text:
    A00A1504.
    McCORKLE v. THE STATE.
    (538 SE2d 161)
   Miller, Judge.

Cedric McCorkle was tried for two counts of aggravated child molestation. He was convicted on the first count but acquitted on the second. Following the denial of his amended motion for new trial, he filed this appeal in which he claims that the evidence was insufficient to sustain the conviction and asserts that he was denied the right to a fair and impartial jury. Having examined both issues and finding no merit to either, we affirm.

On appeal, the evidence must be viewed in a light most favorable to the verdict and McCorkle no longer enjoys the presumption of innocence. When so viewed, the evidence established that a licensed day-care provider, Tamanika Oda, befriended McCorkle, a restaurant co-worker, and allowed him to stay at her home in which she operated a day-care business. Oda testified that one afternoon she put four children down for their naps and then proceeded to take a shower. When she returned to the bedroom, the victim was lying on the bed and McCorkle was patting her on her back. The victim, almost four years old, cried out to Oda, “He’s killing me, he’s killing me.” When Oda asked her what she meant, the child, visibly upset, looked at McCorkle and did not respond. Oda asked McCorkle to leave the room and questioned the child further. The child appeared to Oda to be upset and was crying and “huffing and puffing.” The victim told Oda that McCorkle made her “put his wee-wee in her mouth.” Upon further questioning, Oda determined that by “wee-wee,” the child meant penis. When Oda then asked McCorkle to explain why the child would say something like that, McCorkle said all he did was fix her a sandwich.

Oda returned to the child and asked to be told exactly what had happened. The child told Oda that when she had gone downstairs to play, he “wanted to make a deal” and “put his wee-wee in her mouth.” After Oda confronted McCorkle yet again, he left Oda’s house taking most of his belongings with him.

On that same afternoon, as the victim’s mother was buckling her daughter’s seat belt, the victim suddenly blurted out, “Mommy, Cedric . . . put his wee-wee in my mouth.” Infuriated, her mother proceeded to the restaurant to confront Oda. When she demanded to know why Oda had not contacted her, Oda said she had been scared. After the victim’s mother contacted police, McCorkle, a dishwasher at the restaurant, was arrested that same evening.

Detective Paul Warner, an expert interviewer who had conducted nearly 1,000 interviews of child victims over a span of 14 years, met with the victim. On the same day the allegations of sexual abuse surfaced, Warner videotaped his interview of the victim, in which she confirmed the essential details of the crime. According to Warner, the child appeared “extremely upset.” The jury was shown the videotape. At trial, the victim recounted a consistent description of the incident and reiterated the main details.

1. Claiming that he “presented a strong defense,” McCorkle contends that the evidence was insufficient to sustain the conviction. He asserts that his own testimony “was equally plausible” and more consistent than that of the victim and argues that other persons “could have committed the offense.”

Assessing witness credibility and resolving conflicts in trial testimony are matters strictly within the purview of a jury. McCorkle, in essence, seeks a reweighing of the evidence. This we cannot do. The child’s in-court testimony and the testimony confirming that she told her mother, her babysitter, and a detective that McCorkle put his “wee-wee” in her mouth and asked her to suck it were sufficient to establish the elements of aggravated child molestation. Having considered the evidence in the light most favorable to the jury’s verdict, we find ample evidence from which any rational trier of fact could have found McCorkle guilty beyond a reasonable doubt of aggravated child molestation as set forth in OCGA § 16-6-4 (c).

2. McCorkle contends that he was denied his right to a fair trial because one juror, L. R, was biased against him. He claims that while this juror claimed during voir dire she could be fair and impartial, she later told other jurors that he was guilty.

As a general rule, the testimony of jurors may be taken to sustain but not to impeach a verdict. Exceptions may occur when “extrajudicial and prejudicial information has been brought to the jury’s attention improperly, or where non-jurors have interfered with the jury’s deliberations.” OCGA § 17-9-41 effectively precludes jurors from engaging in post-trial attacks on their verdict on the basis of statements uttered to one another inside the jury room. Specifically, the rule precludes a juror from testifying that issues in the case were prejudged, or that a juror was motivated by irrelevant or improper personal considerations, or that racial or ethnic prejudice played a role injury deliberations. Because McCorkle’s claims of bias are similar and do not fall into any exception, the general rule precludes this effort to attack the verdict.

Decided August 9, 2000.

Julie D. Herrin, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Sheila A. Connors, Assistant District Attorneys, for appellee.

McCorkle also insinuated that L. P. may have been a personal acquaintance of the assistant prosecutor whom L. P. hugged shortly after the court dismissed the jurors from their service. But the assistant prosecutor testified that she had never before met the juror, and no evidence proved otherwise.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Lawrence v. State, 238 Ga. App. 102 (517 SE2d 822) (1999).

        Dismuke v. State, 261 Ga. 254 (1) (403 SE2d 812) (1991).

        Blackwell v. State, 229 Ga. App. 452, 455 (3) (494 SE2d 269) (1997).

         Castro v. State, 241 Ga. App. 546, 548 (1) (527 SE2d 12) (1999); Jones v. State, 234 Ga. App. 571, 572 (1) (507 SE2d 804) (1998).

       OCGA § 17-9-41.

        Spencer v. State, 260 Ga. 640, 643 (3) (398 SE2d 179) (1990).

        Watkins v. State, 237 Ga. 678, 685 (229 SE2d 465) (1976) (juror misconduct occurred when members of the jury intentionally gathered highly prejudicial, extrajudicial evidence, and communicated their findings to other jurors).

        Spencer, supra, 260 Ga. at 643 (3).

       See Gardiner v. State, 264 Ga. 329, 332 (2) (444 SE2d 300) (1994); Moore v. State, 224 Ga. App. 797, 801 (6) (481 SE2d 892) (1997).

       Compare Baker v. State, 230 Ga. App. 813, 816 (4) (498 SE2d 290) (1998) (friendly personal exchange between prosecutor and member of jury that occurred during trial raised issue of prosecutorial misconduct and necessitated curative measures).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A00A1742.
    DAVIS v. THE STATE.
    (538 SE2d 159)
   Eldridge, Judge.

A Ware County jury convicted Tyrone Davis of three times selling cocaine in violation of the Georgia Controlled Substances Act and on a fourth occasion of trafficking in cocaine. The superior court sentenced the defendant concurrently to 30 years to serve consecutive to the sentence he was then serving upon revocation of parole. Defendant appeals from the superior court’s order denying his motion for new trial, arguing that the superior court erred in admitting his confession as made upon hope of benefit or fear of injury and in violation of his right against self-incrimination and right to counsel under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

The record reflects that the superior court conducted a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), to determine if defendant’s confession had been voluntarily given. The interrogating officer testified that he interviewed the defendant after his arrest; that he did so first by reading the defendant his Miranda rights as set out on the standard waiver of counsel form followed by having the defendant read them himself; that defendant thereafter indicated he understood his rights and signed the waiver of counsel form; that defendant did not appear to be under the influence of alcohol or drugs upon being interviewed; and that he did not threaten, promise, or deprive defendant of food, water, sleep, or other necessity in getting his statement.

On appeal, as he did at trial through counsel, defendant claims he invoked the Miranda right to remain silent and right to counsel by telling the interrogating officer, “I don’t want to talk to you anymore!,]” and by using the word “lawyer” during the interview. There is only evidence to the contrary in the record. Pertinently, defendant’s interrogating officer testified that rather than expressing a desire not to talk to him, defendant stated that “I don’t want to talk to you in front of the [undercover agent].” In a like manner, the videotape made of defendant’s confession showed , that instead of asking for a lawyer, defendant said only, “If I get a lawyer and fight this thing” or words to that effect.

