author: Smith, Judge.

text:
    A96A2352.
    SPEARMAN v. GEORGIA BUILDING AUTHORITY.
    (482 SE2d 463)
   Smith, Judge.

In December 1990, Maxie Ann Spearman allegedly slipped and fell in a liquid substance while she was walking between parked vehicles in a parking garage owned by the Georgia Building Authority (GBA). She filed this action against GBA alleging that she suffered injuries as a result of GBA’s negligence. The case was tried to a jury, which found in favor of GBA. Spearman appeals, enumerating as error the trial court’s charge concerning expert testimony and also the admission of an alleged prior inconsistent statement. We conclude that the court’s charge was correct and that admission of the statement was not error, and we affirm.

1. Spearman first complains that the trial court erroneously failed to instruct the jury on the significance of privately published industry standards referred to by expert witnesses. Spearman’s requested charge states: “Expert testimony regarding the standard of care is not limited to what may be based upon a published rule or regulation. You may consider expert testimony on this point whenever the witness is shown to be qualified, even if other experts disagree. Expert testimony may incorporate reference to statutes, ordinances, regulations and privately set guidelines, and such may be considered as illustrative of ordinary negligence. However, it is not necessary for there to be a specific violation of a written code or standard in order for there to be a failure to exercise ordinary care.”

At trial, expert testimony was in conflict concerning measurement of the coefficient of friction required for safe walking surfaces. Spearman’s expert, John Templer, testified that .5 is accepted as a safe coefficient of friction for a concrete walking surface, regardless of whether the surface is wet or dry. On cross-examination, when asked whether a written standard exists for the coefficient of friction on a wet surface, Templer stated that he would “hedge” his reply. He admitted that the national standard for measuring the coefficient of friction is that of the American Society for Testing and Materials (ASTM) and that the ASTM standard “doesn’t talk about wet or dry.” On the other hand, he also testified, without citing to a specific standard, that ASTM standards do exist for testing wet surfaces in a bathtub.

Four years after Spearman fell, Templer measured the coefficient of friction in the parking garage. He tested two “spots” on the concrete floor in the general area of Spearman’s fall. He performed “dry” and “wet” tests of those two areas. When he took measurements on the dry concrete floor at those two spots, Templer found the coefficient of friction to be greater than .5, a measure he considered satisfactory. Upon performing tests on wet concrete, Templer found the coefficient of friction to be greater than .5 at the first spot but between .23 and .28 at the second spot, which was “extremely slick” in his opinion. He performed similar tests on other walking surfaces of the garage and found the coefficient of friction to be less than .5 when tested both dry and wet. He found other “extremely slick” areas in the garage and described them as being comparable to the slickness of glass.

GBA’s expert, Daniel Sheehan, testified that he too measured the coefficient of friction of the concrete floor in the general area where Spearman fell. Unlike Templer, who testified that a coefficient of friction of .5 whether measured dry or wet is accepted as a safe coefficient of friction, Sheehan testified that the “industry accepted standard is a static coefficient of friction of .5 on a walkway surface tested in a dry condition.” (Emphasis supplied.) He testified that no standard exists for performing a wet test on a walkway surface. He did admit that the machine he- used to measure the surface could yield higher results than the machine used by Templer. Sheehan took several measurements on dry concrete and found no readings below .5.

Spearman maintains that a cautionary jury instruction regarding both “offensive” and “defensive” use of privately published standards is important to protect plaintiffs and defendants from potential abuses of privately promulgated industry standards. She argues that such an instruction “is necessary to avoid having jurors misled into believing that violation of one party’s interpretation of a privately promulgated industry standard constitutes negligence as a matter of law, or on the other hand, misled into believing that compliance with another party’s interpretation of such a private standard bars tort recovery.”

The trial court did not err in refusing to give the requested instruction. Among other requirements, a charge must be adjusted to the evidence and “embody a correct, applicable and complete statement of law, legal and perfect in form.” (Citations and punctuation omitted.) Shilliday v. Dunaway, 220 Ga. App. 406, 410 (7) (469 SE2d 485) (1996). Spearman’s requested charge was not a neutral one that would have instructed the jury on both “offensive” and “defensive” use of privately published standards. Instead, the charge would have instructed the jury that violation of private standards could be illustrative of negligence and that a violation of the standard of care could be proved even in the absence of such published standards. The requested charge ignores the law in Georgia that “violation of . . . privately set guidelines, although admissible as illustrative of negligence, does not establish negligence.” (Emphasis supplied.) Manley v. Gwinnett Place Assoc., 216 Ga. App. 379, 380-381 (2) (454 SE2d 577) (1995). See also Luckie v. Piggly-Wiggly Southern, 173 Ga. App. 177, 178 (1) (325 SE2d 844) (1984). Because the charge was not a complete statement of the law with regard to privately promulgated guidelines and was not, as suggested by Spearman, one instructing the jury on both the “offensive” and “defensive” use of such guidelines, the trial court did not err in refusing to give it.

In addition, it is incumbent on one alleging error to show that the error is harmful. See generally Thompson v. Hardy Chevrolet &c., 203 Ga. App. 499, 505 (9) (417 SE2d 358) (1992). Spearman has failed to do this. She maintains that failure to give the charge “allowed a substantial likelihood of juror confusion, leaving the jury with the incorrect impression that ASTM standards would have force of law, and that a walking surface that complies with ASTM standard under dry testing only would necessarily satisfy all requirements of law.” We disagree. Spearman’s contention is mere speculation. The testimony reveals no significant danger that the jury was confused or could have believed ASTM standards were elevated to having “the force of law.” In fact, the testimony reveals otherwise; when asked whether ASTM “sets the law for the State of Georgia,” with regard to industry standards, Sheehan answered, “I’m not a lawyer. I don’t know that ASTM sets laws anyways.” Nor does the testimony reveal that Spearman needed protection from any potential “abuses” of the use of privately promulgated industry standards. If anything, she made extensive use of testimony that the coefficient of friction fell far below those very standards in an effort to convince the jury of GBA’s negligence.

The charge as a whole adequately instructed the jury on the role of expert witnesses. In addition to charging on weight of the evidence, credibility, and impeachment, the court charged in relevant part: “The law permits expert witnesses to give their opinions based upon their training and their experience. You are not required to accept the testimony of any witness, expert or otherwise. Testimony of an expert, like that of all witnesses, is to be given only such weight and credit as you think it’s properly entitled to receive.” (Emphasis supplied.) This charge authorized the jury to accept or reject any portion of any expert’s testimony, which included testimony regarding the ASTM standards. Consequently, there can be no serious contention that the jury suffered from a misconception that compliance with ASTM standards negated liability.

2. Spearman also contends that the trial court erroneously admitted testimony of an alleged inconsistent prior statement by her expert witness. According to Spearman, a proper foundation was not laid, in violation of OCGA § 24-9-83.

