text:
    A94A1036.
    ROSSER v. THE STATE.
    (444 SE2d 615)
   Birdsong, Presiding Judge.

Willie (Sonny) Boyd Rosser was convicted of sale of cocaine. The State’s evidence showed that appellant Rosser sold cocaine to an undercover agent and a confidential informant after the confidential informant led the undercover agent to Greg Hammett; Hammett said he was “dry,” but he got in the undercover car and directed the agent and the informant to appellant’s house in Hogansville in Troup County. Appellant then directed the informant, who was driving, north out of Hogansville toward Grantville on Highway 29. Before they reached Grantville, which is in Coweta County just north of the Meriwether County line, he directed them onto another road, and after driving around for a while seemingly to conceal the location of the seller from the two “buyers,” appellant directed them to get out of the car in some woods, where they waited about five minutes while appellant drove off. Appellant returned with some cocaine and sold it to the undercover agent.

On appeal, appellant contends the State did not establish venue in Meriwether County, and that the trial court erroneously denied his motion for mistrial which was based on the evidence of a co-defendant’s confession and admission. Held:

1. The State established venue in Meriwether County. The informant did not know which county they ended up in after appellant directed them in circles for a while. The undercover agent, who was from another state, testified that she saw a sign saying Meriwether County. Appellant contends the agent’s testimony is inconclusive because she was not familiar with the area and could not say for sure where the sale occurred. However, following the undercover car and monitoring the transaction via a transmitter installed in the undercover car was a drug agent in another police vehicle. This agent is from Troup County. He testified that he and his colleagues expected and intended the sale to occur in Troup County, where Hogansville is situated, but in fact he followed the undercover car up Highway 29 north, from Hogansville almost to Grantville; just before they reached Grantville, the undercover car turned off to the right (east) onto another road. The monitoring officers followed the undercover car on this road over Interstate Highway 85 just before the sale occurred. The Official Georgia Department of Transportation Map shows that Highway 29 north from Hogansville to Grantville skirts the far northwest corner of Meriwether County but never enters Meriwether County, but if one turns to the right off Highway 29 just before entering Grantville, one would enter Meriwether County. The map shows that 1-85 definitely traverses the northwest corner of Meriwether County. The jury was provided a road map as an exhibit. The evidence clearly establishes that the drug sale occurred in Meriwether County. The State shows more than the slight evidence which is sufficient to establish venue. Johns v. State, 239 Ga. 681, 682 (238 SE2d 372).

Decided May 27, 1994.

John D. Rasnick, for appellant.

Peter J. Skandalakis, District Attorney, David S. McLaughlin, Assistant District Attorney, for appellee.

2. Appellant’s contention that he suffered a “Bruton” violation (see, e.g., McDonald v. State, 210 Ga. App. 689, 690 (2) (436 SE2d 811)), citing Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476), when the State introduced his co-defendant’s confession against him and the co-defendant did not testify, is without merit in fact. We have reviewed the transcript where appellant contends this error occurred, and we find that the monitoring officer, in testifying that Greg Hammett took him back to the location in daylight, never testified that Hammett implicated appellant in the sale. The statements concerning what Hammett told the officer concerned the location where the sale occurred, without implicating appellant as the seller. The fact that the jury might conclude from other evidence that appellant was the seller wherever the sale occurred does not amount to a statement by the co-defendant implicating appellant as the seller. Since no admission or confession implicating appellant was made by Hammett, appellant was not denied his Sixth Amendment right to confrontation of witnesses under Bruton.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A94A1196.
    CALHOUN v. THE STATE.
    (444 SE2d 405)
   Birdsong, Presiding Judge.

Willie Calhoun appeals his conviction of aggravated assault and theft by shoplifting. Held:

1. About one week after the averred shoplifting and aggravated assault incident, a tipster alerted the police as to appellant’s identity as perpetrator, as to his whereabouts, and as to his attire. A police officer was dispatched to the scene in regard to a suspicious person wearing a blue outfit. Appellant was observed wearing blue and standing outside a convenience-type store. When asked why he was standing by the store, appellant replied he had been barred therefrom for suspected shoplifting; appellant then gave a false name to the officer. The officer left the scene, was informed that appellant had given him the wrong name, and that he was wanted for questioning in regard to an aggravated assault. Within approximately three minutes, the officer returned to the scene for the purpose of arresting appellant for giving a false name and aggravated assault. The officer arrested appellant on a false name charge. See OCGA § 16-10-25.

The trial court did not err in overruling appellant’s motion for mistrial based upon the State’s alleged injection of appellant’s character in evidence by stating in opening argument and subsequently eliciting testimony that appellant gave a false name at the time of arrest. “Evidence regarding the circumstances of appellant’s arrest was admissible, ‘even though it may incidentally show the commission of another crime.’ ” Moulder v. State, 207 Ga. App. 335, 337 (6) (427 SE2d 793). Evidence of appellant’s use of a false name at the time of arrest was admissible (McFadden v. State, 171 Ga. App. 447, 448 (1) (319 SE2d 878)); the trial court did not err in denying appellant’s motions for mistrial. Additionally, the ultimate arrest of appellant was inextricably linked to the initial report of the tipster identifying appellant as the perpetrator of the offenses at issue and giving appellant’s attire and general location.

2. During cross-examination, a State witness gave a non-responsive answer to the question whether appellant threw a brick at anyone confronting him; the witness testified, without objection, that “if anybody had walked up there on him, he would have.” “ ‘[A]ll evidence is admitted as a matter of course unless a valid . . . objection is [timely] interposed.’ ” Hite v. State, 208 Ga. App. 267, 269 (1) (430 SE2d 125). Approximately two questions later, when appellant’s counsel asked what appellant did with the brick, the witness testified, “well . . . since nobody didn’t come ... up there on him, he just put the brick down.” At this point, appellant’s counsel requested that the witness be “admonished” not to give an opinion as to the mental state of someone else. In a following colloquy, appellant attempted to clarify that he was posing an objection to opinion testimony regarding what someone else thought or might have done. The trial court did not expressly rule on appellant’s restated objection, but did deny it by implication. At no time did appellant belatedly object to or move to strike the earlier elicited, albeit non-responsive, opinion testimony that appellant “would have” thrown the brick had anyone walked up on him. Assuming error occurred (compare Lester v. State, 75 Ga. App. 42, 59 (8) (42 SE2d 141)), it was rendered harmless by the previously admitted evidence that appellant would have thrown the brick if anyone had walked up on him; the opinion testimony at issue is merely cumulative of testimony already in evidence. See Platt v. Nat. Gen. Ins. Co., 205 Ga. App. 705, 710 (1) (423 SE2d 387). Additionally, as appellant’s own trial procedure and conduct aided in causing the trial court’s ruling, he cannot obtain relief therefrom on appeal. See Williams v. State, 205 Ga. App. 445, 446 (2) (422 SE2d 309).

3. The State, over timely objection, argued that the jury did not know whether appellant would steal again if turned loose. This type of argument invites the jury to make predictions as to the consequences of its verdict when determining appellant’s guilt or innocence, and tends to inject indirectly sentencing issues before the jury. Compare Walker v. State, 254 Ga. 149, 158 (14) (327 SE2d 475) (dictum).

Examination of the isolated portion of the argument reported in the trial record reflects that at most it might tend to cause the jury to convict appellant for shoplifting to ensure that he would not “steal” again. We are satisfied beyond a reasonable doubt (see Palmer v. State, 186 Ga. App. 892, 897 (3) (369 SE2d 38)) that any error flowing from the State’s argument to the jury did not impact on the verdict of guilty of aggravated assault. Therefore, in view of the disposition hereinafter taken as to the shoplifting conviction, any error flowing from the argument of the State would be harmless.

4. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) establishes the proper test for an appellate court to employ when sufficiency of the evidence is challenged by means of a motion for new trial which is denied. Daras v. State, 201 Ga. App. 512 (1) (411 SE2d 367).

(a) Applying the test of Jackson v. Virginia, we find that the evidence is not sufficient to sustain appellant’s conviction of shoplifting. “ ‘Hearsay evidence is without probative value and will not establish fact in issue even in the absence of a timely objection.’ ” Feagin v. State, 198 Ga. App. 460, 461 (1) (402 SE2d 80). The State attempted to establish by hearsay evidence that appellant took snuff from the store without paying for it. Although various store personnel testified, these were persons who merely had been told an act of shoplifting had occurred and who, as a result, followed appellant. The bare fact that appellant subsequently threw snuff on the ground does not establish that he had shoplifted it, especially when appellant was confronted by several persons demanding that he give back store merchandise. Nor did the State introduce any form of store business record to establish that the snuff had not been purchased. The affirmative response of the witness, Fletcher, to the leading question, “and again, it’s your testimony that your products were in his hands,” did not establish a theft occurred; at most, a reasonable inference could be drawn that the snuff had come from the store. Moreover, Fletcher testified that “when I was inside the store, we had a shoplifter so when I came up toward the front, [appellant] ran outside and then so a group of the employees went outside, too . . . about two or three of them in front of me . . . and then [appellant] reached down in his pants and busted two things of C.C. snuff.” (Emphasis supplied.) In response to a question whether the employees were able to recover the snuff, Fletcher testified, “no, sir, because the manager said the only thing he needed was just the UPC label where he can get the charge for . . . the snuff.” This testimony and that of other employees failed to establish by competent evidence of record that appellant actually took snuff without paying for it; the State concedes in its brief that “the record is not clear as to exactly who initially saw appellant commit the shoplifting by taking the two cans of snuff off the shelf.” However, the record is clear that none of the witnesses called by the State testified that appellant did not pay for the items before he departed the store. The evidence in this case is not sufficient to sustain appellant’s conviction for shoplifting either under OCGA § 24-4-6 or the test of Jackson v. Virginia, supra.