Neither did defendant make the statement of which he complains involuntarily upon a hope of benefit or fear of injury in violation of OCGA § 24-3-50. The transcript of defendant’s suppression hearing reveals that the interrogating officer told him he was in big trouble; that the offense of trafficking was punishable by 20 years confinement; and, in effect, that he could help the defendant if he cooperated. However, that the interrogating officer told the defendant he was in trouble is in the nature of a mere truism, rather than an offer of hope of benefit or threat of injury. See Sampson v. State, 165 Ga. App. 833, 835 (9) (303 SE2d 77) (1983); Copeland v. State, 162 Ga. App. 398, 400 (3) (291 SE2d 560) (1982). The interrogating officer did not threaten defendant with harm in advising him that trafficking in cocaine involved the possibility of a significant sentence to confinement. Rather, this simply made the defendant aware of potential legal consequences associated therewith. Carswell v. State, 268 Ga. 531, 532-533 (2) (491 SE2d 343) (1997). Finally, an investigator does not make an offer of hope of benefit upon telling a defendant that his or her cooperation will be made known to the prosecution, Leigh v. State, 223 Ga. App. 726, 727 (1) (478 SE2d 905) (1996); Lawrence v. State, 227 Ga. App. 70, 72-73 (5) (487 SE2d 608) (1997), or by offering help to the defendant. Cooper v. State, 256 Ga. 234, 235 (2) (347 SE2d 553) (1986) (The “slightest hope of benefit” means the hope of a lighter sentence.). “Once Miranda warnings are given and a person in custody gives a statement to police without invoking his right to remain silent and without requesting an attorney, he has in effect waived his rights.” Aldridge v. State, 258 Ga. 75, 76 (3) (365 SE2d 111) (1988). No evidence of record shows that the defendant’s confession was taken in violation of his Miranda rights or that it was taken in violation of OCGA § 24-3-50. Determinations of fact and credibility made by a trial judge after a suppression hearing are accepted by appellate courts unless clearly erroneous. Cox v. State, 248 Ga. 713 (1) (285 SE2d 687) (1982). Here we are unable to say that the superior court clearly erred in admitting defendant’s confession as involuntarily taken. Murphy v. State, 267 Ga. 100, 102 (7) (475 SE2d 590) (1996). Consequently, we will not disturb its admission in evidence on appeal.

Decided August 9, 2000.

Edward F. Smith, for appellant.

Richard E. Currie, District Attorney, James D. Lamb, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       Instead of offering defendant’s videotaped confession in evidence at trial, trial counsel chose only to watch it as the State’s attorney played the tape to the jury for purposes of impeachment.

       “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.


author: Johnson, Chief Judge.

text:
    A00A1047.
    HOLLOWAY v. THE STATE.
    (537 SE2d 708)
   Johnson, Chief Judge.

Michael Holloway appeals from his convictions for aggravated assault and armed robbery. The crimes, involving two different victims, occurred on the same day and in the same area. Holloway alleges the evidence was insufficient to support the jury verdict, that he was denied effective assistance of counsel, and that the trial court erred in failing to suppress statements allegedly made by him.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that the victim of the aggravated assault was returning to his van after making a bank deposit when Holloway approached him and asked if he had dropped a phone card. The victim responded that he did not drop a phone card and started to get in the van when Holloway attacked him with a stun gun. The victim escaped, and Holloway walked into a wooded area behind the bank. When shown a photographic lineup, the victim identified Holloway as his attacker.

The victim of the armed robbery testified that she cashed a check at the same bank on the same day and drove into the parking lot of a pharmacy located directly across the street from the bank. As she walked from her car to the pharmacy, she was approached by a white male who pulled a pistol, told her it was a robbery, and forced her to return to her car. The victim took $200 from her purse and gave it to the robber, who then walked away on a dirt road behind the pharmacy. The victim was unable to identify the robber.

A clerk at the pharmacy saw a man pull into the parking lot in a car, get out, lean against his car, and look across the street toward the bank. She became suspicious when the man did not enter the pharmacy building or the insurance company next door. She wrote down the car’s tag number. She then saw the man walk toward the bank, lean against a truck in the bank parking lot, return to his car, and drive off. Holloway’s palm print was found on the truck in the area described by the clerk. A few minutes later, she saw the woman who was the victim of the armed robbery drive into the pharmacy parking lot. She observed the same man talking with this woman, saw him lean into her car, stand back up with money in his hand, and then walk away. The clerk yelled at the man to stop bothering customers, and he ran. The clerk then learned that the woman had been robbed.

The clerk gave police a detailed description of the robber’s physical features and clothing, but later was unable to identify him. However, the tag number she had taken down was registered to Holloway.

1. Holloway first contends the evidence was insufficient to support his conviction of aggravated assault because there is a substantial likelihood that the first victim misidentified him. However, the evidence clearly shows that the first victim positively identified Holloway as his attacker. Any questions regarding the victim’s credibility, including the accuracy of his identification, were questions of fact for the jury to resolve, not this Court. Applying the standard announced in Jackson v. Virginia, the evidence was sufficient for a rational trier of fact to find Holloway guilty beyond a reasonable doubt of the aggravated assault on the first victim.

Holloway also contends the evidence was insufficient to support his conviction for armed robbery of the second victim because, he claims, neither the second victim nor the pharmacy clerk identified him as the assailant, and there was no direct evidence linking him to the crime. However, there was overwhelming direct and circumstantial evidence linking Holloway to the crime, including the clerk’s testimony, the victim’s testimony, the tag number taken down by the clerk, and the palm print found on the truck where the assailant leaned. Moreover, an investigator testified that Holloway told him, upon being arrested, “he [knew] how he got caught; that the lady at the pharmacy got his tag number.” This evidence was sufficient to justify Holloway’s conviction for armed robbery.

2. Holloway contends he was denied effective assistance of counsel. The record shows that trial counsel in the present case has been an attorney for 13 years, has handled over 1,000 felony cases, and has conducted between 70-80 trials. The trial court, based on the record, arguments of counsel, arid the law, found Holloway’s trial counsel “to have rendered effective assistance of counsel in his representation of his client at trial.” A trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. We find no such error in the present case.

(a) In his original appellate brief, Holloway’s sole argument regarding ineffectiveness of counsel consists of his trial counsel’s failure to contact and interview several alibi witnesses. At the hearing on Holloway’s motion for new trial, trial counsel testified that he was given the name of one alibi witness, Holloway’s girlfriend, but elected not to call her after extensively conferring with her because she had no direct recollection about the events. Trial counsel denied he was given the name of any other alibi witness. Holloway failed to produce any uf these alleged alibi witnesses and failed to make any showing of the substance of the testimony of any uncalled witness. Without any such evidence in the record, it is impossible for this Court to conclude that any witnesses who were not called would have given testimony favorable to Holloway and that the result of the proceedings would have been affected.

(b) In his supplemental brief, a verbatim typed version of a handwritten brief prepared by Holloway and filed at his express request, Holloway states another 11 allegations supporting his claim of ineffective assistance of counsel. This brief was filed nearly two months after the state’s brief was filed, and it raises arguments not raised in Holloway’s original brief; thus, it does not satisfy the requirements of a reply brief. Moreover, since Holloway failed to request leave of this Court to file a supplemental brief, the brief does not satisfy the requirements of Court of Appeals Rule 24. We have nonetheless reviewed the additional arguments regarding ineffective assistance of counsel and have determined that Holloway’s argumerits lack merit.

Holloway’s arguments that trial counsel failed to adequately investigate and prepare for trial and failed to “meet the case of prosecution” are belied by the transcript of his motion for new trial hearing and the trial transcript. Trial counsel testified that he “spent a lot of time” reading the discovery material and that the preliminary hearing showed the strength of the evidence against Holloway. Trial counsel testified that he felt he was prepared: “I knew what all the testimony was going to be, and I had reviewed the discovery, and I had, you know, I just didn’t think there was anywhere to go with the case.” He “practically begged” Holloway to take a favorable plea offer since the evidence was so strong and Holloway was in such jeopardy with the “two strikes and you’re out” law. Nonetheless, the trial transcript shows that trial counsel presented an adequate defense given the facts of the case.

As for Holloway’s conclusory statement that trial counsel “was completely unaware of Investigator K. Lynch,” Holloway has failed to provide any evidence supporting this allegation, and trial counsel stated he read the discovery material and knew what all the testimony was going to be.

Holloway’s argument that trial counsel failed to obtain exculpatory material is likewise unsupported by any showing of how Holloway’s medical records would have provided exculpatory evidence and would have affected the result of the proceedings.

Holloway also asserts that trial counsel was ineffective for failing to object “at many junctures.” However his supplemental brief only states one question to which trial counsel failed to object. This question is not referenced by a citation to the record, and we are not obligated to cull the record to look for error. In addition, Holloway does not indicate how the question was improper or prejudicial.

Holloway’s argument that trial counsel was ineffective for failing to request a charge on a stun gun also lacks merit. Holloway does not provide this Court with any indication regarding what the jury should have been charged or a showing that such a charge was warranted and that such a charge would have affected the outcome of the trial.

Holloway’s argument regarding trial counsel’s erroneous introduction of an exhibit is unsupported by any citation of evidence. Moreover, this alleged error is more properly analyzed as trial tactics and strategy. The use of Holloway’s lineup photo for the legitimate purpose of cross-examination is not any evidence that trial counsel’s conduct fell below that standard of reasonably effective assistance which members of the bar in good standing are presumed to render.

Holloway’s assertion that trial counsel was ineffective for failing to request the appointment of a medical expert is unsupported by the evidence and lacks any citation of authority. In addition, Holloway fails to show what evidence any such medical expert may have presented which would have affected the outcome of the trial.