During redirect examination of GBA’s expert, Sheehan, GBA elicited testimony that Sheehan had reviewed articles co-authored by Templer. Sheehan was specifically asked, “In those articles, did Dr. Templer himself say there was [sic] no wet test standards?” Spear-man objected to this question, contending that GBA did not question Templer about his articles during cross-examination the day before. The trial court overruled the objection, and Sheehan testified that Templer’s article addressed the lack of clarity of testing standards. More importantly, he testified that the publication addressed the “wide variations in wet testing results in trying to recreate them” and that it specifically stated that walkway surfaces are tested in a dry condition.

Spearman contends that GBA failed to lay a foundation prior to using contradictory statements to impeach Templer’s testimony. Even assuming this to be so, we find no reversible error. The complained-of line of questioning was elicited by Spearman. Before GBA questioned Sheehan on redirect concerning Templer’s publication, Spearman cross-examined Sheehan concerning the existence of an industry standard for performing tests on wet surfaces. During this earlier exchange, Spearman’s attorney stated, “Well, we’ve got a conflict of opinion here between you and Dr. Templer as to what the standard is, so I’m trying to sort this out as the difference between your opinion and his.” In response to that statement, Sheehan replied, “I have a paper written by Dr. Templer that states what I’m stating with regards to testing on dry walkway surfaces.” Spearman did not object to this reply. Only after Spearman’s attorney made the comment during cross-examination concerning the difference in opinions of Templer and Sheehan did GBA’s counsel follow up on redirect with questions concerning Templer’s publication.

We find no reversible error because the complained of testimony was induced by Spearman, and one may not “complain of a judgment, order, or ruling that his own procedure or conduct aided in causing.” (Citations and punctuation omitted.) Shilliday v. Dunaway, supra, 220 Ga. App. at 410 (6). See also Crozier v. State, 263 Ga. 866, 868 (3) (440 SE2d 635) (1994). Also, compounding the fact that Spearman’s attorney’s own comment induced Sheehan’s reply and subsequent questions by defense counsel, Spearman’s lawyer failed to seek any remedy by, for example, objecting to the reply, moving to strike it, or asking for a curative jury instruction. Instead, he argued with Sheehan before moving on to another line of questioning. Although Spearman’s counsel objected on redirect to questions concerning Templer’s publication, he objected too late. By then, the door was open to GBA’s questions. Moreover, Spearman excused Templer after GBA’s cross-examination the day before Sheehan testified rather than reserve the right to recall him for further questions. Because Spearman invited inquiry concerning the representations made in Templer’s publication and did not attempt immediately to remedy any harm caused by Sheehan’s reply during cross-examination, Spearman waived further complaint, either at trial or on appeal. We find no error.

Decided February 24, 1997.

Kenneth L. Shigley, for appellant.

Michael J. Bowers, Attorney General, Brent, Woodland, Redic & Sweetnam, Dennis J. Redic, Dennis M. Sweetnam, for appellee.

Judgment affirmed.

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

       Counsel retorted, “Dr. Templer certainly wasn’t asked about that the other day, was he?” Following Sheehan’s reply that he did not know what Templer was asked in court, Spearman’s counsel moved to another line of questioning.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A97A0015.
    STALEY v. THE STATE.
    (482 SE2d 459)
   Blackburn, Judge.

Melvin Staley appeals his convictions for possession of cocaine with intent to distribute, driving with a suspended license, and driving without proof of insurance. Staley was stopped for speeding, and he told the officer that his license was suspended. After this information was verified, Staley was arrested and his truck was impounded. An inventory search of the truck revealed 8.9 grams of cocaine. Staley contests the trial court’s denial of his motion to suppress, challenges the sufficiency of the evidence supporting his conviction, and claims the trial court erred in allowing the testimony of a witness who violated the rule of sequestration.

1. Staley claims the trial court erred in denying his motion to suppress. He argues that his arrest, the impounding of his truck, and the inventory search of his truck were illegal, and therefore the cocaine found in the truck should have been suppressed as the fruit of the poisonous tree. “A trial court’s order on a motion to suppress will not be disturbed if there is any evidence to support it, and the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous.” Hobdy v. State, 222 Ga. App. 625, 626 (475 SE2d 686) (1996).

Staley claims his arrest was illegal because the initial stop of his vehicle lacked probable cause. The evidence shows that Officer Frank Day observed Staley speeding. By driving behind Staley and measuring his speed against the patrol car speedometer, Day determined that Staley was driving 72 mph in a 55 mph zone. Observation by a police officer of an individual violating the traffic laws gives the officer “probable cause to stop the vehicle and investigate the incident.” Mallarino v. State, 190 Ga. App. 398, 400 (2) (379 SE2d 210) (1989). Staley’s argument that his motion to suppress should have been granted because his arrest resulted from a pretextual stop is therefore without merit.

Staley also argues that his motion to suppress should have been granted because his truck was illegally impounded. He claims the impoundment was illegal because Day did not permit Staley to make alternative arrangements for his vehicle. “The ultimate test for the validity of the police’s conduct in impounding a vehicle is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment.” (Punctuation omitted.) Duvall v. State, 194 Ga. App. 420, 421 (390 SE2d 647) (1990). Day’s conduct in impounding the vehicle was reasonable, as no one Staley might have called could have lawfully driven the truck because Staley could not present proof of insurance for the truck. See id. at 421 (reasonable to impound car instead of allowing defendant’s companion to drive it where there was no proof of insurance). Day testified that it was standard procedure within the Eatonton Police Department for the arresting officer “[t]o impound a vehicle that does not have any proof of insurance on it.” Additionally, the truck was sitting in the turn lane of the road, in the lane of travel. It was reasonable for Day to impound it in order to prevent a potential traffic hazard. See Williams v. State, 204 Ga. App. 372, 374 (419 SE2d 351) (1992) (reasonable to impound where, inter alia, defendant had no driver’s license and car was in a dangerous position on roadway).

Staley argues, however, that he should have been permitted to choose his own wrecker service instead of being forced to use the one called by the police. However, although the record indicates that Staley did ask if he could have someone come and pick up his truck, there is no evidence that he ever made a request for a wrecker service at all, much less a specific wrecker service. Given the lack of proof that the truck was insured, Staley’s inability to drive the truck due to his suspended license, the fact that the truck was sitting in the lane of travel on the roadway, and Staley’s failure to make any request regarding a wrecker service, it was not unreasonable under the Fourth Amendment and the circumstances facing Day at the time for him to call a wrecker and have the truck impounded.