(b) In support of his enumeration of error of insufficiency of the evidence of aggravated assault, appellant in essence argues that a fatal variance exists between the allegata and the probata; the indictment alleges the aggravated assault was committed in one manner and the proof establishes it was committed in another. This specific error is not reasonably contained within appellant’s enumeration of error before this court; thus, it is not preserved on appeal. Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649). Further, applying the test of Battles v. State, 262 Ga. 415, 417 (5) (420 SE2d 303), the variance, as alleged, would not be fatal.

(c) Although there is no testimony that appellant slashed at the victim, White, with a knife, there exists competent evidence of record that appellant pulled out the knife and started threatening everybody; he swung, waved and/or flashed the knife around and told all of the employees “to come on”; White was still “kind of close” when appellant pulled the knife out and backed up; to ensure he was not going to be cut, White left when he realized appellant, who was not going to release the knife, “was going to cut somebody if they grabbed him.” On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of aggravated assault. Jackson v. Virginia, supra. Compare Robinson v. State, 211 Ga. App. 331 (439 SE2d 104); Curtis v. State, 190 Ga. App. 173 (1) (378 SE2d 516).

Decided May 27, 1994.

John L. Tracy, for appellant.

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

5. Appellant asserts the trial court erred in failing to give his request to charge number one. A verbatim copy of this charge request does not appear in the record; neither was the request recited verbatim during appellant’s exceptions to the charge. At best, the transcript reveals the general nature of the charge request. The trial court does not err in refusing to give a charge if any portion thereof is inapt, incorrect, confusing, misleading, or not authorized by the evidence. Jones v. State, 200 Ga. App. 519, 521 (2c) (408 SE2d 823). To determine whether the trial court erred in denying the charge request, we would have to examine the actual request tendered to the trial court. Hunnicutt v. Hunnicutt, 182 Ga. App. 578, 579 (356 SE2d 679); Brown v. State, 146 Ga. App. 286 (2) (246 SE2d 370). Further, examination of the charge given in its totality reveals the jury was instructed adequately as to the elements of the offense of aggravated assault.

Consistent with the determinations above reached, appellant’s conviction for shoplifting must be reversed and the case remanded for resentencing. The judgment of conviction of aggravated assault is affirmed.

Judgment affirmed in part, reversed in part, and remanded with direction.

Cooper and Blackburn, JJ., concur.


text:
    A94A1243.
    ISAACS v. THE STATE.
    (444 SE2d 409)
   Birdsong, Presiding Judge.

After a bench trial, Danny Edward Isaacs was found guilty of kidnapping, burglary, aggravated assault, sexual battery, and simple battery. Upon Isaacs’ motion, the trial court merged the simple assault count with the sexual battery count, and then sentenced Isaacs to serve 20 years for the kidnapping, 20 years consecutively to the kidnapping sentence for the burglary, 20 years on probation consecutively to the sentences for kidnapping and burglary for the aggravated assault, and 12 months on probation concurrently with the sentence for aggravated assault for the sexual battery.

Isaacs contends the trial court erred by failing to merge the kidnapping count with the aggravated assault count, and also erred by failing to exclude evidence of an impermissibly suggestive photographic line-up. Held:

1. Construing the evidence most strongly in support of the verdict as we must (Grant v. State, 195 Ga. App. 463 (393 SE2d 737)), the record shows that Isaacs, who was campaigning for a political candidate, visited the victim’s home one afternoon ostensibly to secure her support for his candidate. After spending some ten to twenty minutes with her in friendly conversation, Isaacs left.

The next day, Isaacs returned to the victim’s home again ostensibly seeking permission to place a sign in the victim’s yard and again spoke with her for several minutes in seemingly friendly conversation. When the victim turned to go inside her home, Isaacs burst through the front door, knocking the victim to the floor. Isaacs attempted to drag the victim upstairs, but when she resisted, he dragged her through the dining room and into the kitchen. When in the kitchen, Isaacs threw her to the floor and removed the victim’s shorts. Then, Isaacs abruptly stopped his attack and left.

Isaacs contends that the facts necessary to prove the kidnapping conviction were included in the evidence necessary to establish the aggravated assault conviction. Consequently, he contends the trial court erred by not merging the kidnapping count with the aggravated assault conviction and sentencing him only for the aggravated assault.

The record shows that Isaacs was indicted with kidnapping by “abductfing the victim] without lawful authority and holding] her against her will” and the aggravated assault with intent to rape count charged him with throwing the victim to the floor and removing her pants thereby placing the victim in reasonable apprehension of immediately receiving a violent injury, “to wit: rape.” Thus, the indictment alleged two separate offenses.

“In determining whether a crime is established by proof of the same or less than all the facts required to establish the commission of another crime within the meaning of OCGA § 16-1-6, we look to the actual evidence introduced at trial. If the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under OCGA § 16-1-6.” (Citation and punctuation omitted.) Turner v. State, 194 Ga. App. 878, 880 (3) (392 SE2d 256). See also Peterson v. State, 212 Ga. App. 31 (441 SE2d 267) (physical precedent). In this instance, it is apparent that the State did not use all of the evidence necessary to establish the kidnapping when proving the aggravated assault.

Here, the kidnapping was complete when Isaacs dragged the victim from the front door to the kitchen and held her against her will. See Giddens v. State, 190 Ga. App. 723, 725 (380 SE2d 274). Thus, the evidence necessary to establish the aggravated assault, i.e., that Isaacs, with the intent to commit rape, threw the victim to the floor and pulled off her pants, however, was different from the evidence necessary to establish the kidnapping, i.e., that the victim was dragged and held in different rooms of her house. See Giddens v. State, supra; Williams v. State, 178 Ga. App. 581, 592 (344 SE2d 247). Further, even if the two offenses had been established by the same evidence, Isaacs would not be entitled to the relief he seeks. If merger was required, the aggravated assault offense would have merged into the kidnapping. See Gober v. State, 203 Ga. App. 5, 8 (416 SE2d 292). Therefore, Isaacs’ first enumeration of error is without merit.

2. Isaacs next enumerates as error the trial court’s admission of evidence concerning his photographic line-up. The sheriff’s department was called and a deputy took a description of the suspect that upon contact with the campaign of the local candidate led to Isaacs. The deputy later prepared a photographic line-up from which the victim identified Isaacs’ photograph. Isaacs, however, contends this identification should have been excluded because his photograph was sufficiently different from the others so that it was impermissibly suggestive.

Pretermitting whether there were defects in the photographic line-up, the test for determining whether a due process violation occurred in cases such as this “is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” McCoy v. State, 190 Ga. App. 258, 260 (378 SE2d 888). The considerations in evaluating the likelihood of misidentification include: (a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401); McCoy v. State, supra.

Decided May 27, 1994.

Bruce S. Harvey, Pete C. Whitlock, Jr., for appellant.

Lydia J. Sartain, District Attorney, Lee Darragh, Assistant District Attorney, for appellee.

In this instance, the record shows that prior to the attack and in unstressful circumstances, the victim talked with Isaacs for extended periods on two days with no apparent distractions; the victim’s description of her attacker given to the police was sufficiently accurate that campaign workers were able to promptly identify Isaacs as the probable suspect; the photographic line-up was conducted shortly after the crimes and the victim identified Isaacs without hesitation. Thus, considering these factors, we must conclude that under the “totality of the circumstances” (Neil v. Biggers, supra), the procedures used in this case were not so impermissibly suggestive as to cause a very substantial likelihood of irreparable misidentification.

Nevertheless, assuming arguendo some taint occurred in the pretrial identification, a witness’ in-court identification may be admitted if it has an “independent origin.” McCoy v. State, supra. See Jones v. State, 258 Ga. 25, 27 (365 SE2d 263). Therefore, considering the totality of the circumstances discussed above as well as the witness’ ability to identify Isaacs, we find that the witness’ in-court identification had an independent origin so that any error in the photographic line-up was harmless beyond a reasonable doubt. Johnson v. State, 238 Ga. 59, 60 (230 SE2d 869); Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38). Therefore, this enumeration of error is also without merit.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


author: Blackburn, Judge.

text:
    A94A1368.
    MODESITT et al. v. WAFFLE HOUSE, INC.
    (444 SE2d 412)
   Blackburn, Judge.

Appellants, Diana Modesitt and Jon Modesitt, individually and as administrator of the estate of Jeffery Modesitt, appeal the trial court’s order granting defendant Waffle House, Inc.’s motion for summary judgment. Appellants contend that the existence of genuine issues of material fact preclude summary judgment and that the trial court erred by not considering certain evidence.

1. In their second and third enumerations of error, appellants assert that the trial court erred in failing to consider certain evidence. However, the trial court states in its order that it reviewed and considered the entire record prior to making its decision. The trial court does not make specific findings of fact and appellants fail to produce any evidence which suggests that the trial court did not consider the entire record. See Vaughn & Co. v. Saul, 143 Ga. App. 74 (5) (237 SE2d 622) (1977). Therefore, these enumerations are without merit.

2. In their first enumeration of error, appellants contend that genuine issues of material fact exist as to whether, on August 3, 1990, the employees of Waffle House failed to respond appropriately to notice of danger, and the potential for harm to their patrons.