As for Holloway’s arguments that trial counsel failed to secure a hearing on any pretrial motions and failed to file necessary pretrial motions, trial counsel testified,

most all the motions were discovery motions, and the State fully complied with all of those, including the list of witnesses, scientific reports, any exculpatory evidence, as far as I — I couldn’t see that there was anything that they did not supply me with. In going back to the — I did file a preliminary motion to suppress as I do in most all these cases. And I just didn’t see anything that was really — anything that had any — that wasn’t frivolous. So I didn’t want to have a frivolous hearing and waste the Court’s time.

Holloway has failed to meet his burden of showing that trial counsel was ineffective in failing to secure a hearing on any motion or in failing to file any particular motion. Holloway’s argument that trial counsel should have filed a motion to sever lacks merit. Trial counsel testified that he chose not to move for a severance because both offenses occurred oh the same day, in the same vicinity, and were basically part of the same incident. He believed the motion was frivolous. Furthermore, Holloway has failed to show that there is any reasonable probability that the verdict would have been different had he been tried separately.

Holloway’s remaining allegations of ineffectiveness consist of a one-paragraph assertion that trial counsel (1) failed to object to the introduction of evidence and testimony (although no specific evidence and testimony are noted) and (2) revealed a conflict of interest (although what conflict he means is not mentioned). Based on the foregoing, the trial court correctly denied Holloway’s motion for a new trial on the ground of ineffective assistance of counsel.

3. The trial court held a Jackson-Denno hearing to determine the admissibility of Holloway’s in-custody statements. At the hearing, the state produced evidence from the arresting officers which would authorize a finding that Holloway either made the statements spontaneously without prompting by the officers or made them freely and voluntarily after receiving and waiving his rights. Holloway urges that the officers lacked credibility and that he made no statements. Accordingly, the trial court was called upon to make a credibility determination. Finding the arresting officers’ testimony more credible, the trial court admitted Holloway’s statements.

Decided July 21, 2000

Reconsideration denied August 10, 2000

Ellis R. Garnett, for appellant.

Michael D. Holloway, pro se.

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

“Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.” Based upon a review of the transcript of the Jackson-Denno hearing, there was no error in the trial court’s determination that Holloway’s statements were admissible into evidence.

4. In his supplemental brief, Holloway raises a number of alleged errors not raised in his enumeration of errors or in his original appellate brief. He argues that the trial court erred in taking on a prosecutorial role throughout the trial, that the Jackson-Denno hearing was not properly handled, that the court erred in its aggravated assault charge to the jury, and that the state’s comments, questions, and arguments violated the “plain error doctrine.” Attempts in a supplemental brief to expand the issues beyond the scope of the enumeration of errors are improper. Moreover, a review of each of these arguments, to the extent possible based on the lack of record citations, reveals that the arguments lack merit.

Judgment affirmed.

Smith, P. J, and Phipps, J., concur.

        Ferguson v. State, 232 Ga. App. 616 (502 SE2d 556) (1998); Sawyers v. State, 211 Ga. App. 668, 669 (3) (440 SE2d 256) (1994).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Ferguson, supra; Sawyers, supra.

        Hindman v. State, 234 Ga. App. 758, 762 (1) (507 SE2d 862) (1998).

        Anderson v. State, 237 Ga. App. 382, 384 (2) (515 SE2d 195) (1999).

        Champion v. State, 238 Ga. App. 48, 49 (1) (a) (517 SE2d 595) (1999); Letson v. State, 236 Ga. App. 340, 341 (2) (512 SE2d 55) (1999).

       See Court of Appeals Rule 26 (c); Williams v. State, 168 Ga. App. 614, 615 (4) (309 SE2d 856) (1983).

       We have not reviewed Holloway’s supplemental arguments regarding trial court errors since these arguments were not raised in either Holloway’s enumeration of errors or his original brief.

        Shaw v. State, 211 Ga. App. 647, 649 (2) (440 SE2d 245) (1994).

        Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996).

         Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       (Citations and punctuation omitted.) Scott v. State, 240 Ga. App. 50, 51 (2) (522 SE2d 535) (1999).

        Warbington v. State, 267 Ga. 462, 463 (3) (479 SE2d 733) (1997).

       See In re Harvey, 219 Ga. App. 76, 79 (464 SE2d 34) (1995); Jewell v. State of Ga., 200 Ga. App. 203, 205 (3) (407 SE2d 763) (1991).


author: Smith, Presiding Judge.

text:
    A00A0907.
    VINCENT v. LONGWATER.
    (538 SE2d 164)
   Smith, Presiding Judge.

In this appeal of an order denying a career soldier’s motion for summary judgment or, in the alternative, to dismiss a belatedly served complaint, we are called upon to determine the scope and effect of the tolling provision of Section 205 of the Soldiers’ & Sailors’ Civil Relief Act. 50 USCA Appx § 525. The trial court, in a thoughtful and well-crafted order, concluded that Section 205 by its terms applies to career military personnel as well as to those temporarily serving, that the statute of limitation as to the civil action against the soldier was tolled by Section 205, and that the doctrine of laches is inapplicable here. We agree with the trial court, and we affirm.

In April 1995, Edwin Longwater brought this action against Gary Vincent, a sergeant in the United States Army, alleging that he suffered personal injuries in an automobile collision and that Vincent negligently caused his injuries. On May 24, 1995, the sheriff issued a non est factum return on Vincent, stating that he was in Korea. Vincent was eventually served on January 6, 1998, and filed answers asserting the statute of limitation and the doctrine of laches. Vincent then moved to dismiss the complaint or, alternatively, for summary judgment on the basis of the statute of limitation and laches. We denied Vincent’s application for interlocutory review, and the case proceeded to trial and ended in a jury verdict in favor of Longwater. This appeal followed.

1. Section 205 provides in pertinent part:

The period of military service shall not be included in computing any period now or hereafter to be limited by any law, regulation, or order for the bringing of any action or proceeding in any court, board, bureau, commission, department, or other agency of government by or against any person in military service or by or against his heirs, executors, administrators, or assigns, whether such cause of action or the right or privilege to institute such action or proceeding shall have accrued prior to or during the period of such service.

(Emphasis supplied.) 50 USC Appx § 525.

Vincent first contends that Section 205 does not apply to career military personnel, as opposed to those temporarily posted to active duty. But, as Vincent acknowledges, “[u]nlike Section 201 (50 USCA, Appendix, § 521), which has been held to grant to the courts discretionary authority to stay proceedings where military service affects the conduct thereof, Section 205 is mandatory in nature and has been so interpreted.” (Citations and punctuation omitted.) Newman v. Newman, 234 Ga. 297, 298 (216 SE2d 79) (1975); see also Kennedy v. Porter, 213 Ga. App. 398-399, n. 1 (444 SE2d 818) (1994). And regardless of the split of authority in the federal circuits pointed out by Vincent, the Supreme Court of this state has expressly applied Section 205 to a career military serviceman. Newman, supra, acknowledged the application of Section 205 to a serviceman with almost 20 years of service, but declined to apply the tolling provision to a statutory reverter of title to land. Id. at 298-299.

Vincent also relies upon the well-established line of cases governing delayed service of process after running of the statute of limitation. See, e.g., Strickland v. Home Depot, 234 Ga. App. 545-546 (507 SE2d 783) (1998); Devoe v. Callis, 212 Ga. App. 618, 619 (442 SE2d 765) (1994). But those decisions are inapplicable here, because at the time Vincent filed his motion he remained on active duty with the United States Army. If Section 205 applies to Vincent as a career serviceman, the statute of limitation remains tolled and has not yet run.

Applying Section 205 as a mandatory provision, as we must, we conclude that the period of Vincent’s military service may not be included in computing any period of limitation for the bringing of a legal action against him. The trial court therefore correctly concluded that the statute of limitation was tolled for the entire period of Vincent’s military service.

2. In his second enumeration of error, Vincent contends that, even if the statute of limitation on the claim against him is tolled, the doctrine of laches should operate to bar Longwater’s claim. Under the facts and circumstances shown here, we disagree.

Laches is an equitable doctrine. The first maxim of equity is that equity follows the law. OCGA § 23-1-6; Dolinger v. Driver, 269 Ga. 141, 143 (4) (498 SE2d 252) (1998). Longwater’s suit against Vincent is a straightforward common law negligence action for money damages. “The doctrine of laches is an equitable one and has no relevancy to the action here since the rights to be enforced were upon legal grounds, and the statute of limitation had not run.” (Citations and punctuation omitted.) Spalding Ford Lincoln-Mercury v. Turner Broadcasting Systems, 202 Ga. App. 505, 508 (4) (415 SE2d 26) (1992). “A delay which was not beyond the statute of limitation could not be held to be laches sufficient to bar the action. [Cit.]” Cosby v. A. M. Smyre Mfg. Co., 158 Ga. App. 587, 592 (7) (281 SE2d 332) (1981).