Staley also argues that the trial court should have granted his motion to suppress because .the inventory search of his truck upon impoundment was illegal. In support of this argument, he cites Florida v. Wells, 495 U. S. 1 (110 SC 1632, 109 LE2d 1) (1990). In that case, the Supreme Court acknowledged that police can have some latitude to determine which containers to open and which not to open, but held that where a police department had no policy whatever or established routine with respect to the opening of closed containers during inventory searches, the opening of closed containers during such searches violated the Fourth Amendment. Id. at 4, 5. Staley argues that because the Eatonton Police Department had no policy with respect to opening closed containers during inventory searches, and because the cocaine was discovered in a closed toolbox which the police opened in the bed of his truck, the search violated his Fourth Amendment rights.

The evidence in the record does not support Staley’s argument. Unlike the situation in Florida v. Wells, there was evidence in this case that the Eatonton Police Department had a policy regarding opening closed containers during inventory searches. According to longstanding department policy, all parts of a vehicle were to be inventoried, including all containers. This procedure had been used for at least 11 years. Staley’s argument based upon Florida v. Wells is therefore without merit, and as "[i]t is well settled that a police officer is authorized to make an inventory of the contents of a vehicle that has been impounded,” Staley’s general arguments that his vehicle should not have been searched are also without merit. (Punctuation omitted.) Duvall, supra at 421.

2. Staley contests the sufficiency of the evidence supporting his conviction, and also claims the trial court should have directed the verdict in his favor regarding driving with a suspended license.

With respect to the suspended license charge, Staley claims the State presented no evidence that he received actual or legal notice of the suspension of his license. “[A]bsent proof by the State of actual or legal notice to the defendant a conviction for driving while one’s license is suspended cannot be sustained.” Barrett v. State, 173 Ga. App. 452 (326 SE2d 816) (1985). However, Staley admitted to Officer Day at the scene that his license was suspended, and Day testified to this admission at trial without objection. “[Ajppellant acknowledged that his license had been suspended, so it follows that he had received either actual or legal notice of such suspension.” Id. Therefore, the trial court did not err in failing to direct the verdict for Staley on the notice issue.

Additionally, the evidence supporting this conviction was sufficient to allow the jury to find beyond a reasonable doubt that Staley committed the offense of driving with a suspended license. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Officer Day witnessed Staley driving, then verified the suspension of his license upon stopping him. No reversal of this conviction is warranted.

With respect to the conviction for driving without proof of insurance, after Day observed him driving, Staley could not produce proof of insurance when stopped. This evidence was sufficient to allow the jury to find beyond a reasonable doubt that Staley committed the offense of driving without proof of insurance. Jackson v. Virginia, supra.

Decided February 24, 1997.

Patrice S. Howard, for appellant.

Fredric D. Bright, District Attorney, Paul L. Groth, Assistant District Attorney, for appellee.

Finally, regarding possession with intent to distribute, 8.9 grams of cocaine were recovered from a toolbox in the bed of Staley’s truck, individually packaged in 77 small plastic bags. Cash in the amount of $1,285.09 was also found on his person. The quantity of cocaine, manner of packaging, and large amount of cash found on Staley authorized the jury’s finding, beyond a reasonable doubt, that Staley committed the offense of possession of cocaine with intent to distribute. Jackson v. Virginia, supra. See also James v. State, 214 Ga. App. 763 (449 SE2d 126) (1994) (manner of packaging and large amount of cash, inter alia, constitute evidence of possession with intent to distribute).

3. Staley enumerates as error the trial court’s decision to allow a witness who had violated the rule of sequestration to testify. “[A] witness who has violated the rule of sequestration in a criminal case shall not be prevented from testifying. Violation of the rule by any witness in a criminal trial goes to the issue of credibility, not admissibility, of the witness’ testimony.” (Citation and punctuation omitted.) Sapeu v. State, 222 Ga. App. 509, 513 (8) (474 SE2d 703) (1996). This enumeration is therefore without merit.

Judgment affirmed.

Pope, P. J., and Senior Appellate Judge Harold R. Banke concur.

       Staley argues that the method which was used to determine his speed is questionable. However, Officer Day was certified to visually estimate speed; he visually estimated Staley’s speed at between 70 and 75 mph; and he paced Staley’s speed at 72 mph.


author: Beasley, Judge.

text:
    A96A1989.
    HERRING v. THE STATE.
    (481 SE2d 842)
   Beasley, Judge.

Herring was convicted by a jury for kidnapping with bodily injury, OCGA § 16-5-40, and aggravated assault with an automobile console lid, OCGA § 16-5-21. He was acquitted of other charges, and his motion for new trial was denied.

The evidence is viewed in a light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; in addition, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) (1991); King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) (1994).

Herring and his wife had been married eight months at the time of this incident, and she was two months’ pregnant. They had an argument, and Herring threw a wine glass at her while she was bathing. She went to the bedroom, and he punched her in the face. She attempted to defend herself with a baseball bat, but he grabbed it and struck her on the face with it. Herring left their home, and Mrs. Herring went to the apartment of neighbor Hollis and made a “911” call.

Herring went to Hollis’ apartment and asked to speak to his wife. Mrs. Herring agreed, but when she stepped outside, Herring put her in a “head lock” and dragged her down three flights of stairs, opened the driver’s side door, threw her in, and drove off. He repeatedly hit her, including striking her on the face with the console lid from their car. Mrs. Herring suffered a broken nose and other serious injuries including a miscarriage.

Knowing that Herring was without money, Mrs. Herring persuaded him to return to their apartment on the pretext of giving him money. Herring covered her head with a towel to conceal her wounds, and the two walked up the back steps. A police officer was waiting on the second floor. Mrs. Herring ran to him, and Herring ran in the opposite direction but was arrested at his home the next day.

1. In his first enumeration of error, Herring alleges the trial court abused its discretion by excusing a juror. The case was in the middle of trial, and the court took an overnight recess until 9:00 a.m. the following morning. The State had rested, and the defense had two witnesses remaining to testify, including Herring. The juror telephoned the court to say he had experienced mechanical difficulties with his truck on the way to court and would be unable to appear on time for the trial, but would call back as soon as possible to let the court know his progress. When the juror had not called back by 9:35 a.m., the court replaced the missing juror with an alternate and resumed the trial, over Herring’s objection.

The juror subsequently called from work, near the repair shop where his truck was being serviced, and informed the court it would not be ready until later that afternoon. He provided the court with his work number and indicated a desire to continue as a juror. During the morning recess and after the juror had already been replaced, the court contacted the juror to instruct him that he must either come to the courthouse voluntarily or be transported by a deputy sheriff on a bench warrant.

After the charge conference at the end of the evidence presentation, the sheriff brought the juror into the courtroom. He told the court his truck was taken to the nearest repair shop between 8:30 and 8:45 and was currently being serviced. He indicated that when he called from the repair shop and spoke with courthouse personnel, he was told to call back in an hour or so. The juror then telephoned work. His employer permitted a co-worker to come to the repair shop and transport the juror to work, but would not allow the co-worker to transport the juror to the courthouse. The juror indicated he did not know the court could send a sheriff’s car for him that morning, and if he had known, he would have requested it. The juror’s explanation was confirmed.