Our review of the record reveals that appellants’ decedent, Modesitt, was shot and killed by Mark Graetz, in the early morning hours, in the parking lot of a Waffle House restaurant. Prior to the shooting incident, a female patron complained to one Waffle House employee that Graetz was “in the parking lot f___ing himself’ and to another employee that Graetz was “in the parking lot urinating.” The patron requested that the employee call the police. Waffle House employee, Kyle Artis, averred that he went to the front door of the restaurant, looked out, and saw Graetz but it appeared Graetz was leaning against his car doing nothing.

The complaining patron sat in a booth by the front window with two other women. They had arranged to meet Modesitt and his friend, Mark DeDecker, at the Waffle House. Modesitt and DeDecker arrived in separate cars. Modesitt parked by the front window, near the booth in which the women sat. Modesitt obtained a golf club from his vehicle and began to take practice swings in front of the window. Thereafter, Modesitt and DeDecker came into the restaurant and sat with the three women. Graetz was sitting in the restaurant with a friend, one booth away. The women pointed to Graetz and told Modesitt and DeDecker that Graetz had been in the parking lot “masturbating or urinating.” During his deposition, DeDecker described the women as being “disgusted,” by Graetz’s behavior, but said they were all laughing at Graetz. Graetz heard them laughing at him and he yelled “shut up” at them.

Modesitt and DeDecker talked with the women for a few minutes and DeDecker got up and spoke to a waitress about placing an order. DeDecker deposed that upon his return to the booth, Graetz looked at him and with a raised voice said, “Shut up, you stupid nigger.” Graetz repeated his comment and then “stormed out” of the restaurant. Graetz deposed that he said “dumb nigger” before leaving the restaurant. DeDecker deposed that Modesitt said, “Well, let’s go outside and see what he wants.” On Modesitt’s way out, Kyle Artis heard him say he was “going to kick [Graetz’s] ass.” The evidence is undisputed that Graetz never approached Modesitt’s booth or made any threatening physical movements toward the occupants of that booth. It is further undisputed that a verbal altercation did not take place inside the restaurant; Graetz repeated his comment and left. In fact, one of the patrons did not notice anything until after Graetz left the restaurant; he averred “[he] was inside the Waffle House finishing [his] breakfast when [he] realized that there was an argument going on in the parking lot.” (Emphasis supplied.)

DeDecker deposed, “I thought he [Graetz] was going to take off, you know, leave. But he opened up his door and reached under his seat or behind his seat and then I . . . saw he had a gun. And I told Jeff, I said, ‘Look, this guy’s got a gun. Let’s just go inside, forget it, you know.’ And Jeff said, ‘Go call the police.’ ” A Waffle House employee was already using the phone to call the police when DeDecker walked over to it.

Thereafter, a verbal altercation ensued between Modesitt, DeDecker, and Graetz in the parking lot. Modesitt told Graetz, “If you’re going to use that gun, you’d better kill me”; and Graetz responded, “You shouldn’t have said that.” DeDecker deposed that Graetz was “saying a lot of fighting words [and] . . . Jeff [Modesitt] was just responding.” Prior to the arrival of the police, Graetz shot and killed Modesitt.

“A proprietor’s duty to invitees is to exercise ordinary care in keeping the premises and approaches safe. OCGA § 51-3-1. The proprietor is not the insurer of the invitee’s safety, but is bound to exercise ordinary care to protect the invitee from unreasonable risks of which he or she has superior knowledge. If the proprietor has reason to anticipate a criminal act, he or she then has a duty to exercise ordinary care to guard against injury from dangerous characters.” (Citations and punctuation omitted.) Good O'l Days Downtown v. Yancey, 209 Ga. App. 696, 697-698 (434 SE2d 740) (1993). Appellants contend the death resulted from escalating violence that began in the presence of Waffle House employees and that the employees failed to exercise ordinary care by failing to summon the police.

Whether the proprietor fulfilled its duty to exercise ordinary care in protecting its customers is a jury question “unless the allegations or evidence show beyond controversy that there was no such breach of duty.” (Punctuation omitted.) Shell Oil Co. v. Diehl, 205 Ga. App. 367, 368 (422 SE2d 63) (1992). In the present case, it is undisputed that a Waffle House employee called the police immediately after Graetz produced the gun. Furthermore, our review of the record reveals that Graetz produced the gun within a minute, if not seconds, of making his comments inside the restaurant. All witnesses agreed that Graetz left the restaurant after he repeated his comment to Modesitt and DeDecker and that Graetz’s car was parked across the Waffle House parking lot within view of the restaurant. It is also clear that Modesitt followed Graetz outside.

Decided May 27, 1994.

David W. Boone, Leigh M. Smith, Lyle G. Woodruff, for appellants.

Swift, Currie, McGhee & Hiers, James B. Hiers, Jr., Susan A. Dewberry, for appellee.

Under the facts of this case, we find that Waffle House acted reasonably in fulfilling its duty toward Modesitt by calling the police after Modesitt and DeDecker followed Graetz outside and Graetz produced the gun. As Waffle House negated an essential element of the plaintiffs’ case, i.e., breach of duty, the trial court was correct in granting Waffle House’s motion for summary judgment. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

       Appellants filed the transcript of the criminal proceeding with the trial court; however, such transcript is inadmissible hearsay in this action, and was not considered by this court.

       Modesitt was approximately 6'5" tall and 220 pounds and DeDecker was approximately 6'4" tall and 235 pounds, at the time of this incident.

       The Waffle House did not have a phone on the inside of the restaurant from which an outgoing call could be placed; therefore, the employee had to use the pay phone directly outside the front door to call the police.

       After a criminal trial, Graetz was convicted of voluntary manslaughter.


text:
    A94A1376.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. HAMILTON.
    (444 SE2d 414)
   Blackburn, Judge.

The appellee, Wendy Hamilton, commenced this action against State Farm to recover no-fault benefits for medical expenses and lost wages and collision coverage benefits for damages to her automobile pursuant to a State Farm insurance policy. Both Hamilton and State Farm moved for summary judgment, and the trial court granted Hamilton’s motion and denied State Farm’s motion. This appeal followed.

The relevant evidence shows that on September 30, 1989, Hamilton visited the Walter Blackmon Insurance Agency, an independent insurance agency, for the purpose of purchasing automobile insurance in connection with her purchase of a new automobile. Hamilton completed and signed an application for automobile insurance through the Georgia Automobile Insurance Plan (“Plan”), and submitted the application to Linda Hughey, the office manager at the Blackmon Agency. The Blackmon Agency subsequently forwarded the application to the Plan, and the Plan assigned the coverage to State Farm on October 10, 1989.

On October 2, 1989, Hamilton was involved in a single car accident causing her serious personal injuries and substantially damaging her new automobile. Hamilton thereafter made a claim for benefits under the State Farm policy. State Farm denied her claim contending coverage was effective on October 3, 1989, the day after the accident, and therefore, Hamilton was not insured with State Farm at the time of the accident.

In its three enumerations of error, State Farm continues to contend that there was no coverage under the policy until October 3, 1989, and therefore, the trial court erred in granting Hamilton’s motion for summary judgment and denying its motion for summary judgment. In response, Hamilton asserts coverage was effective on October 1, 1989, the day before the accident, and therefore, the court properly ruled on the motions. The sole issue before this court, is whether the coverage at issue became effective on October 1, 1989, as contended by Hamilton, or on October 3, 1989, as contended by State Farm.

“Pursuant to the rules of the assigned risk plan promulgated by the Georgia Insurance Commissioner pursuant to OCGA § 40-9-100 (a), applications to the plan may be submitted by certain licensed entities such as the agent in this case. Georgia Automobile Insurance Plan and Manual of Rules and Rates, § 11. Upon receipt of an application, the service office which administers the plan assigns the application to an insurance company. Coverage becomes effective ‘at 12:01 A.M. on the day following the date of mailing of the application to the Plan as shown by the postmark on the transmittal envelope. If the postmark is not legible the coverage will be effective at 12:01 A.M. on the date of receipt by the Plan Office.’ Id. at § 12.A.1.” (Emphasis supplied.) Auto Towne Ins. Agency v. Hart, 206 Ga. App. 120 (424 SE2d 303) (1992). In the case at bar, therefore, if the application was mailed on September 30, 1989, the coverage was effective on October 1, 1989, and if the application was mailed on October 2, 1989, the coverage was effective on October 3, 1989.

It is uncontroverted that the envelope containing Hamilton’s application to the Plan, which under the rules of the Plan is to be used to establish the effective date of the coverage, has been destroyed by the Plan in its normal operating procedures. To prove the date the application was mailed to the Plan, therefore, Hamilton submitted the affidavits of Linda Hughey and T. D. Simpson, the postmaster of the main post office on Crown Road in Atlanta, Georgia. In her affidavit, Hughey states: “I was present during the visit by Wendy Hamilton to Mr. Blackmon’s agency on September 30, 1989. After the close of the agency at mid-day on Saturday, September 30, 1989, I deposited the envelope containing Ms. Hamilton’s application in the main post office facility on Crown Road. That envelope was addressed to the Georgia Auto Insurance Plan. Since I lived near the Crown Road facility, it was my duty to make daily mail deposits. It was the practice of the agency then, as it is now, to deposit our mail on a daily basis at the close of each business day. Simpson states in his affidavit that: “Items of mail which are deposited at this facility and which are properly addressed with adequate postage attached thereto are processed on a daily basis and a postmark is affixed to each item of mail showing the date of processing.”

Decided May 27, 1994.

