor is covered by insurance. The legal charade protecting juries from information they already know keeps hidden from them relevant information that could assist them in making their determinations. Our Rules of Evidence are designed with truth and fairness in mind; they do not require that courts should be blind to reality.

Ede v. Atrium South OB-GYN.

The majority’s reliance on Conley v. Gallup, supra, for its determination that the financial interest of the defense experts need not be disclosed, is misplaced, as such case is not binding here. A reading of that opinion reveals that although MAG Mutual was involved, the court based its opinion on the general common law exclusion of insurance. That case did not address the insurance issue as it applies to mutual insurance, and, as such, it does not control the issue in this case. We note that cases from other jurisdictions are persuasive authority only and do not bind this court. While the majority opinion reflects the view of a majority of other jurisdictions, it is inconsistent with Georgia case law. Under current Georgia law, a witness would be struck from a jury for cause, because of his financial interest in the case, but could, under the majority’s holding, testify before a jury without the disclosure thereof. The position outlined in this dissent would not allow such an incongruent result.

Decided November 28, 2001

Reconsideration denied December 14, 2001

Joseph H. King, Jr., for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Earl W. Gunn, Ashley P. Nichols, Christopher H. Smith, Owen, Gleaton, Egan, Jones & Sweeney, Rolfe M. Martin, Amy J. Kolczak, for appellees.

Love, Willingham, Peters, Gilleland & Monyak, Robert P. Monyak, Ashley R. House, Mark L. Stuckey, amici curiae.

The majority points out that the record is silent as to whether the mutual insurance policy in this case is assessable or nonassessable, and it contends that the record contains insufficient evidence regarding the expert witnesses’ financial interest in the outcome of Chambers’ case. These deficiencies in the record result from the trial court’s decision not to review the policy.

During the hearing regarding the experts’ possible bias, the trial court stated that it might favor admissibility if it had more information regarding the experts’ potential liability. Then, when Chambers offered to gather such evidence, the trial court refused, deciding instead to rule against admissibility without further fact gathering. While the trial court recognized the need to review the policy, it elected to rule without such review. Under these circumstances, the failure of the court to review the policy, at best, supports a remand of this case for further hearings. It also makes it clear that an affirmance of the trial court’s ruling is inappropriate.

I would reverse the trial court’s ruling.

I am authorized to state that Judge Ruffin and Judge Eldridge join in this dissent.

       See, e.g., Yoho v. Thompson, 345 S.C. 361, 366 (548 SE2d 584) (2001); Bonser v. Shainholtz, 3 P3d 422, 426 (Colo. 2000); Mills v. Grotheer, 957 P2d 540, 543 (Okla. 1998); Warren v. Jackson, 125 N.C. App. 96 (479 SE2d 278) (1997); Otwell v. Bryant, 497 S2d 111, 116 (Ala. 1986); Mendoza v. Varon, 563 SW2d 646, 649 (Tex. App. 1978).

        Goins v. Glisson, 163 Ga. App. 290, 292 (1) (292 SE2d 917) (1982).

        Conley v. Gallup, 213 Ga. App. 487 (445 SE2d 275) (1994).

        Carlton v. Southern Mut. Ins. Co., 72 Ga. 371, 389 (1884).

        Weatherbee v. Hutcheson, 114 Ga. App. 761, 765 (1) (a) (152 SE2d 715) (1966).

        Patterson v. Lauderback, 211 Ga. App. 891, 895 (3) (440 SE2d 673) (1994).

        Warren v. Ballard, 266 Ga. 408, 410 (467 SE2d 891) (1996).

        Wallace v. Swift Spinning Mills, 236 Ga. App. 613, 614 (1), n. 2 (511 SE2d 904) (1999).

        Ede a Atrium South OB-GYN, 71 Ohio St.3d 124, 127 (642 NE2d 365) (1994).