Herring contends the court erred in failing to investigate before dismissing and replacing the juror or to wait to hear directly from the juror regarding his situation, and that no good cause was established to excuse the juror.

OCGA § 15-12-172 provides: “If at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.”

This Code section implicitly authorizes the trial court to exercise its discretion. Baptiste v. State, 190 Ga. App. 451, 453 (2) (379 SE2d 165) (1989). But it must be an informed exercise, Scott v. State, 219 Ga. App. 798, 799 (2) (466 SE2d 678) (1996), since “the erroneous replacement of a juror may under certain circumstances deprive a defendant of his valued right to have his trial completed by a particular tribunal, his sixth amendment right to a fair, impartial and representative jury, and his due process rights grounded in the entitlement to procedures mandated by state law.” Peek v. Kemp, 784 F2d 1479, 1483 (2) (11th Cir. 1986). See also United States v. Jorn, 400 U. S. 470, 484 (II) (91 SC 547, 27 LE2d 543) (1971). “ ‘There must be some “sound” basis upon which the trial judge exercise(s) his discretion’ to remove the juror. [Cit.] Dismissal of a juror ‘for want of any factual support, or for a legally irrelevant reason’ is prejudicial. [Cit.]” Green v. Zant, 715 F2d 551, 555 (11th Cir. 1983).

The court did not abuse its discretion. It had no information at the time the trial was set to proceed as to where the juror was, how long he would be without transportation, or when he would be able to return to court. Information discovered after replacement, that the juror would have been able to continue serving if the sheriff fetched him, does not change this conclusion. The court did not have to keep everyone waiting (beyond the 35 minutes they did wait) for an indeterminate period of time for the juror to report.

This is not a situation where the jury was deadlocked or had begun deliberations, when the need for investigation and the possibility of harmful error are heightened. See Hill v. State, 263 Ga. 37, 41 (8) (427 SE2d 770) (1993); Scott, supra; Stokes v. State, 204 Ga. App. 141, 142 (1) (418 SE2d 419) (1992). Herring “has not shown how he was prejudiced by the use of an alternate, since pursuant to OCGA § 15-12-169 alternates are selected in the same manner and must have the same qualifications as members impaneled as the jury. ‘The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. The control of the pursuit of such determination is within the sound legal discretion of the trial court, and only in the event of manifest abuse will it be upset upon review.’ [Cit.]” Forney v. State, 255 Ga. 316, 317 (1) (338 SE2d 252) (1986). Replacing the juror “had no more effect of denying [Herring] a qualified jury than if the juror had become ill or died. The alternate juror statute was designed to alleviate situations such as these.” Neal v. State, 160 Ga. App. 834, 837 (2) (288 SE2d 241) (1982).

2. The second enumeration is that the court allowed the State to violate Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), in failing to disclose certain memoranda of meetings the prosecutor had with Mrs. Herring before her testimony at Herring’s bond reduction hearing and at trial, and that the court erred in denying his motion for mistrial on this ground.

Mrs. Herring testified at the bond hearing, when it was possible Herring would gain release, that she voluntarily went to the car with her husband and that he struck her in self-defense and only to avoid an accident after she grabbed the steering wheel. Bond was set at $30,000 cash. Herring was unable to post bond. At the hearing on the motion for reduction, Mrs. Herring testified that she did not voluntarily get into the car, nor did Herring strike her in self-defense or to avoid having a crash.

Herring argues that an important component of his defense was the victim’s inconsistent sworn testimony. He contends one basis for the change in testimony between the original bond hearing and the bond reduction hearing was the pendency of a forgery case prosecution by the same district attorney’s office. Although the investigating officer recommended indictment, Mrs. Herring’s case had not been prosecuted by the time her husband’s case came to trial.

Herring learned of meetings between the prosecutor and Mrs. Herring during trial after an in camera inspection of the State’s file, when the court supplied Herring with copies of documents discussing the forgery case and the decision to dismiss it. Herring argues he was harmed because the jury could not hear about the meetings relating to the disposition of the charges against Mrs. Herring, which would have caused her to change her testimony and affected her credibility. He maintains he was further harmed by the court quashing the subpoena served on the prosecutor in an attempt to elicit this evidence for the jury to consider in evaluating her credibility.

Herring cites Hines v. State, 249 Ga. 257, 259-260 (2) (290 SE2d 911) (1982), in which the Supreme Court determined from its reading of Davis v. Alaska, 415 U. S. 308 (94 SC 1105, 39 LE2d 347) (1974), that the state and federal constitutions guarantee to a criminal defendant a specific right to cross-examine a key State’s witness concerning pending criminal charges against that witness, since, on a subconscious level, he may be shading the testimony in an effort to please the prosecution. Herring argues he was entitled to a thorough and sifting cross-examination, OCGA § 24-9-64, to fully explore the possibility of Mrs. Herring’s cloudy perceptions and biases.

No Brady violation occurred, since the materials were made available to Herring during trial. Brady does not require pre-trial disclosure of materials sought by the defendant. Dennard v. State, 263 Ga. 453, 454 (4) (435 SE2d 26) (1993). Herring must show that earlier disclosure would have benefited him and that the delayed disclosure deprived him of a fair trial. Id.

Hines is inapposite since the record shows counsel was permitted vigorous cross-examination of Mrs. Herring, including questioning her about the pending forgery investigation, the change in her testimony, and meetings she had with the prosecutor. Further, Herring declined the court’s offer of the opportunity to recall Mrs. Herring.

3. Herring next contends the court contravened OCGA § 24-2-2 by admitting evidence of prior domestic violence by Herring towards his wife to show course of conduct and bent of mind, when the prior incidents were not sufficiently similar to the incidents on trial. This case is similar to Bohannon v. State, 208 Ga. App. 576, 579 (2) (b) (431 SE2d 149) (1993), where testimony as to episodes of the accused’s past physical abuse of the victim, whom he had been involved with romantically, was admissible as evidence of similar transactions.

As in Bohannon, the State satisfied the three-prong test of Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), in a Uniform Superior Court Rule 31.3 hearing at which the State showed that (1) the evidence was proffered not to raise an improper inference as to the accused’s character, but for some appropriate purpose recognized as an exception to the general rule of inadmissibility, i.e., Herring’s systematic course of conduct in physically abusing his wife and his bent of mind to commit acts of violence against her; (2) Herring committed the prior acts; and (3) there is a sufficient logical connection or similarity between the prior difficulties and the crime charged so that proof of the former tends to prove the latter. Id. at 642, n. 3.

4. Each incident consisted of physical violence by Herring against the same victim. Each occurred during the course of the parties’ eight-month marriage. Most, as this one, occurred when Herring had been consuming alcohol. The fact that they occurred in a variety of places and over different matters did not ehminate their relevance to show Herring’s behavior, a manifestation of his bent of mind.