Harper, Waldon & Craig, Thomas D. Harper, Hilliard V. Castilla, for appellant.

Lane, O’Brien, Caswell & Taylor, Richard T. Taylor, for appellee.

Although this evidence presented to the trial court goes to show the envelope containing Hamilton’s application was postmarked on September 30, 1989, there was also evidence in the record that the envelope was not postmarked until two days later, on October 2,1989. In that regard, the record includes a copy of the October 10, 1989, notice to the Blackmon Agency from the Plan assigning coverage to State Farm, which specifically provides that coverage shall be effective as of October 3, 1989, at 12:01 a.m. Additionally, Mr. Blackmon deposed that upon receiving such notice, he called the Plan and specifically asked when the envelope was postmarked, to which inquiry the person at the Plan responded October 2, 1989.

We find the evidence in the record raises issues of fact as to the date the application was mailed from the Blackmon Agency to the Plan and therefore as to the effective date of the coverage. Accordingly, we find the trial court correctly denied State Farm’s motion for summary judgment, but erred, in granting Hamilton’s motion for summary judgment.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Cooper, J., concur.

       Hamilton also seeks to recover a 25 percent statutory penalty and' attorney fees for State Farm’s bad faith failure to pay her claim pursuant to OCGA § 33-4-6.


text:
    A94A1393.
    BUICE v. THE STATE.
    (444 SE2d 617)
   Blackburn, Judge.

Steve Harris Buice is serving a life sentence plus 50 years for a 1987 conviction of burglary, armed robbery, false imprisonment, aggravated assault upon a police officer, possession of a firearm during the commission of a felony and possession of a firearm by a convicted felon. Buice v. State, 191 Ga. App. 7 (380 SE2d 741) (1989). In December 1993, Buice filed, pro se, a motion in the Superior Court of Gwinnett County for pre-trial and arrest documents and court records at the State’s expense. The motion was denied, and this appeal followed.

1. In enumerations 1, 3, and 4, Buice contends the trial court erred in denying his motion and therefore violated his rights under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and rights under the Georgia Constitution. We disagree.

In his motion and brief on appeal, Buice contends he needs the requested documentation for his “continuous litigation.” Such justification is insufficient to support his motion. “There must be some justification or showing of necessity beyond a mere naked demand for a transcript. While there is a basic right to a free transcript to perfect a timely direct appeal, there is no absolute right to a free transcript just so the prisoner may have it, and some justification for use in a habeas corpus or related proceeding must be shown in order to be entitled to such records in a collateral attack on the sentence.” (Citations and punctuation omitted.) Mydell v. Clerk, Superior Court of Chatham County, 241 Ga. 24 (243 SE2d 72) (1978). We find the same rule applies to a request for arrest and pre-trial records. See id. Additionally, because Buice has failed to set out by affidavit the particular reasons why the documents and records are necessary, that he or his attorney have never previously been supplied copies of the records, and that the records are not otherwise available to him, the trial court properly denied the motion. See id.

2. Buice contends in enumeration 2 that the trial court erred in failing to provide a hearing on his motion thereby violating his rights under the Sixth and Fourteenth Amendments of the United States Constitution and in violation of his rights under the Georgia Constitution. This enumeration is also without merit.

Buice has failed to cite any case authority in support of this enumeration, but rather generally argues constitutional violations. Buice did not request a hearing, and we find no error by the trial court in failing to provide such. Buice had direct access to the lower court, and Mydell provides the proper requirements and procedures for obtaining the documents desired. Buice’s motion was read and considered by the lower court and under the requirements of Mydell, properly denied. Accordingly, the lower court did not err in failing to provide him a hearing on the motion and did not deny him any of his constitutional rights.

Decided May 27, 1994.

Steve H. Buice, pro se.

Daniel J. Porter, District Attorney, Brian K. Wilcox, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Beasley, Presiding Judge.

text:
    A94A0004.
    AVERY et al. v. COLONIAL PIPELINE COMPANY et al.
    (444 SE2d 363)
   Beasley, Presiding Judge.

Like the plaintiff in Jakobsen v. Colonial Pipeline Co., 260 Ga. 565 (397 SE2d 435) (1990), plaintiffs, Avery and others, seek to prevent Colonial Pipeline Company and Plantation Pipeline Company from removing trees, vegetation, and overhang from petroleum pipeline easements which traverse real properties owned by plaintiffs in DeKalb and Fulton Counties. They also seek declaratory judgment, to quiet title, and monetary damages. The trial court granted partial summary judgment in favor of defendants, ruling that they can remove trees, vegetation, and overhang; it reserved the question of damages.

Defendants are engaged in the interstate transport of refined petroleum products by the use of pipelines. Plaintiffs’ predecessors-in-title granted easements to Plantation and to Southeastern Pipeline Company (Colonial’s predecessor-in-interest) for the purpose of constructing and maintaining the pipelines. Plantation’s original right-of-way varies in width from thirty to sixty feet and contains three buried pipelines with diameters of twenty-six inches, ten inches, and fourteen inches. Colonial’s original right-of-way is fifteen feet in width and contains a buried eight-inch line.

These four pipelines transport, on average, more than fifteen million gallons of ignitable refined petroleum each day under high pressure. Ignitable refined petroleum is a hazardous liquid regulated by the United States Department of Transportation’s Office of Pipeline Safety under the Hazardous Liquid Pipeline Safety Act, enacted in 1979. 49 USC § 2001 et seq. Pipeline safety regulations issued by the DOT are codified at 49 CFR Part 195.

Since grant of the pipeline easements in the 1940’s, there has been virtually no effort to keep any easements clear of naturally growing or intentionally planted vegetation, including trees. However, subsequently enacted federal pipeline safety regulations incorporate inspection and maintenance standards requiring pipeline rights-of-way to be maintained so as to have “clear visibility and to give reasonable access to maintenance crews.” See 49 CFR § 195.3. Each operating company is required to maintain a periodic pipeline patrol program to observe: surface conditions on and adjacent to the pipeline right-of-way, indication of leaks, construction activity other than that performed by the company, and any other factors affecting the safety and operation of the pipeline. Other factors, as shown by defendants, are insuring against pipeline encroachments and preventing tree roots from damaging underground pipes in a manner sufficient to cause corrosion.

In 1989, representatives of the Office of Pipeline Safety conducted safety inspections of defendants’ pipeline facilities in DeKalb and Fulton Counties. Defendants were notified by certified letter that they had committed probable violations of the federal regulation requiring each operator to inspect surface conditions on or adjacent to each pipeline right-of-way at least 26 times each year. 49 CFR § 195.412 (a). The areas referred to in the letter include plaintiffs’ properties. The letter stated that the right-of-way was overgrown with large trees and bushes which obscured it to the extent that aerial patrolling was ineffective in determining the surface conditions on or adjacent to the pipeline right-of-way. The letter also stated that failure to correct the circumstances leading to the probable violations would result in enforcement action. See 49 USC § 2007.

As a result, defendants advised plaintiffs that they intended to enter upon the easements and adjacent property for the purpose of “tree cutting and side trimming.” This involves cutting trees and obscuring vegetation growing within the easements and side-cutting overhanging tree limbs and shrubbery to keep the right-of-way clearly visible and to afford ready access to pipeline crews.

Plaintiffs filed the present complaint to enjoin Colonial and Plantation. They answered the complaint and filed requests by way of counterclaims and joint motion to enjoin plaintiffs from preventing defendants from the planned activities. After the court consolidated the interlocutory injunction hearing with trial on the merits, defendants filed a joint motion for summary judgment. It was granted in part: the court authorized defendants to cut trees and vegetation in the easements and to side-cut tree limbs and bushes which overhang the easements without interference from plaintiffs.

1. Plaintiffs contend that they are entitled to a jury determination of the issue of what is reasonably necessary with regard to removal of vegetation from these easements.

In opposition to defendants’ motion for summary judgment, plaintiffs presented expert affidavit testimony that aerial inspection of pipeline easements does not in fact facilitate the detection of leaks and encroachments, that tree roots do not in fact damage pipelines, and that removal of trees and vegetation from easement surfaces in order to engage in pipeline maintenance operations is not in fact necessary.

Plaintiffs thus argue that they have raised material issues of fact as to whether it is reasonably necessary for defendants to tree-cut and side-trim for the purposes sought, primarily aerial inspection. They argue that under Jakobsen, supra, these are jury questions. Both of these arguments fail.

It appears without contradiction from the record that federal regulatory authorities found defendants in probable violation of a pipeline safety regulation and threatened enforcement action if they did not correct the problem of the overgrown rights-of-way. Defendants have an “implied right” under the easements to take the action required of them by federal regulatory laws. Natural Gas Pipeline Co. of America v. Cox, 490 FSupp. 452, 454 (5) (E.D. Ark. 1980).

In Jakobsen, supra, the trial court found that it would be virtually impossible for defendants to inspect surface conditions of their pipeline easements in compliance with federal regulations through ground inspection rather than aerial patrol. The court concluded that under their easements, Colonial and Plantation have the implied right to cut trees and shrubbery on their easements and to side-cut tree limbs and shrubbery which overhang the easements. Accordingly, the court granted an interlocutory injunction in favor of Colonial and Plantation.

On appeal, Jakobsen challenged that part of the order granting defendants the right to side-trim trees overhanging the easements. A four-to-three majority of the Supreme Court confirmed the trial court’s conclusion that the easements impliedly include the right to side-trim trees so that Colonial and Plantation might aerially inspect the pipelines to determine whether they are in need of maintenance, repair, or are otherwise a public hazard. 260 Ga. at 566 (2). The Court noted that the easements expressly give defendants the right to “ ‘cut timber’ ” and to “ ‘do whatever may be requisite for the enjoyment of the rights’ ” contained in the easements. Id. at 565-566.