Decided August 10, 2000

Brennan, Harris & Rominger, Mason White, James D. Kreyenbuhl, for appellant.

Eugene C. Brooks TV, for appellee.

Moreover, even if the doctrine of laches were applicable here, it would still be necessary for the pleader to “prove harm caused him by the delay. . . . Delay alone is never enough to show laches where there is an applicable statute of limitation.” (Citations omitted.) Clover Realty Co. v. J. L. Todd Auction Co., 240 Ga. 124, 126 (4) (239 SE2d 682) (1977). Vincent has not presented any evidence of harm caused by the delay; in his pleadings he asserts merely that the delay was unreasonable and that Longwater failed to exercise due diligence. The trial court did not err in declining to dismiss the complaint or to grant summary judgment in favor of Vincent.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       It does not appear that Vincent sought a discretionary stay of this action under Section 201 of the Act, 50 USC Appx § 521.

       “[T]his Court is not bound by decisions of other states or federal courts except the United States Supreme Court.” Rodgers v. First Union Nat. Bank, 220 Ga. App. 821, 822 (1) (a) (470 SE2d 246) (1996). This is particularly true in the presence of “pertinent Georgia authority.” Sanchez v. State, 234 Ga. App. 809, 810, n. 1 (508 SE2d 185) (1998).

       Once again, Vincent cites various federal cases from the Court of Claims and the Federal Circuit in support of his position. But as in Division 1, supra, we do not resort to federal law in the presence of controlling Georgia authority.

       In fact, Vincent asserts that he need not show prejudice because the delay is “inherently prejudicial.”


text:
    A00A1004.
    PIKE v. THE STATE.
    (538 SE2d 172)
   Smith, Presiding Judge.

This appeal arises out of a guilty plea entered by John Dexter Pike. In March 1995, Pike entered a nonnegotiated guilty plea on two counts of aggravated child molestation, one count of child molestation, one count of statutory rape, one count of enticing a child for indecent purposes, and one count of sexual exploitation of a child. He was later sentenced to the maximum term on each of these six counts, with each term to run consecutively, for a total of 121 years. He appeals, making two contentions. First, he maintains that his plea was not knowingly and voluntarily entered, based on the prosecutor’s misstatement of the maximum sentence he could serve during the guilty plea hearing. Under the limited circumstances of this case, we cannot agree with Pike that he is entitled to withdraw his guilty plea, despite the prosecutor’s misstatement. Second, Pike argues that his counsel represented him under a conflict of interest. We do not agree, and we affirm.

1. We first address Pike’s contention that he did not enter his plea with full knowledge of the consequences and therefore that the plea was not knowingly made.

During the plea hearing, the prosecutor informed Pike of the offenses with which he was charged, and Pike indicated his understanding that no agreement had been reached as to any sentence the State might recommend or the sentence he would actually receive. Pike was age 63 at the time of the guilty plea hearing. He acknowledged his understanding that the trial court could sentence him to the maximum possible punishment for each offense and that the sentences imposed on him could run consecutively to one another. The prosecutor advised Pike of the rights he was waiving by pleading guilty, and Pike stated that he understood he was giving up these rights. Pike further acknowledged his understanding that he was pleading guilty to two counts of aggravated child molestation, one count of child molestation, one count of statutory rape, one count of enticing a child for indecent purposes, and one count of sexual exploitation of a child. The prosecutor then stated the maximum sentences for each count and asked Pike if he understood that if the sentences were imposed to run consecutively, he could receive a sentence of 110 years in prison. Pike answered in the affirmative. Pike also stated that he had read the plea petition that was presented to the trial court, signed it, and understood it. Finally, he stated no one had threatened him, coerced him, or promised him any hope of benefit to enter the plea and admitted his guilt. The trial court entered the plea, finding that it had been freely and voluntarily given. The court delayed sentencing so that a presentence investigation could be conducted.

Several weeks later, on May 5, 1995, the court conducted Pike’s sentencing hearing. During this hearing, the prosecutor stated that during the plea hearing, he had “possibly misstated some of the maximum punishments” and that he wished to correct any misstatements. He then stated the following maximum sentences: 30 years on each of the two counts of aggravated child molestation; 20 years on the child molestation count; 20 years on the statutory rape count; 20 years on the count of enticing a child for indecent purposes; and 12 months on the count of sexual exploitation of a child. The prosecutor told Pike during the sentencing hearing that if his sentences were imposed consecutively, he “could possibly receive a sentence of 121 years in prison. In the event that I misstated that earlier, I’m correcting it at this time so that you will know.” Pike made no objection to this procedure and called two witnesses to testify on his behalf.

Pike then testified, admitting that he performed sexual acts on the nine-year-old victim on several occasions. He stated that he pled guilty so he “could spare” the victim and her family. He also admitted that after he was arrested but before arraignment, he fled the State of Georgia because his attorney had told him he “was going to prison for the rest of my life plus 70 years.”

Following Pike’s testimony, the prosecutor requested the court to sentence Pike to the maximum term of 121 years. Defense counsel was allowed to make argument on Pike’s behalf, and the trial court then gave Pike a “chance to tell me anything that you wish before sentence is imposed.” Pike stated, among other things, that he “made a terrible mistake” and hoped the court would have mercy on him. The trial court then sentenced Pike to the maximum punishment on each count and imposed these sentences to run consecutively, for a total of 121 years.

On appeal, Pike argues that because the prosecutor misstated the maximum sentence during the guilty plea hearing, he was not accurately informed of the consequences of his plea and, therefore, his plea was not entered knowingly and voluntarily.

Once a defendant has raised an issue with regard to the validity of his or her plea, the State faces the burden of showing that the plea was made intelligently and voluntarily. King v. State, 270 Ga. 367, 369 (1) (509 SE2d 32) (1998). The State may do this by showing on the record of the guilty plea hearing that the defendant was aware of the rights he was waiving and the consequences of his plea, or the State may fill “a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” (Citation and punctuation omitted.) Id. Furthermore, before accepting a guilty plea, a trial court must ensure that the defendant has been informed of the maximum possible sentences on the charges against him or her. See Uniform Superior Court Rule 33.8 (C) (2).

Although the State misstated the maximum sentence during the plea hearing in this case, we do not agree with Pike that reversal is required. After sentence has been pronounced, a defendant may withdraw a guilty plea only upon a showing by the defendant that withdrawal is necessary to correct a “manifest injustice.” USCR 33.12 (A). See also State v. Evans, 265 Ga. 332, 335-337 (3) (454 SE2d 468) (1995). And here, for several reasons, we cannot conclude that such a manifest injustice occurred. First, we note that Pike signed a petition to enter his plea indicating, among other things, that he understood the possible punishment and sentence he could receive and that he had knowledge of the maximum sentences that could be imposed upon him.

Second, before sentence was pronounced, Pike was entitled to withdraw his plea as a matter of right. OCGA § 17-7-93 (b). And before Pike was sentenced, thé prosecutor made him aware of the fact that he had misstated the possible maximum sentences. Without objection and with knowledge of the maximum possible punishment he might face by entering a guilty plea, Pike called witnesses on his behalf and testified during his sentencing hearing. Also, although the trial court did not specifically ask Pike whether he wished to withdraw the plea, as noted above, the trial court did give Pike an opportunity to say anything “that you wish before sentence is imposed.” With knowledge of the possible maximum sentence he could receive, Pike continued to participate in the sentencing hearing and was silent concerning the prosecutor’s earlier misstatement, waiting until after his sentence was entered to complain that the plea was not made knowingly and voluntarily.

Finally, although Pike may not have been aware of the exact sentence he faced at the time he pled guilty, there is no doubt he knew or should have known he faced a sentence that realistically would have extended beyond his natural life. He was 63 at the time he entered his guilty plea, and he was informed on the record that the maximum sentence he could face was 110 years. Furthermore, Pike admitted that he left this jurisdiction before arraignment, because his attorney had told him he might be in jail for the rest of his life “plus 70 years.” The record shows that Pike was aware of the possible severe consequences of his plea during the plea hearing, even if he was not aware of the exact maximum sentence. Given this fact, in addition to Pike’s plea petition indicating his knowledge of the maximum possible sentence, as well as the fact that Pike continued with his sentencing hearing after being made fully aware of the exact possible consequences of pleading guilty, we cannot say that a manifest injustice exists in this case warranting withdrawal of his plea.