“The rule allowing the admission of similar transaction evidence is usually applied more liberally with evidence of prior attempts by the accused to commit the same crime upon the victim of the offense for which he stands charged. Certain otherwise inexplicable assaults, such as occur in a series of incidents of wife or child abuse, particularly lend themselves to this exception to the ‘other offenses’ rule on questions of both identity and motive.” (Citations and punctuation omitted.) Parcell v. State, 198 Ga. App. 439 (1) (401 SE2d 628) (1991). The evidence was properly admitted.

5. Herring next contends the trial court abused its discretion in allowing the State to introduce the similar transaction evidence prior to evidence relating to the charged offenses. He cites Gilstrap v. State, 261 Ga. 798 (410 SE2d 423) (1991), in which the Supreme Court found that allowing the prosecutor to introduce nine similar transactions from witnesses other than the victim before introducing evidence concerning the crimes charged raised a substantial possibility the jury could have determined the defendant’s guilt solely on the similar transaction evidence. Id. at 799 (2).

Gilstrap “expressly declined to determine the limits on the trial court’s discretion as to the order of the admission of evidence,” since the order of proof is generally within the trial court’s discretion and will not be disturbed on appeal absent abuse. (Citations and punctuation omitted.) Bailey v. State, 209 Ga. App. 390, 394 (5) (433 SE2d 610) (1993). As in Bailey, “the testimony objected to came only from the victim and not other witnesses. . . . [T]he trial court did not abuse its discretion in allowing the victim to testify in chronological order about her abuse even though such a presentation resulted in the admission of . . . similar transaction evidence prior to the evidence on the crimes charged.” Id. Mrs. Herring’s testimony, in which the episodes of abuse were recounted in chronological order, demonstrated Herring’s escalating violence toward his wife, culminating in the most violent assault, the one on trial. Herring accordingly cannot show he was prejudiced or that the court abused its discretion in allowing a logical presentation which gave context to the subject incident.

6. Herring urges error in the imposition of a ten-year sentence for aggravated assault. The State agrees. Verdict was for both kidnapping with bodily injury and aggravated assault. The court noted that the two crimes merge, see OCGA § 16-1-6, and imposed a mandatory sentence of life imprisonment for the kidnapping conviction and, as an alternative to merger, ten years concurrent for aggravated assault “just in case something happens on appeal.”

Decided February 7, 1997

Reconsideration denied February 25, 1997

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Daniel J. Porter, District Attorney, Ben L. Leutwyler III, Assistant District Attorney, for appellee.

Aggravated assault is a lesser included offense of, and is accordingly merged with, the crime of kidnapping with bodily injury. George v. State, 192 Ga. App. 840, 842 (3) (386 SE2d 669) (1989). The aggravated assault sentence is reversed, and the trial court is directed to vacate it.

7. Herring enumerates as error the court’s allowing the State to cross-examine him about certain statements he made to police before given Miranda warnings, after the court ruled those statements inadmissible at a Jackson v. Denno hearing. Although Herring objected, he did not give any particular reason. In order to preserve a ground for error, the objecting party must state the specific ground upon which it is based. “[A]n otherwise valid reason why evidence should not be admitted will not be considered on appeal unless the specific reason was urged below.” Fletcher v. State, 199 Ga. App. 756, 757 (406 SE2d 245) (1991). Even if the ground was preserved by the Jackson-Denno hearing results, Herring suffered no harm because he testified to similar statements he made to his wife on two occasions.

8. Herring maintains the court erred in failing to give his justification defense charges based on OCGA § 16-3-20. The court’s lengthy instruction to the jury in this regard was adjusted to the evidence and fully and properly informed the jury as to justification and self-defense. The court was not required to give the exact language of Herring’s request when the same principles were expressed in the general charge. Howard v. State, 151 Ga. App. 759, 760 (261 SE2d 483) (1979).

9. The final enumeration is that the evidence was insufficient to support the verdict. As Herring recognizes, this Court addresses sufficiency under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). There was ample evidence from which a rational trier of fact could determine Herring’s guilt beyond a reasonable doubt of the offenses charged. Grant v. State, 195 Ga. App. 463 (393 SE2d 737) (1990).

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A96A2034.
    THOMAS v. THE STATE.
    (482 SE2d 472)
   Blackburn, Judge.

Jonathan Lamont Thomas appeals his conviction for the armed robbery of Thomas Schrey and the aggravated assault of Vincent Pair, asserting that the trial court erred in admitting various evidence and in instructing the jury.

Viewing the evidence in the light most favorable to the verdict, Thomas approached Pair and Schrey, high school students, who were sitting in a parked car. He first pointed a gun at Pair, the driver, and demanded the car and Pair’s jewelry. When Pair refused, Thomas then pointed his gun at Schrey, demanding his jewelry. Schrey complied, and Thomas left the scene on foot. The victims immediately alerted the police, and shortly thereafter Thomas was arrested in the vicinity where the crime occurred. Thomas, his clothing, his gun, and the stolen items found in Thomas’ possession at the time of his arrest were positively identified by the victims. Thomas admitted having an encounter with the victims, but denied robbing or assaulting them. He testified that the victims and two other companions, Marcus Grimes and Trayton Head, were in the car at the time of the encounter. He further testified that he approached the car because he believed Head had stolen a pouch belonging to him that contained tapes, a Walkman, and a gun.

1. Thomas asserts that the trial court erroneously granted a motion in limine at the outset of trial precluding him from mentioning whether any of the State’s witnesses had a juvenile history of delinquent activity. Thomas argues that this ruling improperly precluded him from impeaching Schrey’s testimony that he was not a drug dealer. In support of his position, Thomas cites Williams v. State, 171 Ga. App. 927, 928 (321 SE2d 423) (1984), in which reference to the juvenile history of a witness was permitted, not to prove general bad character or prior convictions as provided by OCGA § 24-9-84, but to impeach the testimony of the witness that he had never been in trouble before. Williams notwithstanding, this enumeration is without merit.

First, because Thomas did not make this argument at trial, he is precluded from raising it on appeal. Woods v. State, 210 Ga. App. 172, 173 (1) (435 SE2d 464) (1993) (appellant’s argument that the trial court erred in limiting his cross-examination of a key witness was rejected on appeal because appellant objected on different grounds below and never raised his appellate argument in the trial court for that court to rule on); see also Strickland v. State, 257 Ga. 230, 232-233 (4) (357 SE2d 85) (1987).