Consequently, in keeping with the majority opinion in Jakobsen, defendants are entitled, as a matter of law, to remove trees and vegetation from the easements in order to aerially inspect the pipelines and access them. Plaintiffs’ arguments to the contrary find support only in Jakobsen’s dissent.

2. Plaintiffs contend that the trial court improperly relied on the letter from the Office of Pipeline Safety, in that it was inadmissible hearsay.

The letter was not admissible to show that defendants committed probable violations of the pipeline safety regulation. As to that fact, the letter was hearsay. Newport Timber Corp. v. Floyd, 247 Ga. 535, 541 (3) (277 SE2d 646) (1981). However, the letter was admissible to show that defendants had received a warning from federal regulators advising that enforcement action would be taken should they not correct objectionable circumstances. For those purposes, the value of the letter did not depend upon the credibility of the out-of-court author of the letter. Id. at 541, n. 6. “Where evidence is offered ‘to establish the fact that something was said, not the veracity of its content, (it) is admissible to explain conduct and ascertain motives, not as hearsay, but as original evidence.’ [Cit.]” MARTA v. Allen, 188 Ga. App. 902, 905 (2) (374 SE2d 761) (1988); OCGA § 24-3-2.

3. Plaintiffs’ final contention is that the court erred in authorizing the entirely unrestricted removal of vegetation from the easements regardless of need.

The order authorizes defendants to remove trees, vegetation, and overhang from the easements without interference from plaintiffs. While the order does not specify the extent of authorized removal, it does not authorize removal regardless of need. We have held in Division 1 that defendants have a legal right to remove trees, vegetation, and overhang which interferes with aerial inspection of the easements. In compliance with federal regulatory law, defendants also have a legal right to remove trees and vegetation from easement surfaces so as to give reasonable access to maintenance crews. Cox, supra. Defendants have not sought authorization to remove vegetation except as necessary for these purposes, and we do not interpret the order appealed as providing any more extensive authorization than that sought.

Decided May 10, 1994

Reconsideration denied May 31, 1994

Bedford, Kirschner & Venker, Andrew R. Kirschner, for appellants.

Fellows, Johnson, Davis & LaBriola, Henry D. Fellows, Jr., Arnold & Hopkins, Ross Arnold, Gary L. Glancz, Edward T. Floyd, for appellees.

Judgment affirmed.

Andrews and Johnson, JJ., concur.

         Defendants argue that this responsive material was not timely under USCR 6.2, but that rule does not apply to opposing affidavits served by the adverse party prior to the day of a summary judgment hearing. Winchester v. Sun Valley-Atlanta Assoc., 206 Ga. App. 140 (1) (424 SE2d 85) (1992).

       It did not construe the trial court’s order to authorize the removal of trees growing outside the easement area, but only “the trimming of the portions of the trees extending over the easement area.”

       In its 1994 session, the Georgia General Assembly enacted legislation recognizing that “[t]he . . . construction and operation of petroleum pipelines create significant impacts on land, including . . . the permanent and continued clearing of the pipeline path necessary for aerial surveillance, thereby eliminating the possibility of many types of land use on such property, including the growth of trees; and restrictions on other land development on or along the pipeline path that may be inconsistent with the pipeline’s operation and safety. . . .” OCGA § 22-3-70 (3).
      Because petroleum pipelines adversely impact Georgia land in this way and others, the 1994 legislation temporarily suspends the eminent domain rights of petroleum pipeline companies in order to permit a Petroleum Pipeline Study Committee to complete a report and make recommendations to the General Assembly concerning the need for land use controls or restrictions related to petroleum pipelines. See OCGA §§ 22-3-70 (13), (14); 22-3-71; 22-3-72; 22-3-80 (d), (e), (f).

       Nonetheless, under most of the easements, the pipeline companies agreed “to pay any damages to crops, fences and timber, which may arise from laying, maintaining, operating or removing such pipe lines.” As previously stated, the trial court denied defendants’ motion for summary judgment on the issue of damages.
      Under the above-quoted provisions in the easements, the pipeline companies also agreed “to bury pipe lines so that they will not interfere with the cultivation of the land.” However, the words “cultivated land” apply to land used to grow crops, Cowart v. State, 62 Ga. App. 559, 560 (8 SE2d 729) (1940), and it does not appear that crops are being grown on plaintiffs’ properties.


text:
    A94A0539.
    BURCH v. THE STATE.
    (444 SE2d 370)
   Beasley, Presiding Judge.

Appellant was convicted of manufacture of marijuana, OCGA § 16-13-30 (b), and possession of marijuana. OCGA § 16-13-30 (a).

Appellant appeared at his father’s house under the influence of alcohol and drugs. His father asked him to leave but he refused to do so, and his father called the sheriff’s office. Deputy Nobles was dispatched to the scene. In order to prevent appellant from striking his father, Nobles sprayed appellant with mace and appellant ran into the woods. Nobles radioed Deputy Thompson for assistance. Appellant’s father told the deputies appellant was staying at a nearby campsite, so Thompson went there to look.

Thompson is a certified law enforcement officer with special training in identification of marijuana plants. He has seized or seen growing approximately 10,000 such plants. At the campsite, he seized a clear plastic bag in front of appellant’s tent. It contained a substance which from sight and smell appeared to be marijuana. He also seized four or five plants growing in a tomato can because they appeared to be marijuana. From inside the tent he seized other bags containing what appeared to be marijuana. Next to some of it, he found planting soil and lime, which are used to grow marijuana. He put the can and plants in a temporary evidence locker.

An analyst with the State Crime Lab testified that, so as not to report false positives, the crime lab performs three tests on marijuana: thin-layer chromatography, microscopic evaluation, and a Duquenois-Levine test. All three tests must be positive before the crime lab can positively identify a substance as marijuana. The analyst testified that the plant sample she received was “fairly young,” she could not get “a very good sample, amount-wise,” and only one or two of the tests was positive. Consequently, she testified that the tests she performed indicated that the plant sample was marijuana, but she could not positively identify it as marijuana. All three tests performed on the leafy material in the plastic bags were positive for marijuana.

After cross-examining the last State’s witness, appellant moved to suppress the evidence seized at the campsite, on the ground that the warrantless search was illegal. The State countered that any such motion was untimely. The court admitted the evidence. It also denied appellant’s motion for a directed verdict of acquittal on the charge of manufacturing marijuana.

1. Appellant’s motion to suppress was too late and falls as did the appellant’s in Dixson v. State, 191 Ga. App. 410 (1) (382 SE2d 357) (1989):

“Appellant made his suppression motion orally, and for the first time, during the trial. OCGA § 17-5-30 (b) requires that the motion ‘shall be in writing and state facts showing that the search and seizure were unlawful.’ ‘Although the Code does not provide for a specific time when such motion must be filed, it is clear that it shall be filed before trial as the “purpose is to avoid the interruption of the trial for the purpose of investigating the collateral issue of the legality of the means by which the evidence was obtained.” (Cits.) . . . “(A) failure to interpose a timely motion to suppress . . . constitutes a waiver of the constitutional guarantee with respect to the search and seizure in question.” (Cits.) . . . And, motions made during trial are properly held to be dilatory. (Cit.)’ [Cit.] Since appellant did not show that he became aware of the allegedly illegal seizure at such a late hour that a written motion was impossible ([cit.]), the trial court did not err in its ruling.”

Another reason for insisting on timeliness is that after the jury has heard the evidence, it would be nearly impossible, at best, for the evidence to be excluded from their deliberations if such a motion were successful.

2. The court did not err in denying appellant’s motion for directed verdict of acquittal on the charge of manufacturing marijuana.

The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), is the proper one for us to use when the sufficiency of the evidence is the ground for challenging the overruling of a motion for directed verdict. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984). That test requires the evidence to be reviewed in the light most favorable to the prosecution. Id.

Decided May 11, 1994

Reconsideration denied May 31, 1994

J. Kelly Brooks, John B. Adams, for appellant.

H. Donnie Dixon, Jr., District Attorney, Lucy J. Bell, Alexander J. Markowich, Assistant District Attorneys, for appellee.

Without objection, Deputy Thompson testified that, based on his training and experience, the plants appeared to be marijuana. The analyst with the crime lab testified that tests performed by her indicated that the plant sample she tested was marijuana. The jury was authorized to find that the reason the three tests were not positive was because the plants were young, had deteriorated, and the test sample was small. Circumstantial evidence in the form of materials used to grow marijuana was found in the vicinity of the plants.

Cumulatively, this evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that these were marijuana plants. See Partain v. State, 139 Ga. App. 325, 326 (5) (228 SE2d 292) (1976), aff’d 238 Ga. 207 (232 SE2d 46) (1977); see generally Annotation, Sufficiency of Prosecution Proof that Substance Defendant is Charged with Possessing or Selling, or Otherwise Unlawfully Dealing in, is Marijuana, 75 ALR3d 717 (1977); compare Osborn v. State, 161 Ga. App. 132, 138 (7) (291 SE2d 22) (1982).

Judgment affirmed.

Andrews and Johnson, JJ., concur.


text:
    A94A0559.
    DUNCAN v. THE STATE.
    (444 SE2d 583)
   Beasley, Presiding Judge.