Decided August 10, 2000

We note that Pike testified during the hearing on his motion to withdraw his guilty plea that when he pled guilty, he believed that he would receive five years imprisonment or even a probated sentence. But this testimony was based on inadmissible hearsay. Moreover, Pike’s testimony in this regard contradicted his acknowledgment at the earlier plea hearing that he understood he could receive 110 years in prison. This contradiction simply presented a matter of witness credibility, which the trial court was authorized to resolve against him. See Manues v. State, 232 Ga. App. 454, 455 (501 SE2d 826) (1998).

2. Pike also contends his trial counsel represented him “under a serious conflict of interest” and therefore that his conviction and sentence are illegal. We find no merit in this contention.

Pike correctly argues that after leaving public employment, a lawyer “should not accept employment in connection with any matter in which he had substantial responsibility prior to his leaving.” And here, defense counsel was employed by the district attorney’s office at the time the charges were brought against Pike. But Pike stated during the plea hearing that he waived any possible conflict. Furthermore, defense counsel testified that when Pike retained him, he discussed his previous employment as an assistant district attorney with Pike’s brother and with Pike. He also stated that when employed as a prosecutor, he never had any responsibility with respect to Pike’s prosecution and never had any discussions with any prosecutor or staff member about the case. In fact, he stated that while working in the district attorney’s office, he “possessed no knowledge of the case” and learned after he left the district attorney’s office “that the file existed.” Under these circumstances, we cannot conclude that defense counsel “had substantial responsibility” with respect to the prosecution of Pike’s case requiring him to decline employment by Pike. Pike correctly notes that “a significant conflict of interest may prevent an attorney from providing . . . effective assistance.” But here, a significant conflict did not exist. Nor has Pike demonstrated that his “counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” (Citation and punctuation omitted.) Fogarty v. State, 270 Ga. 609, 610-611 (513 SE2d 493) (1999).

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

John D. Pike, pro se.

Stephen D. Kelley, District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.

       Pike was granted leave to file an out-of-time appeal.

       During the earlier plea hearing, the prosecutor indicated that the maximum sentence on the count of enticing a child for indecent purposes was five years and that sexual exploitation of a child carried a five-year maximum sentence. The prosecutor’s calculations during the plea hearing with respect to the remaining counts were the same as those calculations relayed during the sentencing hearing. The earlier misstatements of the maximum sentences regarding the counts of sexual exploitation and enticing a child for indecent purposes account for the discrepancy between the prosecutor’s calculation of a maximum sentence of 110 years during the plea hearing and 121 years during the sentencing hearing.

       Pike was arrested in Texas in January 1995 and returned to this jurisdiction.

       This case is distinguished from King, supra. In King, the Supreme Court concluded that the issue of the voluntariness of the defendant’s plea could not be determined from the plea form alone. Id. at 371-372. Here, evidence exists in addition to the plea form signed by Pike showing that his plea was made knowingly and voluntarily. Consequently, the form is but one of the factors we have considered in reaching our decision.

       State Bar Rule 3-109, Ethical Consideration 9-3.


author: Phipps, Judge.

text:
    A00A1673.
    KNOWLES v. THE STATE.
    (538 SE2d 175)
   Phipps, Judge.

Gary Leon Knowles was convicted in the Douglas Superior Court of aggravated assault, aggravated battery, and possession of cocaine. His enumeration of errors begins with challenges to the sufficiency of the evidence and ends with a claim of ineffective assistance of counsel. We find no trial error or evidentiary insufficiency, and we conclude that the ineffectiveness claim has not been timely raised. The judgment is therefore affirmed.

Testimony given by Ginger Leigh Campbell and Carl Register showed that throughout the day in question, Campbell, Register, and Knowles were smoking crack cocaine at Register’s house in Douglas County and at Knowles’s apartment. According to Campbell, she and Knowles left Register’s house in the evening and returned to Knowles’s apartment, where he began acting paranoid. Because of Knowles’s erratic behavior, Campbell told him that she. wanted to leave. Campbell testified that while Knowles was driving her to an undisclosed location, he abruptly stopped his truck and brandished a butcher knife. Although Campbell escaped from the truck, Knowles ran her down and stabbed her repeatedly with the knife. After Knowles departed the scene, Campbell attempted to flag down vehicles to assist her. The operator of a truck saw her but did not stop. Eventually, another motorist picked her up and took her to a nearby hospital.

James Davis was the driver of the truck that failed to stop. He later called the county sheriff’s department and alerted authorities to what he had seen. Douglas County Deputy Sheriff Harrell responded to the call and located Campbell at the hospital. While being treated for life-threatening stab wounds, Campbell informed Harrell of the circumstances under which Knowles had attacked her with the butcher knife. She also provided the officer with a description of the clothes Knowles was wearing, the truck he was driving, and directions to his apartment.

Deputy Harrell found Knowles at his apartment. Knowles admitted that he had been with Campbell earlier, but he claimed that she had left his apartment hours before the knife attack and that he had then fallen asleep. During a consent search of Knowles’s apartment, the deputy found a knife holder with one knife missing. When asked to explain the whereabouts of the missing knife, Knowles responded that he and Campbell had been arguing and that she had taken the knife with her when she left.

A plastic bag was found floating in a toilet in Knowles’s apartment. The bag fit Campbell’s and Register’s description of the packaging for the cocaine they had smoked with Knowles. Blood and urine taken from Knowles tested positive for cocaine and metabolites of cocaine. An item of personal property belonging to Campbell was found in Knowles’s truck. Campbell’s treating surgeon testified that her stab wounds could have been inflicted with a knife fitting the measurements she estimated.

Russell Sharp, Knowles’s co-inmate at the Douglas County Jail, testified that Knowles had confided to him that he had stabbed Campbell because of her desire to leave his apartment after he had purchased cocaine for her rather than remaining there and having sex with him. Knowles told Sharp that he had discarded the knife in a wooded area and that he had hidden the clothes he had been wearing.

1. Knowles contests the sufficiency of the evidence to support the verdict based primarily on challenges to Campbell’s credibility, the absence of blood evidence or other physical evidence linking him to the crimes, and discrepancies in the State’s evidence concerning the timing of Davis’s call to the sheriff’s department.

The credibility of witnesses and the weight to be given their testimony are questions for the trier of fact, and it is not for us to determine or question how the jury resolved any conflicts in the evidence. Viewed in a light most favorable to the verdict, the evidence was clearly sufficient to have authorized any rational trier of fact to find Knowles guilty beyond a reasonable doubt of the crimes charged.

2. Knowles charges the trial court with error in not recording opening statements, closing arguments, and voir dire.

Prior to trial, Knowles filed a motion pursuant to OCGA §§ 17-8-5 and 5-6-41 for complete recordation of all proceedings. Although opening statements, closing arguments, and voir dire are excepted from recordation under these statutes, Knowles requested in the body of his motion that these parts of the proceeding be recorded. The court did not, however, rule on the motion, and Knowles raised no objection at trial. Therefore, Knowles has waived this claim of error.

3. Knowles contends that the State failed to prove venue in Douglas County for his conviction of possession of cocaine.

There is no merit in this contention. Campbell’s and Register’s testimony, coupled with the evidence showing the presence of cocaine and cocaine metabolites in Knowles’s blood, was sufficient to support a finding that he possessed cocaine at Register’s house in Douglas County.

4. Knowles complains of the trial court’s refusal to declare a mistrial after Sharp testified to the length of time Knowles had been in jail awaiting trial. Reference to the length of time a defendant has been in pretrial detention is not grounds for a mistrial. For this reason, this complaint is without merit.

5. Knowles contends that the trial court erred in admitting in evidence a photograph of his truck which also showed him in handcuffs during his arrest. Because all the circumstances connected with a defendant’s arrest are considered proper evidence to be submitted to the jury, this contention is without merit.

6. Knowles charges the trial court with error in allowing Davis to testify after the prosecutor informed defense counsel that Davis would not appear at trial.

Although the prosecution supplied the defense with the information about this witness required under the reciprocal discovery statute, the prosecutor told defense counsel shortly before trial that Davis could not be located. After opening statements, the prosecutor announced that his investigators had found Davis. The trial court overruled defense counsel’s objection to the witness’s testimony.

Knowles states that the prosecutor’s pretrial representation that the witness could not be located induced defense counsel to comment in his opening statement that the State would not be able to produce evidence that was later admitted through Davis’s testimony. As a result, Knowles complains that his counsel’s credibility was harmed. We find no harm to the defense sufficient to warrant a reversal.

Opening statement is intended to provide defense counsel with an opportunity to comment on what he “expects” the evidence to show. If evidentiary expectations expressed by defense counsel proved inaccurate as a result of the State’s belated discovery of the witness, counsel could have restored any lost credibility by explaining the reasons for his comments. It does not appear that the trial court abused its discretion in permitting the witness to testify.