Second, pretermitting the applicability of Williams to this case, Thomas never made a proffer to the trial court of what evidence he would have submitted regarding Schrey’s juvenile history. In fact, Thomas points to no part of the record indicating that Schrey even had a juvenile record. Numerous witnesses testified at trial, and the State’s motion in limine sought to bar Thomas from referring to the juvenile history of any witnesses, without identifying any particular one. “Where the error alleged is that certain evidence has been wrongfully excluded, the rule is well settled that there must have been a proffer or offer of a definite sort [so] that both [the trial court and the appellate court] can know whether . . . the evidence really exists.” (Citations and punctuation omitted.) Dent v. State, 220 Ga. App. 147, 149 (3) (469 SE2d 311) (1996). In the absence of such a proffer, “the assignment of error is so incomplete as to preclude its consideration by this court.” (Citations and punctuation omitted.) Id.

2. Thomas asserts that the trial court improperly considered evidence of a former conviction in the sentencing phase because the State had not timely served the defendant with notice of its intent to use that conviction as evidence of aggravation under OCGA § 17-10-2 (a). Thomas was given notice of the State’s intent after voir dire but before jury selection.

Thomas failed to object to the introduction of the conviction during the pre-sentencing phase, thereby waiving the issue on appeal. Armstrong v. State, 264 Ga. 237, 239 (3) (442 SE2d 759) (1994). Moreover, Thomas’ argument was rejected in a similar case, Payne v. State, 219 Ga. App. 318 (464 SE2d 884) (1995), where the defendant was given notice while the jury was being selected. “OCGA § 17-10-2 (a) provides that notice must be given before trial. In the present case, jeopardy had not attached because the jury had not been sworn. Therefore, [the defendant] was notified before trial as the statute requires.” (Citation omitted.) Id. at 319 (4). Accordingly, Thomas received timely notice pursuant to OCGA § 17-10-2 (a), and this enumeration is without merit.

3. Thomas asserts that the trial court erred in admitting, over his objection, two pawn shop receipts signed by Thomas when he purchased a gun. The State argued that Thomas used the gun in question during the robbery and assault. On appeal, Thomas asserts that these documents should have been provided pursuant to OCGA § 17-16-4. This assertion is without merit because the trial in this matter took place in November 1993, before OCGA § 17-16-4 was enacted. Ga. L. 1994, p. 1895, § 4.

4. Thomas contends that the trial court erred in permitting his character to be placed into evidence. Specifically, Thomas complains of (1) testimony from the victims that Thomas smelled of alcohol at the time of their encounter; (2) testimony from the investigating officer that the victims described Thomas as appearing intoxicated and smelling of alcohol at the time of their encounter; and (3) Thomas’ own testimony that he was carrying a concealed weapon and that he lacked a license for that weapon. The record reveals that Thomas failed to object to any of this evidence on the grounds that it impermissibly placed his character into evidence. Accordingly, this issue has not been preserved for appellate review. Earnest v. State, 262 Ga. 494, 495 (1) (422 SE2d 188) (1992).

5. Thomas contends that the trial court erred in admitting a picture of him taken shortly after his arrest. At trial, the photograph was admitted over Thomas’ objection that it was unduly prejudicial. Thomas made no argument that the picture had not been accurately authenticated, the argument he now asserts on appeal. Because “we do not consider grounds for objection not raised in the trial court,” this enumeration is without merit. Edwards v. State, 219 Ga. App. 239, 246-247 (8) (464 SE2d 851) (1995).

6. Thomas contends that the trial court erred in permitting the State to cross-examine him as to privileged communications with his attorney. During his opening statement, Thomas’ attorney had stated that Thomas believed his pouch had been taken by Grimes, one of the victims’ two companions, and that Thomas approached the car in order to speak with Grimes. As outlined above, Thomas later testified that he believed Head, the victims’ other companion, had stolen his pouch, and Thomas approached the victims’ vehicle in order to speak with Head. The State then questioned Thomas whether his defense attorney had been mistaken in his opening statement when he identified Grimes rather than Head as the party Thomas believed had stolen his belongings. Thomas’ attorney made a relevancy objection, arguing that his opening was not evidence and was not subject to impeachment and that the State’s question sought to “cast a cloud over me.” The trial court overruled the objection, and Thomas testified that his attorney had mistaken Grimes for Head. In response to other questions by the State, Thomas then explained how such a mistake could have occurred, specifically outlining what he had told his attorney. No objection was raised to this testimony.

Thomas now argues that the trial court impermissibly permitted the State to delve into communications protected by the attorney-client privilege. Assuming without deciding that the objection raised below sufficiently addressed the testimony in question, the objection was still insufficient to preserve this issue for appellate review, because Thomas did not assert privilege as a ground for his objection below. Accordingly, we cannot consider this argument for the first time on appeal. See Edwards, supra. Moreover, even if the alleged error was preserved for appeal, it would be harmless. McIntyre v. State, 266 Ga. 7, 10 (4) (463 SE2d 476) (1995) (harm as well as error required for reversal). Thomas was not harmed, but benefited from being able to answer the State’s question, because it allowed him to explain why his testimony contradicted earlier assertions made by his own attorney.

Decided February 25, 1997.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

7. In his final enumerations, Thomas contends that the trial court erred when it failed to give a charge on good character and on circumstantial evidence. Not only did Thomas fail to request these charges, but upon the trial court’s inquiry, Thomas stated that he had no objection to the charge as given to the jury. “In order to avoid waiver, if the trial court inquires if there are objections to the charge, counsel must state his objections or follow the procedure set forth in Gaither v. State, 234 Ga. 465 (216 SE2d 324) (1975), of reserving the right to object on motion for new trial or on appeal. . . . [Cits.] Here, upon inquiry by the trial court, [Thomas’] counsel neither objected to the court’s failure to give the charge now complained of, nor reserved the right to later object to the charge. As [Thomas] waived the right to object to the charge, we are without authority to address this enumerated error.” (Punctuation omitted.) Dukes v. State, 205 Ga. App. 678, 679 (2) (423 SE2d 295) (1992).

Additionally, it is not error for the trial court to fail to charge on circumstantial evidence where, as here, the State’s case does not depend entirely on circumstantial evidence. See generally Davis v. State, 266 Ga. 801, 804 (471 SE2d 191) (1996).

Judgment affirmed.

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

       Thomas did object when the State questioned Schrey as to whether Thomas was intoxicated, on the grounds that Schrey was unable to make such a determination. The trial court sustained the objection until a proper foundation could be laid. Thomas made no objection during Schrey’s subsequent testimony that he could smell alcohol on Thomas’ breath.


text:
    A96A2419.
    SMITH v. THE STATE.
    (481 SE2d 896)
   Blackburn, Judge.

Gretta Smith appeals her conviction of theft by taking. While employed as a cashier by Friendly Gus-Food Stores, Smith repeatedly manipulated the cash register to void certain transactions which had actually taken place, and then stole the money from those transactions. By this method, Smith stole $15,614.22. She argues that the trial court erred in failing to charge the defense of alibi, and claims she received ineffective assistance of counsel.