Duncan appeals from his conviction on one count of trafficking in cocaine, OCGA § 16-13-31, two counts of possession and sale, OCGA § 16-13-30 (b), and one count of possession with intent to distribute, OCGA § 16-13-30 (b). The latter count merged with Count 1 for the purpose of sentencing.

Duncan was arrested when the house in which he resided was searched pursuant to a warrant. Before the search, undercover officers had twice purchased crack cocaine from him, resulting in the two counts of possession and sale. The search uncovered 245 grams of cocaine in a back bedroom.

1. Duncan asserts that his motion to suppress should have been granted because the information supplied in the affidavit for the search warrant was stale and did not show sufficient reliability of informants.

In considering such affidavits, “ ‘ “the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth . . . before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that the contraband . . . will be found in a particular place. . . . (Cit.)” . . . ’ [Cit.]” Hunter v. State, 198 Ga. App. 41, 43 (1) (400 SE2d 641) (1990). “ ‘Decisions on questions of fact and credibility made by the trial court at a suppression hearing must be accepted unless clearly erroneous. (Cits.)’ [Cit.] ‘As a reviewing court, our duty is simply to ensure that the magistrate or judge had a substantial basis for concluding that probable cause existed. (Cits.) . . . “ ‘[T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded . . . warrants.’ (Cits.)” . . .’ [Cit.]” Id.

The affidavit was executed on February 25, 1992, and recited that an undercover officer had bought cocaine from Duncan approximately four months before the affidavit was prepared, at a location other than the subject house. It also recited that a confidential informant had reported that Duncan had since moved to the premises, and that this informant had been in the house within the last three days and reported observing cocaine and firearms. The affiant reported that this informant had proved reliable in the past, both to her and to other officers.

The affiant also reported that a second informant, within the past three days, had been taken to the area of the premises. There he was searched, given marked funds, and observed going into the house. He emerged with cocaine, which he stated had been purchased in the house. The affiant stated that she had known this second informant about two years and that the informant was gainfully employed, had no criminal record, did not appear to be a drug user, and had provided very reliable and useful information over the past two years, both to affiant and another officer.

The affiant also reported that approximately a month before executing the affidavit, another officer had entered the house and purchased cocaine from a man introduced as Harold Duncan. Assuming that both undercover purchases were stale in and of themselves, recent information from reliable informants that contraband would be found on the premises provided a substantial basis for concluding that probable cause existed, particularly considering the total circumstances.

“ ‘At the hearing on the motion to suppress, there was no evidence that the affidavit upon which the search warrant was issued contained deliberate falsehoods or had been made with reckless disregard for the truth or that the affiant had consciously omitted material information which, if it had been included in the affidavit, would have been indicative of the absence of probable cause. (Cits.)’ [Cits.] ‘In the absence of such evidence, the presumption of validity of an affidavit executed in support of a search warrant must stand. (Cit.)’ [Cit.]” Dorminey v. State, 205 Ga. App. 806, 807 (1) (423 SE2d 698) (1992).

2. Duncan contends that the trial court erred when it denied his motion to reveal the identity of the informants. They were not present at the time of arrest but had dealt with defendant in the days immediately before the execution of the search warrant. “The trial court did not err in refusing to require the State to reveal the identities] of the confidential informant[s] inasmuch as [they were] not . . . participant[s] in, or . . . witness to, the possession of cocaine with intent to distribute charge [s] that [were] brought against defendant at the time of his arrest. [Cit.]” Lawrence v. State, 206 Ga. App. 404, 405 (2) (425 SE2d 411) (1992). Nor were the informants connected in any way to the other charges upon which Duncan was found guilty. See OCGA § 24-9-27.

3. Duncan enumerates as error the State’s failure to introduce the search warrant as evidence on the motion to suppress. This issue was not raised at trial. “ ‘It is well established law that enumerations of error which raise questions for the first time on appeal present nothing for decision.’ . . . [Cit.]” Moreno v. State, 204 Ga. App. 463, 464 (3) (419 SE2d 735) (1992).

4. Duncan contends that he should have been awarded a directed verdict on the possession with intent to sell and trafficking counts because the only proof of actual or constructive possession of the cocaine was his proximity to the drugs. To the contrary, testimony at trial revealed that during the search Duncan emerged from the back bedroom with bloody hands, that the drugs were found between a broken-out window and exterior bars in that bedroom, that blood was found below the window, that no one else came from this room, and that bills bearing his name were found in the house.

5. Duncan also contends that the trial court erred in allowing the officer who applied for the search warrant to testify as to the factual basis of the warrant, including a cocaine sale that was not one of the crimes charged, arguing that this should have been ruled inadmissible hearsay. The objections to testimony about any information that might have come from confidential informants were sustained.

The only admitted testimony touching upon the basis of the warrant that is arguably hearsay concerned the arrest of a man, sometime prior to the search, who had just exited the subject house. The man stated to the officer that he had bought the cocaine in his possession at the house, a statement the officer repeated in the course of the State’s questioning about the reasons for the “other parties” clause in the search warrant. Defendant had initiated questioning about the “other parties” clause and cannot now complain that it was addressed on redirect. See Hamilton v. State, 210 Ga. App. 496, 498-499 (436 SE2d 500) (1993); Beasley v. State, 202 Ga. App. 349 (1) (414 SE2d 663) (1991). Even if admission of the statement was error, it was harmless. The officer testified that the arrested man could not identify Duncan as the person who sold him cocaine and there was a substantial amount of independent evidence of each crime for which Duncan was convicted.

6. Duncan also claims that the court should have given his written jury charge on the State’s duty to rebut affirmative defenses. The requested charge included the statement that “alibi, mistaken identity, equal access for other persons to commit the alleged crimes and mere presence of the defendant at the alleged scene of a crime are affirmative defenses raised by the defendant in this case.” Assuming the charge is a correct statement of the law, which is doubtful (see, e.g., OCGA § 16-3-28; Jones v. State, 205 Ga. App. 711, 713 (4) (423 SE2d 393) (1992)), it was not adjusted to the facts. For one thing, no evidence suggesting alibi was introduced or could be inferred. “A request to charge itself must be correct, legal, apt, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” (Emphasis in original.) Smith v. State, 209 Ga. App. 540, 544 (5) (433 SE2d 694) (1993). The trial court accurately charged the jury on the State’s burden and specifically addressed issues of identity, equal access, and mere presence.

7. Duncan also asserts that his requested jury charges on circumstantial evidence should have been given, claiming that the only evidence of possession of the drugs found was circumstantial. The trial court did charge the jury on circumstantial evidence. The charge given covers all the principles of law in the requested charge and does not constitute error. Pierce v. State, 209 Ga. App. 366, 368 (3) (433 SE2d 641) (1993).

8. Duncan claims that his requested jury charge on possession with intent to distribute should have been given. The court did give this charge, only correcting Duncan’s charge as to grammar. Id.

9. Duncan also claims that it was error not to conduct a pre-sentence investigation, citing OCGA § 17-10-2. He has apparently confused this with the pre-sentence hearing required by OCGA § 17-10-2. The hearing was conducted and Duncan presented witnesses and argument. The hearing is all that is mandated by law and this enumeration has no merit.

10. Finally, Duncan asserts that the court erred in imposing sentence of 35 years to serve because it reflected a punishment imposed upon him for exercising his right to trial rather than accepting the State’s earlier plea offer; it included a recommendation of 15 years to serve, the minimum. OCGA § 16-13-31 (a) (1) (B). He points to no evidence in the record that would suggest that the sentence was given for any such reason, and we find none. The mere fact that Duncan received a longer sentence after trial than the one the State would have recommended had he pleaded guilty does not per se mean that the sentence actually imposed was caused by any improper considerations. “It is not error for the trial judge to impose a greater sentence upon a defendant after he has heard the evidence at trial than he might have imposed in conjunction with a guilty plea. [Cit.]” Arnold v. State, 163 Ga. App. 94, 96 (5) (292 SE2d 891) (1982).

Decided May 5, 1994

Reconsideration denied May 31, 1994

Alan Eisenstein, for appellant.

J. Tom Morgan, District Attorney, Fran W. Shoenthal, Barbara B. Conroy, Assistant District Attorneys, for appellee.

The sentence imposed was well below the maximum. OCGA §§ 16-13-30 (d); 16-13-31 (g). “ ‘OCGA § 17-10-1 authorizes the trial court to sentence a defendant to any amount of time within limits provided by law. “The (sentence) in this case (was) within the statutory limits . . . and any complaints regarding the (sentence) should have been addressed to the appropriate sentence review panel. (Cit.)” (Cit.)’ [Cit.]” Williams v. State, 208 Ga. App. 716 (1) (431 SE2d 469) (1993).

Judgment affirmed.

Andrews and Johnson, JJ., concur.


author: Smith, Judge.

text:
    A94A0081.
    KENNEDY et al. v. PORTER.
    (444 SE2d 818)
   Smith, Judge.

Thomas C. Kennedy and others filed a personal injury complaint against Reginald D. Porter. The trial court eventually dismissed the complaint based on the failure of plaintiffs to serve Porter within the applicable limitation period. Finding no such failure, we reverse.

The automobile collision giving rise to appellants’ complaint occurred on August 5, 1986. Porter concedes that the statute of limitation was tolled upon his entry into military service in February 1988. Appellants filed their complaint on July 29, 1988. On July 30, 1988, a sheriff’s entry of service was filed revealing that Porter was not served because he was at that time stationed in England with the United States Air Force. Porter points out that appellants then attempted to serve him by serving his grandmother, purportedly in accordance with OCGA § 9-11-4 (d) (7). However, appellants do not claim on appeal that service of process was satisfied in this manner, and we need not consider this attempt to serve Porter in order to resolve this appeal.