7. Knowles contends that comments by the prosecuting attorney during closing argument concerning the defendant’s failure to present a defense constituted an infringement of his right to remain silent. The court ruled that, taken in context, the remarks were not improper. Under the present record, which does not include the closing argument, we must assume that this ruling was correct.

8. Knowles contends that the trial court abused its discretion in instructing the jury to disregard part of defense counsel’s closing argument.

During closing argument, defense counsel produced and measured a knife fitting the description of that used by Knowles in his attack on Campbell. In response to an objection by the State after closing argument had concluded, the trial court instructed the jury to disregard this demonstration. Because counsel is not authorized to present new evidence in closing argument, and because it does not appear that the knife and measuring implement utilized by defense counsel had been admitted in evidence, we find no error.

9. Knowles charges his trial lawyer with ineffective assistance.

Knowles’s trial attorney filed a motion for new trial on the general grounds. Months later, a new attorney was appointed to represent Knowles. Knowles’s new attorney filed an amended motion for new trial without raising any claim of ineffective assistance of counsel. Several months after the court denied the amended motion, Knowles’s new attorney moved for an out-of-time appeal on the ground that he had not received the order denying the amended motion for new trial. The court granted the motion for out-of-time appeal, and counsel filed a notice of appeal on behalf of Knowles. Following the docketing of the appeal, Knowles filed a motion seeking permission to represent himself pro se, and his new attorney filed a motion to withdraw as counsel. We remanded the appeal to the trial court for the purpose of acting on these motions. After the trial court granted the motions, the present notice of appeal was filed. Knowles now claims that his trial attorney was ineffective.

The question is whether the ineffectiveness claim has been asserted in a timely fashion.

Our Supreme Court has clearly stated that “the rule that an ineffectiveness claim must be raised at the earliest practicable moment requires that that claim be raised before appeal if the opportunity to do so is available; that the ability to raise the issue on motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising (that) issue at a later time.” [Cit.] Accordingly, if an appellant obtains new counsel prior to appeal, and counsel has the opportunity to raise the issue of ineffectiveness through a motion for new trial but fails to do so, we will not remand the case but will find that appellant has waived his right to raise the issue.

Decided August 10, 2000.

Gary L. Knowles, pro se.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Because Knowles in consultation with his second lawyer had the opportunity to raise the claim of ineffective assistance in the amended motion for new trial, the ineffectiveness claim has been waived.

Judgment affirmed.

Johnson, C. J, and Smith, P. J., concur.

        Davis v. State, 223 Ga. App. 346, 347 (1) (477 SE2d 639) (1996).

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

        Primas v. State, 231 Ga. App. 861, 862 (1), (2) (501 SE2d 28) (1998).

       See id. at 862 (2).

       See Green v. State, 260 Ga. 625 (1) (398 SE2d 360) (1990).

       See Ferrell v. State, 198 Ga. App. 270, 272 (3) (401 SE2d 301) (1991) (evidence that an accused has been in jail in connection with the case at issue does not place his character in evidence)

        State v. Luke, 232 Ga. 815, 816 (209 SE2d 165) (1974).

       OCGA § 17-16-1 et seq.

       See Uniform Superior Court Rule 10.2.

       Compare West v. State, 213 Ga. App. 362 (444 SE2d 398) (1994).

       See Division 2, supra.

       See Williams v. State, 254 Ga. 508, 511 (3) (330 SE2d 353) (1985).

       (Emphasis omitted.) Howard v. State, 233 Ga. App. 724, 730 (7) (505 SE2d 768) (1998).

        McBride v. State, 213 Ga. App. 857 (2) (446 SE2d 193) (1994).


text:
    A00A1743.
    WIGGINS v. THE STATE.
    (538 SE2d 180)
   Phipps, Judge.

Hayward Wiggins appeals the Macon County Superior Court’s denial of his motion to withdraw a guilty plea. The question for decision is whether the State has carried its burden of showing that the plea was knowingly and intelligently entered. We hold that it has and affirm.

An indictment was returned charging Wiggins with two counts of burglary of a grocery store, one count of burglary of a residence, one count of aggravated assault on the occupant of the residence with a deadly weapon, three counts of rape of the occupant, and one count of aggravated sodomy of the occupant.

On June 1,1999, Wiggins appeared with defense counsel for trial but, after completion of voir dire, pled guilty to two counts of burglary of the grocery store and to one count of rape. The prosecuting attorney informed the court that Wiggins’s attorney had “explained to him his rights in connection with this proceeding” and that defense counsel and Wiggins had also “completed and signed the advice and waiver of rights form.” Through his responses to questions in the “advice and waiver of rights” form, Wiggins attested that he was not under the influence of alcohol or drugs; that his plea was not influenced by any promise or threat; and that he understood that by pleading guilty, he could be imprisoned, and he was waiving his right to trial by jury, the presumption of innocence, his confrontation rights, his right to subpoena witnesses and to testify and offer other evidence, the right to assistance of trial counsel, and the right against self-incrimination.

After the prosecutor explained the factual basis for the plea, defense counsel spoke. He stated that he would have proceeded to trial on the charges relating to the rape victim, because evidence would have shown that any sexual activity between her and Wiggins was consensual. Counsel informed the court that he was nonetheless recommending that Wiggins accept the compromise plea to which the State had agreed. Counsel pointed out that Wiggins had no felony record. The court then advised Wiggins of his appeal rights, whereupon the hearing ended. On the date of the hearing, the court entered a written order sentencing Wiggins to two 20-year terms of probation on the burglary counts and to ten years incarceration on the rape count. The remaining counts were nolle prossed.

On July 1, 1999, Wiggins moved to withdraw his guilty plea. Wiggins argues that the record is insufficient for the State to carry its burden of showing that the plea was intelligently and voluntarily entered, because the trial court failed to comply with Uniform Superior Court Rules (USCR) 33.7, 33.8, and 33.11.

Uniform Superior Court Rule 33.11 . . . deals with the record of proceedings. . . . The record must show that the trial judge determined on the record the voluntariness of the plea as required under Rule 33.7, informed the defendant of certain rights as required under Rule 33.8, and determined the accuracy of the plea as required under Rule 33.9.

“But. . . the question is not whether the trial court followed the letter of [USCR 33] but whether the record, as a whole, affirmatively shows [the] plea was knowing and voluntary.”

Where voluntariness of a guilty plea is challenged, there must be “a record of the guilty plea hearing adequate for the reviewing court to determine whether (1) the defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea.” [Cits.]

Decided August 10, 2000.

Cecilia M. Cooper, for appellant.

John R. Parks, District Attorney, Alicia C. Jones, Assistant District Attorney, for appellee.

“The State has the burden on direct review to show that the plea was intelligently and voluntarily entered.” The State can meet this burden

either by “(1) showing on the record of the guilty plea hearing that the defendant realized all the rights he was waiving and the possible consequences of his plea, or (2) using extrinsic evidence that shows that the guilty plea was knowing and voluntary.” [Cit.]

Here, the record, which includes the “advice and waiver of rights” form, “reflects that the defendant was represented by counsel who advised him of all of his rights and of the consequences of entering the plea. [Cit.]” The State has carried its burden.

Judgment affirmed.

Johnson, C. J, and Smith, P. J, concur.

       (Footnotes omitted.) King v. State, 270 Ga. 367, 369-370 (1) (509 SE2d 32) (1998).

        Johns v. State, 223 Ga. App. 553, 554 (1) (479 SE2d 388) (1996).

        Green v. State, 265 Ga. 263 (1) (454 SE2d 466) (1995), citing Goodman v. Davis, 249 Ga. 11, 13 (287 SE2d 26) (1982).

        King v. State, supra at 368.

        Raley v. State, 241 Ga. App. 713, 714 (1) (527 SE2d 590) (2000).

        Lewis v. State, 191 Ga. App. 509-510 (2) (382 SE2d 207) (1989).


text:
    A00A1941.
    HALL v. THE STATE.
    (538 SE2d 166)
   Phipps, Judge.

Jerry Hall was convicted of possession of cocaine with intent to distribute. Although the Fulton Superior Court allowed him to file an out-of-time motion for new trial in which he claimed ineffective assistance of trial counsel, the court denied the motion.

Hall appeals, charging his trial attorney with deficient performance in failing to raise a chain-of-custody objection to the trial court’s admission in evidence of the substance taken from the crime scene and found to be cocaine. Hall argues that the State failed to establish an adequate chain of custody because the evidence bag containing the substance was turned over to an unidentified employee of the State Crime Laboratory, and unidentified crime lab personnel had access to the bag while it was stored in an evidence vault. We find no merit in these arguments and affirm.