1. During the charge conference, in response to a direct question by the judge, Smith’s counsel stated that he was not asserting an alibi defense, and that he did not want a charge on alibi. He further stated that Smith’s defense was that of equal access — that other individuals had as much access to the cash register as Smith, and that one or more of these individuals could have committed the theft. Accordingly, no alibi charge was given. In light of these circumstances, the trial court did not err in failing to charge the defense of alibi.

Additionally, the evidence presented at trial did not support a charge of alibi. The uncontroverted evidence showed that Smith was present each time money was stolen from the convenience store. “It is well settled that where the evidence in support of the defense of alibi does not show the impossibility of the defendant’s presence at the scene of the crime at the time of its commission, the failure of the court to charge the law of alibi is not error.” (Citations and punctuation omitted.) Hulett v. State, 262 Ga. 194, 195 (2) (415 SE2d 642) (1992). Smith’s arguments on this issue are therefore without merit.

2. Smith maintains that she received ineffective assistance of counsel because her trial counsel failed to strike two jurors who knew the owner of the Friendly Gus Food Stores. She also claims her trial counsel was ineffective because he did not disclose to her that he had represented Friendly Gus in the past.

To establish a claim of ineffective assistance of counsel, “a defendant must prove that his trial counsel’s performance was deficient and the deficiency prejudiced his defense to the extent that there was a reasonable probability the result of the trial would have been different but for defense counsel’s unprofessional deficiencies. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).” Emerson v. State, 222 Ga. App. 596, 597 (2) (474 SE2d 638) (1996). Unless clearly erroneous, a trial court’s finding that a defendant received effective assistance of counsel will be upheld on appeal. See Foreman v. State, 200 Ga. App. 400, 401 (3) (408 SE2d 178) (1991).

With respect to her ineffectiveness claim based upon her trial counsel’s failure to strike two jurors who knew the owner of the Friendly Gus Food Stores, Smith’s appellate counsel did not call her trial counsel to testify at the hearing on her motion for new trial. “The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. [Smith] did not subpoena [her] trial counsel to appear at the hearing on [her] motion for new trial. Thus, [Smith] made no affirmative showing that the purported deficiencies in [her] trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy. . . . The burden is on the party alleging error to show it affirmatively by the record, and when [she] does not do so, the judgment is assumed to be correct and must be affirmed.” (Citations and punctuation omitted.) Foreman, supra at 401 (3). Smith has failed to show by the record that her trial counsel’s decision regarding the selection of these two jurors amounted to ineffective assistance of counsel under Strickland, supra, and the trial court’s finding of effectiveness is not clearly erroneous.

Decided February 25, 1997.

Harold D. McLendon, for appellant.

Ralph M. Walke, District Attorney, Louie C. Fraser, Assistant District Attorney, for appellee.

Smith’s ineffectiveness claim based upon her trial counsel’s alleged failure to disclose to her that he had represented Friendly Gus in the past is likewise without merit. At the hearing on the motion for new trial, the owner of Friendly Gus denied that Smith’s trial counsel had ever represented him or the corporation in the past, with the possible exception of a title search. With Smith’s trial counsel not present to testify, her appellate counsel told the court he was certain Smith’s trial counsel had represented Friendly Gus in the past. The court granted counsel seven days to supplement the record with evidence to this effect, but no such evidence was ever submitted. Because Smith failed to present any evidence that a conflict of interest existed, her claim for ineffective assistance of counsel on this ground fails, and the trial court committed no error on this issue.

3. Smith’s brief references two additional enumerations of error, though neither error is identified or supported by argument and citation of authority. “Matters not enumerated as error will not be considered on appeal.” (Citation and punctuation omitted.) Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395) (1990).

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A96A2491.
    NATIONAL GENERAL INSURANCE COMPANY v. UNITED SERVICES AUTOMOBILE ASSOCIATION.
    (482 SE2d 727)
   Johnson, Judge.

In this appeal, we are asked to address the following issue: Which of two uninsured motorist insurance carriers is primarily responsible for providing coverage to an injured person insured under both policies, when the carrier that received the injured insured’s premiums claims its policy provides coverage only in excess of any other available uninsured motorist coverage, and where the policies were issued in different states. For the reasons set out below, we affirm the trial court’s ruling that the uninsured motorist carrier which received the injured insured’s premiums is primarily responsible for coverage.

For summary judgment purposes, the parties stipulated to the following facts: Buford Pender, a Michigan resident, rode in a car owned and driven by Melvin Pender, a Georgia resident. Buford Pender was injured when a car driven by Gregory Miles collided with the car in which the Penders rode. The collision occurred in Georgia. Buford Pender’s damages amounted to $62,500. Miles was insured by Coronet Insurance Company, but had only $7,500 available in bodily injury liability coverage for Buford Pender’s claim. Buford Pender had $20,000 uninsured motorist coverage with National General Insurance Company; the policy was issued and delivered in Michigan. Melvin Pender had $100,000 per person uninsured motorist coverage through United Services Automobile Association (“USAA”); this policy was issued and delivered in Georgia. Coronet has agreed to pay Buford Pender the $7,500 available under its policy. National General and USAA both agree that Buford Pender qualifies as an insured eligible for uninsured motorist coverage under their policies, but disagree as to which uninsured motorist insurer is primarily responsible for providing the remaining coverage.

Buford Pender (hereinafter “Pender”) sued Miles and, because Miles was underinsured, served USAA and National General as the carriers responsible for providing him with uninsured motorist coverage. National General moved for summary judgment claiming that under the terms of its policy and Michigan law, which it argues governs its policy, National General’s uninsured motorist coverage is not reached until after USAA’s uninsured motorist limits are reached. USAA filed a cross-motion for summary judgment, contending National General is primarily obligated to provide coverage for Pender because Pender paid his premiums to National General and therefore, under Georgia law, National General is Pender’s primary insurer. The trial court found that National General was the primary insurer and granted USAA’s cross-motion for summary judgment. National General appeals.

National General contends the trial court erred in determining that it is the primary uninsured motorist insurance carrier when Michigan law applies to the interpretation of its contract, and under Michigan law and the terms of its policy, its coverage is only excess over USAA’s limits.

National General points to the “other insurance” clause contained in its policy, which provides that if there is any other applicable insurance, any insurance National General provides with respect to a vehicle the insured does not own “shall be excess over any other collectible insurance.” National General interprets this clause as meaning that its coverage is not reached until after USAA’s uninsured motorist coverage is exhausted. Under National General’s interpretation, because of the limits on the USAA policy, its coverage should not be reached at all in this case.

We agree with National General that if construction of its contract were the issue, Michigan law would govern. Georgia follows the doctrine of lex loci contractus, which means that where a pleaded contract is executed in a foreign state and contains nothing to indicate that it was intended to be construed as a Georgia contract, it will be treated as a contract of the foreign state, and governed by its laws, unless the foreign state’s laws are contrary to the public policy of this state. Terry v. Mays, 161 Ga. App. 328, 329 (1) (291 SE2d 44) (1982). However, we are not dealing with the construction of either National General’s or USAA’s contract. Both companies concede that their policies contemplate coverage in this case. The question is which uninsured motorist insurer is initially obligated to provide coverage, a question which neither contract specifically addresses. Thus, we need not interpret either contract to decide the question presented.