On November 6, 1989 appellants filed a “recast complaint.” An acknowledgment of service by Porter’s attorney was also filed on that date, stating as follows: “The undersigned counsel, of record as attorney of record for the defendant herein, hereby acknowledges receipt of the plaintiffs’ recast complaint and waives service and further process, subject to the defenses previously asserted, including but not limited to, the defense of statute of limitations.”

Appellants claim that Porter was served within the applicable limitation period as evidenced by his attorney’s acknowledgment of service of the “recast complaint” in November 1989, and not on September 14, 1992, as found by the trial court. We agree. In reaching this conclusion, we first note that this is not the usual case in which the complaint has been dismissed due to untimely service of process and the subsequent appeal turns on “whether the plaintiff[s] showed that [they] acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible” as a matter of law. Childs v. Catlin, 134 Ga. App. 778 (216 SE2d 360) (1975). Porter’s motion to dismiss focuses exclusively on the sufficiency of service based on the attempted substituted service on Porter’s grandmother. Porter presented no argument below, and likewise presents none on appeal, with respect to the diligence exercised by appellants prior to the acknowledgment of service made by Porter’s counsel on Porter’s behalf filed on November 6, 1989 — over three years and two months after the cause of action arose. Indeed, Porter concedes that OCGA § 9-3-33 was tolled during his period of military service. The timeliness of service is therefore not at issue.

OCGA § 9-11-4 (d) (7) provides that service may be made “by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.” Moreover, OCGA § 9-10-73 provides that “[t]he defendant may acknowledge service ... by a writing signed by . . . someone authorized by him.” Porter has not in any way challenged the authority of his counsel to acknowledge service on his behalf, and his counsel is estopped from doing so. See generally Newell v. Brown, 187 Ga. App. 9 (369 SE2d 499) (1988).

Decided May 16, 1994

Reconsideration denied June 1, 1994

Beauchamp & Associates, William Eckhardt, for appellants.

Burt & Burt, Hilliard P. Burt, Divine, Wilkin, Raulerson & Fields, E. B. Wilkin, Jr., R. Kelly Raulerson, for appellee.

We reject Porter’s interpretation of the “recast complaint” served on his attorney in November 1989 as no more than an acknowledgment of an amendment to the appellants’ original complaint which was never served. While it is true that the Civil Practice Act does not specifically provide for “recast complaints,” but merely for amendments to complaints, OCGA § 9-11-15 (a), we fail to see the significance of this distinction. Porter’s attorney was served with the entire complaint as amended pursuant to OCGA § 9-11-15 (a). We are aware of no authority for the proposition that appellants could amend the original complaint under OCGA § 9-11-15 (a) only after Porter was served. We are likewise unaware of any authority for the proposition that OCGA § 9-11-4 (d) mandates that Porter be served with a copy of the original, unamended complaint rather than the “recast complaint” to which he must ultimately respond. Such a rule would serve no other purpose than to create a trap for the unwary plaintiff.. Since Porter was properly served, as evidenced by his counsel’s acknowledgment of service, the trial court erred in dismissing appellants’ complaint.

Judgment reversed.

Pope, C. J., and McMurray, P. J., concur.

       “ ‘Section 205 (50 USCA, Appendix, § 525) of the Soldiers’ and Sailors’ Civil Relief Act, as amended, provides for a tolling of statutes of limitations “by or against any person in military service” during his or her period of military duty. . . . Unlike 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.’ [Cit.]” Newman v. Newman, 234 Ga. 297, 298 (216 SE2d 79) (1975).


author: McMurray, Presiding Judge.

text:
    A94A0244.
    HOWELL v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (444 SE2d 830)
   McMurray, Presiding Judge.

Plaintiff Howell filed this action predicated upon 42 USC § 1983 against defendant Metropolitan Atlanta Rapid Transit Authority seeking damages for harassment, assault, and false arrest. Plaintiff, who at the time of the incidents involved was an employee of defendant, alleges via his amended complaint that a series of incidents occurred in which he was approached, harassed and assaulted by agents and employees of defendant, primary transit system police officers.

Decided May 17, 1994

Reconsideration denied June 1, 1994

Frank Howell, pro se.

David R. Autry, for appellee.

Plaintiff’s evidence at trial consisted of a chronicling of the incidents alleged in the complaint. At the close of plaintiff’s evidence, defendant moved for a directed verdict predicated on Monell v. Dept. of Social Services of N.Y., 436 U. S. 658 (98 SC 2018, 56 LE2d 611), arguing that there had been no evidence introduced concerning the policies or customs of defendant. A second ground for the motion went to an alleged failure to prove damages. Defendant’s motion for directed verdict was granted and plaintiff appeals. Held:

“The record is barren of any evidence of ‘implementation of an intentional policy or a constitutional deprivation resulting from an intentionally corrupt or impermissible policy’ so as to find a cause of action under 42 USC § 1983.” Holloway v. Rogers, 181 Ga. App. 11, 13 (2) (351 SE2d 240). See also Monell v. Dept. of Social Services of N.Y., 436 U. S. 658, supra; Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 304 (4), 305 (357 SE2d 569); Poss v. City of North Augusta, S.C., 205 Ga. App. 894, 895 (2) (424 SE2d 73); Alford v. Osei-Kwasi, 203 Ga. App. 716, 721 (3), 722 (418 SE2d 79); Pinkston v. City of Albany, 196 Ga. App. 43, 47 (2) (395 SE2d 587). Nor do we find any support for plaintiff in the decision of Pembaur v. Cincinnati, 475 U. S. 469 (106 SC 1292, 89 LE2d 452). See Armour v. Davidson, 203 Ga. App. 12, 13 (2) (416 SE2d 92). The trial court did not err in granting defendant’s motion for directed verdict.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


text:
    A94A0406.
    A94A0408.
    FLETCHER v. THE STATE. GARRARD v. THE STATE.
    (445 SE2d 279)
   Smith, Judge.

Kenneth A. Fletcher and Joseph R. Garrard appeal the trial court’s denial of their motions to dismiss and pleas in bar pursuant to OCGA § 17-7-170 and on the grounds of double jeopardy. During the March 1992 term of court, appellants and others were indicted by the Upson County grand jury on multiple counts of theft by taking and false statements stemming from sales of timberland. On July 31, 1992, still within the March term, appellants and others were indicted under the Georgia RICO statute, OCGA § 16-14-4. The appellants filed demands for trial on one or more of the indictments, primarily during the March term. In the following term of court, appellants and other defendants filed various motions to quash and pleas in abatement attacking the indictments. On October 26, 1992, the trial court entered an order granting the motions to suppress evidence and quash the indictments made by the defendants, including appellants, and the State appealed. In State v. Adams, 209 Ga. App. 141 (433 SE2d 355) (1993), this court reversed the trial court’s order quashing the indictments and declined to consider the order suppressing evidence. The remittitur was made a judgment of the trial court on August 9, 1993.

The March 1993 term began on March 15, 1993; the August 1993 term began on August 16. Appellants’ motions for discharge and acquittal were denied on September 28, 1993, during the August term.

1. Appellants contend they are entitled to acquittal under OCGA § 17-7-170, which provides as follows: “Any person against whom a true bill of indictment or an accusation is filed with the clerk for an offense not affecting his life may enter a demand for trial at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter. . . . (b) If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.”

As a preliminary matter, we note that the action of the appellants in moving to quash the indictments tolled their trial demands. A defendant may waive his right to automatic discharge under OCGA § 17-7-170 by any affirmative action on his part or on the part of his counsel which results in a continuance of the case to a time outside the period of the demand. This includes filing a motion that is granted and appealed by the State. State v. Waters, 170 Ga. App. 505, 508 (3) (317 SE2d 614) (1984); see Lusher v. State, 192 Ga. App. 606, 608-609 (386 SE2d 364) (1989).

Six days remained in the March 1993 term on August 9, 1993, the date the remittitur was made the judgment of the trial court. Appellants contend that the March term constituted one of the two terms during which they were required to be tried under OCGA § 17-7-170, that the term in which the demand was made constituted the other, and that their time therefore has run and they are entitled to automatic acquittal.

This contention is without merit. As noted in Ramirez v. State, 196 Ga. App. 11 (395 SE2d 315) (1990), we must consider the practical reality of the trial and appellate processes. OCGA § 17-7-170 is intended to prevent the “ ‘uncertainty, emotional stress, and the economic strain of a pending prosecution indefinitely. . . .’ [Cit.]” Id. However, “it affords the State a reasonable time frame in which to prepare and try its case against the accused. This would be no less true in a retrial after reversal on appeal.” Id. at 12.

The construction proposed by appellants would create insurmountable problems not only for the courts but for other defendants awaiting trial. “Under appellant’s construction, the State could not responsibly rely on the time period provided by the statute to originally try a defendant. Pragmatically it would have to ready its case for trial in a truncated period, to conserve a cushion of time in case of the necessity of retrial following a reversal on appeal. This would contravene the express terms of the statute and be an unworkable criminal trial process. Subsequent convictions and subsequent successful appeals would preclude retrial altogether as timely impossible. Of utmost importance, retrial only within the tolled remaining days, be it one, ten, or forty-six, would interrupt the calendar already set and disrupt the preparations of others who were entitled to a speedy trial. Having sought a new trial, defendant must await his turn.” Id.