A City of Atlanta police detective transported the substance to the crime lab in a sealed bag. The detective testified that she delivered the bag to a crime lab supervisor who in turn gave it to a chemist for testing. It is undisputed that Patricia Caldwell is the chemist who initially tested the substance in the bag. When this case came on for trial, however, Caldwell was no longer employed by the crime lab and was not available to testify. As a result, the substance in the bag was tested again, by Patricia Price, a chemist and assistant supervisor at the crime lab. This test showed the substance to be cocaine. Price testified that each chemist who analyzes drugs has access to an assigned area in the evidence vault and that, in her capacity as assistant supervisor, she had access to the area where the evidence in this case was kept. Price further testified that a chemist who leaves the employ of the crime lab transfers evidence under his or her control to Price or her supervisor, Terry Mills, and they maintain control of it. Price’s testimony showed that the evidence bag was sealed before she tested its contents and was resealed by her afterward.

In a recent case, this Court articulated what the State must show to prove an adequate chain of custody in a case such as this:

In order to show a chain of custody adequate to preserve the identity of fungible evidence, the state must prove with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. [Cit.] The state is not required to foreclose every possibility of tampering; it need only show reasonable assurance of the identity of the evidence. [Cit.]

The trial court was authorized to find that the State carried this burden.

Although the Atlanta police detective failed to identify the supervisor to whom she delivered the evidence bag, she testified that she observed the supervisor hand the bag to a chemist for testing. The trial court was authorized to find that the chemist was Caldwell. The evidence shows that the evidence bag was sealed when initially delivered to Caldwell and when later turned over to Price and that, while at the crime lab, the evidence bag remained in an area of the evidence vault to which only Caldwell, Price, and Mills had access. “Therefore, the identity of the sample and the chain of custody to preserve its identity [were] sufficiently established to permit its introduction into evidence. [Cits.]” Consequently, defense counsel did not render deficient performance in failing to object.

Decided August 10, 2000.

William R. Wansker, for appellant.

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

Judgment affirmed.

Johnson, C. J., and Smith, P. J., concur.

        Sanders v. State, 243 Ga. App. 216, 217 (1) (534 SE2d 78) (2000).

        Herndon v. State, 187 Ga. App. 77-78 (1) (369 SE2d 264) (1988); see Shrader v. State, 159 Ga. App. 522, 524 (2) (284 SE2d 37) (1981).

        Hammond v. State, 264 Ga. 879 (452 SE2d 745) (1995).


author: Miller, Judge.

text:
    A00A0984.
    KENT v. THE STATE.
    (538 SE2d 185)
   Miller, Judge.

Greg Kent was convicted of rape, aggravated sodomy, and aggravated assault. For sentencing purposes, the conviction for aggravated assault merged with the rape count. Following the denial of his motion for new trial, Kent filed this appeal. Kent now challenges the sufficiency of the evidence, the composition of the jury array, an evidentiary ruling, and the trial court’s refusal to give a charge on fornication. Having examined each of these issues and finding no error, we affirm.

1. Kent contends that the rejection of his pretrial challenge to the array violated his constitutional rights and the principles of fundamental fairness. He argues that the panel was comprised of too few persons of his race, gender, and age.

Kent misperceives the law. While traverse jury lists must consist of a representative and fair cross-section of the community to the fullest extent possible, the same is not true of an array. Provided that persons are not systematically excluded on the basis of race or other cognizable grouping, and provided that the jurors comprising a panel are randomly selected from a representative pool, the selection process is not inherently defective.

In this case, the Traverse Jury Certificate filed in the clerk’s office and dated May 19, 1998, showed that “as to groups: whites, blacks, men and women over 18 in Dougherty County, that imbalance is below 5%, which is the threshold.” This same certificate indicated that the statistical imbalance on the traverse jury list between males and females was 0.2 percent and the disparity for whites was 0.14 percent and for blacks was 0.26 percent. The trial court determined that the traverse jury list was representative of the population in Dougherty County, and no evidence showed otherwise. The court also found that the 35 jurors selected for Kent’s case had been “randomly selected by a computer drawing from what I have determined to be a properly constituted list.” Since Kent failed to establish any flaw in the selection process such as manipulation, misuse, or systematic exclusion of cognizable groups, the trial court properly rejected his challenge to the array.

2. Kent asserts that the verdict is contrary to law and without sufficient evidence to support it. We disagree.

On appeal, the evidence must be viewed in the light most favorable to the verdict, and Kent no longer enjoys the presumption of innocence. Although this court determines the sufficiency of evidence, it neither weighs the evidence nor assesses witness credibility.

When so viewed, the evidence established that Kent forced the victim to engage in sexual intercourse and oral sex. To coerce the victim into submission, Kent shoved, choked, and beat her, causing her to defecate upon herself. These crimes occurred at the victim’s residence where she and Kent had resided together until their break-up the month before.

After threatening to kill her, Kent pushed the victim down on the bed. Kent said, “I told you and I told you over and over, if I can’t have you nobody else is going to have you.” Ignoring her pleas, he orally sodomized her. Kent resumed choking her, pinned her down, forced her legs apart, then raped her notwithstanding her continued pleas. When Kent finally left her home, the victim immediately called police.

Photographs depicting visible injuries to the victim’s neck, legs, and vaginal area were admitted into evidence. Just hours after the rape, the Director of the Sexual Assault Nurse Examiners Program, Connie Knowles, conducted a physical examination of the victim. Knowles testified as an expert in the field of the examination of sexual assault victims. According to Knowles, the multiple tearing she observed in the victim’s vaginal area was consistent with the use of force and not with normal sexual intercourse. The day after the sexual assault, Sergeant Eddie Jones interviewed the victim, and she wrote out her statement in his presence. According to Jones, although “she changed maybe a couple words,” her statement was consistent. Jones testified that he noticed bruises on the victim’s neck and legs.

3. Kent contends that the trial court erred in permitting a written statement made by the rape victim to go out with the jury.

After the statement was read into evidence and the prosecutor wanted to show it to the jury, Kent objected to its length and the fact that portions of it were stricken out and overwritten. While cross-examining both the detective and the victim, defense counsel vigorously pursued the inconsistencies and alterations the victim had made while composing her statement. Finding the actual appearance of the statement in issue, the trial court admitted the statement over a continuing witness objection.

As a general rule, allowing the written statement of an alleged victim to go out with a jury violates the continuing witness rule. Although the State claims that the document was not offered for the purpose of bolstering the victim’s testimony but because the text of the statement had several scribbles, scratches, mark-throughs and cross-outs, the State cites no case and we have found none that would permit the admission of this exhibit. The victim was available to testify and did so. Allowing the statement to go out with the jury violated the continuing witness rule. Nevertheless, a judgment need not be reversed unless the error is harmful. Since the evidence contained in the statement was also brought out during the trial and the evidence of guilt was overwhelming, there was no harm. In light of the medical testimony and photographic evidence showing the use of brute force, and since the victim was extensively cross-examined about her written statement and any inconsistencies or alterations, it is highly probable that the jury’s view of this exhibit did not contribute to the verdict.

4. Kent contends that the trial court erred by providing the jury with a written copy of the charge and by denying his requested charge on fornication. He argues that since he and the victim routinely had engaged in consensual sexual intercourse, the critical issue was use of force. He claims that the jury should have been permitted to make a force determination.

Decided August 11, 2000.

Slemons & Spahos, David E. Slemons, for appellant.

Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Frances D. Hakes, Assistant District Attorneys, for appellee.

Among other requirements, a jury instruction must be adjusted to the evidence and embody a correct, applicable, and complete statement of law. Whenever any part of a requested charge is confusing, inapt, incorrect, or not authorized by the evidence, denial of the request is proper.

Contrary to Kent’s contention, the offense of fornication is not a lesser included offense to the crime of rape. Thus, the trial court correctly refused to give an instruction misstating the law. Moreover, the trial court properly instructed the jury that “[i]n both rape and aggravated sodomy the State must prove beyond a reasonable doubt that the victim did not consent to the act of aggravated sodomy or rape.” The court further charged, “[c]onsent on the part of the alleged female victim is fatal to a conviction for rape and for aggravated sodomy.” The charge as a whole covered the concept of force that Kent desired.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Williams v. State, 213 Ga. App. 458, 459 (1) (444 SE2d 831) (1994).

        See Meders v. State, 260 Ga. 49, 54 (2) (c) (389 SE2d 320) (1990); Jackson v. State, 270 Ga. 494, 497 (4) (512. SE2d 241) (1999) (defendant needed to present evidence showing that young adults had been consistently underrepresented).