“The statute applies to outright dereliction by the State in failing to provide a speedy trial where one could have been had; it does not operate to force the State to impanel a jury for one defendant who makes a late demand. This sort of ‘housekeeping’ would turn the courts upon their heads.” West v. State, 193 Ga. App. 117, 118 (387 SE2d 44) (1989). Likewise, the operation of the Code section and the administration of the trial court’s calendar should not turn upon the coincidental timing of a return of remittitur.

The reasoning of Ramirez and West is equally applicable to an appeal and reversal of a defendant’s successful plea in bar or motion to quash an indictment. In both situations, the rulings made on appeal may alter substantially the legal or factual posture of the case and affect the parties’ preparation for trial. Particularly where appellants’ motions were not made until the second term of court after their demands for speedy trial were filed, the appeal and reversal truncate the time for trial preparation to the vanishing point. Having set in motion the plea in bar and the ensuing appeal, appellants must await their turn.

Moreover, a term or remainder of a term in which no juries are impaneled and qualified to try the case is not counted for purposes of OCGA § 17-7-170. Kersey v. State, 191 Ga. App. 847 (383 SE2d 348) (1989); Kaysen v. State, 191 Ga. App. 734, 735 (382 SE2d 737) (1989). While traverse jurors were impaneled earlier in the March term and dismissed after two weeks’ service, the clerk of the Upson County Superior Court testified that there were no traverse jurors impaneled and qualified to try appellants in the final six days of the March term, in August 1993.

Appellants contend, apparently on the basis of State v. McDonald, 242 Ga. 487 (249 SE2d 212) (1978), that jurors could have been recalled to duty and thus were impaneled and qualified. The clerk originally provided an affidavit for appellants which stated that traverse jurors could have been recalled to duty, but she testified before the trial court that this was in error because she had confused grand jurors with traverse jurors: “Grand jurors can be recalled, but traverse jurors are not recalled. They’re assigned by a new order.” Under questioning by the trial court, the clerk testified that the traverse jurors were in fact released. Traverse jurors accordingly were not “impaneled and qualified to try” appellants during the six days of the March 1993 term after the remittitur was returned.

“Because the penalty imposed by this statute against the state is so great, it must be strictly construed.” Day v. State, 187 Ga. App. 175, 176 (369 SE2d 796) (1988). Appellants’ motions for acquittal under OCGA § 17-7-170 were premature, and the trial court did not err in denying them.

2. Appellants also contend that they are entitled to a dismissal on the basis of double jeopardy. They contend, and the State denies, that the crimes charged in the RICO indictment were known to the prosecutor at the time the May indictments issued. However, we need not reach this issue because a defendant is not placed in jeopardy until, in a court of competent jurisdiction with a sufficient indictment, he has been arraigned, has pled, and a jury has been impaneled and sworn. Geckles v. State, 177 Ga. App. 70 (338 SE2d 473) (1985). Where a jury has not been impaneled and sworn to try the defendant, he has not been placed in jeopardy. Teal v. State, 203 Ga. App. 440, 443 (2) (a) (417 SE2d 666) (1992).

Judgment affirmed in Case Nos. A94A0406 and A94A0408.

Pope, C. J., and McMurray, P. J., concur.

Decided May 16, 1994

Reconsiderations denied June 1, 1994

Mullins & Whalen, Nancy A. Bradford, for Fletcher.

Virgil L. Brown & Associates, Virgil L. Brown, Bentley C. Adams III, Eric D. Hearn, for Garrard.

Michael J. Bowers, Attorney General, Michael E. Hobbs, Deputy Attorney General, Joe Chambers, Patrick D. Peering, for appellee.

       There are three terms of superior court in Upson County, beginning on the third Monday in March and August and the first Monday in November. OCGA § 15-6-3 (19) (D).

       Appellants filed one or more trial demands in the March 1992 term, with the exception of Fletcher, who filed a demand on the May indictment in the August term, which began on Monday, August 18, 1992. Garrard does not provide a record reference to a trial demand on the RICO indictment, and we have found none.

       We note that at least one appellant made an explicit written request to the clerk of this court that the remittitur be returned within the almost-expired term, citing the pending speedy trial demand.

       Appellants have not enumerated as error the trial court’s admission of the clerk’s oral testimony at the October 7, 1993 motions hearing. We note, however, that the trial court granted the State’s request to supplement the record on appeal pursuant to OCGA § 5-6-41. See Deadwiley v. State, 192 Ga. App. 229 (384 SE2d 221) (1989).


author: Johnson, Judge.

text:
    A94A0455.
    GENERAL MOTORS ACCEPTANCE CORPORATION v. NEWTON et al.
    (444 SE2d 805)
   Johnson, Judge.

Herb Newton owned and operated Freeway Buick-GMC Truck, Inc., formerly Freeway Buick, Inc., a motor vehicle dealership. General Motors Acceptance Corporation (GMAC) made two separate loans to Freeway Buick, Inc., one for the acquisition of business assets and the other for the acquisition of motor vehicle inventory. Freeway Buick, Inc., executed separate promissory notes and security agreements for each loan. Newton and his wife, Beverly Newton, personally guaranteed both of Freeway Buick, Inc.’s promissory notes. GMAC also made a real estate loan to the Newtons, who then leased the property to Freeway Buick, Inc. The Newtons executed a promissory note and a deed to secure debt on the real estate in favor of GMAC. The Newtons’ security deed and a cross-collateralization agreement executed by the parties provide that the real estate purchased by the Newtons secures not only the loan made to the Newtons, but also the loans made to Freeway Buick, Inc.

The Newtons defaulted on their real estate loan. GMAC foreclosed on and sold the property pursuant to the security deed executed by the Newtons. The superior court denied GMAC’s application for confirmation of the foreclosure sale, finding that the property was sold for less than its fair market value. This court affirmed that finding. See Gen. Motors Acceptance Corp. v. Newton, 207 Ga. App. 700 (429 SE2d 120) (1993).

Freeway Buick, Inc., also defaulted on its loans. GMAC sold the business assets and motor vehicle inventory securing those loans. GMAC filed the instant lawsuit against Freeway Buick, Inc., and the Newtons, as personal guarantors, seeking payment of the balances still due under the business assets and inventory loans. GMAC and the Newtons filed cross-motions for summary judgment on the issue of whether GMAC’s claim against the Newtons is a deficiency action barred by OCGA § 44-14-161. The trial court granted the Newtons’ motion and denied GMAC’s motion. Citing C. K. C., Inc. v. Free, 196 Ga. App. 280 (395 SE2d 666) (1990), the court found that the real estate loan made to the Newtons and the two loans made to Freeway Buick, Inc., constitute a single debt. Consequently, the trial court concluded, GMAC’s claim against the Newtons is a deficiency action which is barred by GMAC’s failure to obtain confirmation of the foreclosure sale under the deed to secure debt and real estate note. GMAC appeals.

The trial court’s ruling is erroneous. “The two notes at issue in C. K. C., Inc. were both purchase money promissory notes executed at the same time and secured by a single deed to secure debt on the property purchased. Thus, quoting Murray v. Hasty, 132 Ga. App. 125, 127 (1) (207 SE2d 602) (1974), this court concluded the two notes were inextricably intertwined and not independent of each other. Even though the purchase money loan had been broken into two separate notes, there was but one debt which was secured by one security deed.” (Citation, punctuation and emphasis omitted.) Clements v. Fleet Finance, 206 Ga. App. 736, 737-738 (426 SE2d 910) (1992). Unlike C. K. C., Inc., and contrary to the trial court’s conclusion, the instant case does not involve a single loan to a single debtor broken into several separate notes. GMAC made one loan to the Newtons for the purchase of the real estate itself. There is no evidence that this real estate loan was somehow divided into three separate notes executed by the Newtons; rather, the other two loans were made to a completely different legal entity, Freeway Buick, Inc., which executed its own promissory notes and security agreements. Moreover, GMAC made the loans to Freeway Buick, Inc., for purposes distinct from the purchase of the real property, i.e., for the purchase of business assets and inventory.

Freeway Buick, Inc.’s debts are not the deficiency remaining from the foreclosure sale under the Newtons’ security deed. Although GMAC is barred from recovering the deficiency owed under the Newtons’ real estate note because of the lack of confirmation of the foreclosure sale, it is not barred from bringing this suit against the Newtons in their capacity as personal guarantors of the independent, separate obligations of Freeway Buick, Inc. The lack of confirmation merely had the effect of rendering Freeway Buick, Inc.’s debts, so far as they were secured by the real estate, unsecured obligations. See Devin Lamplighter v. American Gen. Finance, 206 Ga. App. 747, 748 (1) (426 SE2d 645) (1992); Kennedy v. Trust Co. Bank of Gwinnett County, 160 Ga. App. 733 (288 SE2d 87) (1981). Because GMAC’s action against the Newtons is not barred by OCGA § 44-14-161, the trial court erred in granting summary judgment to the Newtons and denying partial summary judgment to GMAC.

Decided March 30, 1994

Reconsideration denied June 1, 1994

McCullough & Payne, John G. McCullough, Michael D. Payne, for appellant.

Phears & Moldovan, H. Wayne Phears, Darrin R. Schutt, for appellees.

Judgment reversed.

Beasley, P. J., and Andrews, J.; concur.

       NCNB originally made the real estate loan to the Newtons and the two separate loans to Freeway Buick, Inc. The Newtons and Freeway Buick, Inc. refinanced their property with GMAC, fully satisfying the loans made by NCNB.