       While the percentage of blacks age 18 and over in the county was 45.26 percent, the percentage of blacks age 18 or over on the list was 45.52 percent.

        Jewell v. State, 261 Ga. 861, 862-863 (3) (413 SE2d 201) (1992); see Pryor v. State, 231 Ga. App. 136, 137 (1) (497 SE2d 805) (1998).

        Sanders v. State, 236 Ga. App. 578 (512 SE2d 678) (1999).

        Sweet v. State, 237 Ga. App. 613, 614 (1) (516 SE2d 317) (1999).

        Gough v. State, 236 Ga. App. 568, 570 (2) (512 SE2d 682) (1999); see OCGA § 24-2-4.

       Compare Smith v. State, 236 Ga. App. 122, 126 (4) (511 SE2d 223) (1999) (victim’s statement was properly admitted as part of res gestae).

        Gough, supra, 236 Ga. App. at 570 (2).

        Hinton v. State, 233 Ga. App. 213, 214 (1) (504 SE2d 49) (1998).

       At the motion for new trial hearing, the trial court stated for the record that the court routinely provided the jury with a written copy of the charge as given and also charged the jury that it was to consider the instructions as a whole. Although Kent enumerated this procedure as error, he abandoned the issue by not addressing it in his brief. Court of Appeals Rule 27 (c) (2). In any event, no error occurred. Anderson v. State, 262 Ga. 26, 28 (3) (a) (413 SE2d 732) (1992) (trial court is authorized but not required to give a written copy of the charges to the jury).

        Register v. State, 229 Ga. App. 648 (1) (494 SE2d 555) (1997).

        Jones v. State, 200 Ga. App. 519, 521 (2) (c) (408 SE2d 823) (1991).

        Speer v. State, 60 Ga. 381, 382 (1878) (as a matter of law, “fornication cannot be forcible and against the woman’s will”).

       See Register, supra, 229 Ga. App. at 648 (1).


author: Mikell, Judge.

text:
    A00A1098.
    FLOYD et al. v. SPRINGFIELD PLANTATION PROPERTY OWNERS’ ASSOCIATION, INC.
    (538 SE2d 455)
   Mikell, Judge.

This is an appeal from an order amending a judgment entered on a jury’s verdict in 1992. That judgment awarded ownership of the water system in the Springfield Plantation subdivision in McIntosh County to the Springfield Plantation Property Owners’ Association, Inc. (“SPPOA”).

SPPOA filed the original suit after the subdivision’s developer, Sea Properties, Inc., which was dissolved in 1986, had tried to transfer title and possession of the water system to appellant Walton B. Floyd. The developer had hired Floyd to maintain and repair the system. When the developer sought to convey the water system to Floyd to relieve itself of further financial obligation, certain homeowners who opposed the sale incorporated SPPOA, on September 18, 1990. Subsequently SPPOA filed suit to determine who owned the system. The jury returned a special verdict, selecting SPPOA from several potential owners, including the original association, Springfield Plantation Homeowners’ Association, Inc. (“SPHA”). SPHA had been dissolved in 1988. Judgment was entered accordingly, awarding the water system to SPPOA.

Seven years later, SPPOA filed the instant motion, seeking to amend the 1992 judgment to state that SPPOA is the successor in interest to SPHA. Specifically, SPPOA asked the trial court to find that it has all rights, privileges, and obligations granted to SPHA by the subdivision’s Declaration of Covenants, Conditions and Restrictions (“Declaration”), including the right to collect fees for maintenance of the water system. Appellants, certain property owners in the subdivision, dispute that SPPOA is the proper entity to enforce the covenants.

SPPOA claims this clarification is essential because the appellants refuse to pay the assessments provided for in the Declaration. Further, SPPOA alleges that proceeds to pay a lien levied against a former property owner are being held by an unnamed attorney pending the outcome of this motion.

Appellants argue the only issue resolved in the 1992 litigation was whether the developer had the right to convey the water system to Floyd. SPPOA contends the jury could not have reached its verdict without finding that SPPOA was the successor in interest to SPHA, given that SPHA had been dissolved years before the original lawsuit was filed. Evidence presented at the hearing on the motion revealed that SPPOA has functioned actively since its formation as a nonprofit corporation in 1990. Among its various activities, SPPOA has paid $60,000 to add a second pumping station to the subdivision’s water system; spent $30,000 on a boat ramp; collected annual dues and quarterly assessments to pay for maintenance of common areas and the water system; and paid property taxes on common areas. SPPOA’s president testified that 81 percent of the property owners are current on payment of dues and fees. SPPOA has four standing committees, four to five board meetings a year as well as an annual meeting, and an annual newsletter.

The trial court took judicial notice of the Declaration, and appellants did not object. Based on the evidence, the trial court found that SPPOA was organized to enforce the Declaration and to operate the water system; the majority of the subdivision’s property owners belong to SPPOA; SPPOA was the successor to SPHA; and when the jury found SPPOA owned the water system, it found by necessary implication that it could operate the water system and collect the fees to defray the expenses.

Accordingly, the trial court issued an order amending the 1992 judgment. The order deems SPPOA the successor in interest to SPHA, nunc pro tunc from its date of incorporation in 1990, and grants it all the rights, privileges, and obligations provided for the “Association” as defined in the Declaration. This appeal followed. Held:

1. SPPOA’s motion to dismiss the appeal is denied.

2. We reject appellants’ contention that SPPOA’s motion to amend the judgment is time barred because it was filed outside of the three-year period prescribed by OCGA § 9-11-60 (f) for moving to set aside a judgment.

Appellants misconstrue the nature of SPPOA’s motion. SPPOA sought to amend the 1992 judgment, not to set it aside. In so doing, SPPOA relied on OCGA §§ 15-1-3 (6) and 9-12-14. OCGA § 15-1-3 (6) gives a trial court the power to “amend and control its processes and orders, so as to make them conformable to law and justice, and to amend its own records, so as to make them conform to the truth.” OCGA § 9-12-14 states that “[a] judgment may be amended by order of the court to conform to the verdict upon which it is predicated, even after an execution issues.”

Neither Code section sets a time limitation for moving to amend a judgment. Further, it has been held that a motion to amend a judgment entered nine years earlier was not time barred. Thus, SPPOA’s motion was not untimely.

Decided July 19, 2000

Reconsideration denied August 15, 2000

Phillips & Kitchings, Richard D. Phillips, for appellants.

3. Appellants also claim the trial court erred in holding a bench trial. Since the record discloses no demand for trial by jury, appellants have waived appellate review of this issue.

4. Turning to the merits, we hold that the trial court’s amendment was proper as it was merely a clarification of the prior judgment. “A judgment may be revised or amended, or entered of record, nunc pro tunc, on proper motion, at a term subsequent to that at which the judgment was rendered, so as to make the judgment speak the truth of the decision that was actually rendered. . . .”

In 1992, a jury found that SPPOA was the owner of the Springfield Plantation water system. The trial court then entered a judgment stating that the water system was the sole property of SPPOA. In order to reach its verdict, the jury must necessarily have found that SPPOA was the successor in interest to the prior homeowners’ association. The original suit sought clarification of who owned the Springfield Plantation water system — SPPOA, the developer, Floyd, or the individual property owners. To reach its verdict, the jury had to find that the developer transferred the water system to the original homeowners’ association. And the only way that SPPOA would then have any rights to the system was if the jury found that it was the successor in interest to the earlier association. The trial court’s recent amendment simply clarifies that result. It is not an improper modification or revision as no substantive rights are changed. By granting SPPOA sole ownership of the water system, SPPOA had all rights attendant to such ownership. The amendment does not change that result, but only provides clarification and allows the original judgment to be enforced.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

Hunter, Maclean, Exley & Dunn, Arnold C. Young, Colin A. McRae, for appellee.

       The Declaration defines “Association” as Springfield Plantation Homeowners’ Association, its successors, and assigns.

       Appellants appealed to the Supreme Court, which transferred the appeal to this Court for the reason that an appeal from an order clarifying a judgment under OCGA § 9-11-60 (g) does not lie within the Supreme Court’s exclusive jurisdiction.

        Rucker v. Williams, 129 Ga. 828, hn. 2 (60 SE 155) (1907).

        Stephenson v. Wildwood Farms, 194 Ga. App. 728, 729 (2) (391 SE2d 706) (1990).

       (Citation and punctuation omitted.) Burns v. Fedco Mgmt. Co., 168 Ga. App. 15 (308 SE2d 38) (1983).

       See Umoren v. Panesar, 265 Ga. 876, 877 (463 SE2d 10) (1995); Burns v. Fedco Mgmt. Co., supra, 168 Ga. App. 15.