Even if we were required to interpret National General’s policy according to Michigan law, we would find no error in the trial court’s judgment. We have carefully reviewed the Michigan authority cited by National General and find that it fails to address the issue of which carrier is primarily obligated to provide uninsured motorist coverage when the insured may have coverage through two or more uninsured motorist carriers. Nor has our research revealed any Michigan authority on point. The case upon which National General primarily relies, Bradley v. Mid-Century Ins. Co., 294 NW2d 141 (Mich. S. Ct. 1980), involves only one uninsured motorist insurer and two uninsured motorist policies covering one insured. Id. at 156-157 (II), 161 (C). National General has not shown it is entitled to get in line behind USAA based on Michigan law.

In contrast, the law in Georgia is clear on this issue. Here, “it is the carrier that receives a premium from the injured insured that bears initial responsibility for compensating him up to its policy limits. [Cits.] Where receipt of a premium from the injured insured is shown to exist, it is controlling to the exclusion of consideration of any other factors which might be otherwise present.” (Emphasis supplied.) Continental Ins. Co. v. Southern Guaranty Ins. Co., 193 Ga. App. 395, 396 (1) (388 SE2d 16) (1989). This is true even where there is an “other insurance” clause in the policy issued by the premium recipient. See id. at 396 (2). None of the authority cited by National General addresses the issue of the receipt of premiums by competing uninsured motorist coverage providers and its effect on an “other insurance” clause. Because National General received Pender’s premiums, it is primarily responsible for providing coverage, regardless of any other factors. See Ga. Farm Bureau &c. Ins. Co. v. State Farm &c. Ins. Co., 255 Ga. 166, 167 (336 SE2d 237) (1985); see generally Allstate Ins. Co. v. Fire &c. Ins. Co., 181 Ga. App. 610 (353 SE2d 38) (1987).

Decided February 25, 1997

Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Karen M. Raby, for appellant.

Nickerson & Tuszynski, David E. Tuszynski, Lane, O’Brien & Caswell, Eugene O’Brien, Bovis, Kyle & Burch, Charles M. McDaniel, Jr., for appellee.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

       We note that USAA.’s uninsured motorist provision contains a nearly identical “other insurance” clause, although neither party discusses this point in their briefs.


author: Birdsong, Presiding Judge.

text:
    A96A2521.
    COFFEY v. WAL-MART STORES, INC.
    (482 SE2d 720)
   Birdsong, Presiding Judge.

Michael Coffey appeals the grant of summary judgment to WalMart Stores, Inc., on Coffey’s claims arising from an incident in which he slipped and fell while shopping in a Wal-Mart. Coffey contends the trial court erred by granting summary judgment because at the time he slipped and fell he was exercising reasonable care for his own safety and because Wal-Mart failed to exercise reasonable care because it did not clean up the spill which it knew, or should have known, presented a danger.

The record shows that Coffey frequently shops at Wal-Mart, and the store is generally well lighted. On this day, he intended to purchase some motor oil and an oil filter for his truck. Although Coffey left school in the tenth grade, he can neither read nor write and thus requested the assistance of a Wal-Mart employee to help him find the proper oil filter for his truck. While the employee stayed at one end of the aisle looking in a book or parts catalog which gave this information, Coffey walked down the aisle to pick out the motor oil.

This aisle is about four or five feet wide; one can reach out and touch the items on both sides of the aisle, and the floor of the aisle is covered by “off-white” colored tile. Coffey pushed his shopping cart down one side of the aisle until he was about 18-20 feet from the WalMart employee, picked out five quarts of oil from the shelf, put the oil in the child’s seat in the shopping cart, and started back toward the Wal-Mart employee who was still looking in the catalog. About eight to ten feet from the employee, however, Coffey slipped and fell on a clear, colorless substance which smelled like Armorall, or a similar product. Coffey slipped and fell about eight to ten feet from the oil and about eight to ten feet from the Wal-Mart employee. Coffey did not see the substance before he fell; when he passed it going toward the oil, he was looking at the oil, and he did not pass over it then because he was walking on the other side of the aisle.

When Wal-Mart employees mopped up the substance after Coffey fell, Coffey saw that the substance was about 20 inches across. Coffey does not know why the substance was on the floor or how the substance got there. He only saw the substance on the floor after he fell; the substance could have been water for all he knew. The floor was not generally slippery and Coffey did not see any tracks through the substance nor any drips leading away from it.

At the time he fell, Coffey was not looking down at the floor, but if he had been looking down, it is possible that he would have seen the substance. When he fell, however, he was looking at the WalMart employee who was examining the catalog. The Wal-Mart employee was facing the shelf and was not talking to Coffey, there were no other Wal-Mart employees around at the time and Coffey cannot recall if there were other customers in the area. There was no merchandise in the aisle.

Although Coffey testified that he did not know when Wal-Mart last inspected or cleaned the aisle, a Wal-Mart employee gave an affidavit stating that she came to Coffey’s assistance while he was on the floor and she was absolutely positive she had inspected the exact location where he fell less than 15 minutes earlier and the floor in that same location was dry and free of any foreign substance.

Wal-Mart moved for summary judgment relying upon Coffey’s deposition testimony that he was not looking at the floor when he fell and upon the affidavit of its employee that the floor was dry and free of any foreign substance less than 15 minutes before Coffey fell.

In response, Coffey relied upon the distraction doctrine. He claimed that he was distracted from watching for any substances on the floor because he was looking at the Wal-Mart employee who was examining the catalog. The trial court granted summary judgment to Wal-Mart because the floor had been inspected less than 15 minutes before Coffey fell and no foreign substance was found, Wal-Mart had no knowledge of the substance, and the substance was in plain view. Coffey now appeals. Held:

1. Coffey has not followed the rules of this Court in that the argument in his brief does not follow the order of the enumerations of error and the argument is not numbered to correspond to the enumerations. See Court of Appeals Rule 27 (c) (1). Instead, his enumerations of error allege the trial court committed the following errors of law: (1) Appellant exercised ordinary care for his own safety; (2) Appellant was distracted by an employee of appellee and was thus excused from his failure to locate the spill on appellee’s floor, which resulted in his injuries. The trial court failed to apply the distraction theory to the facts of this case; (3) Appellee failed to exercise ordinary care in keeping its premises safe (OCGA § 51-3-1); (4) Appellee failed to exercise ordinary care in keeping its premises safe due to the fact that an employee was positioned in the immediate vicinity of the spill upon which appellant fell. Thus, Coffey contends the “15 minute rule” has no bearing in this case.

The argument in Coffey’s brief, however, raises only two points: (1) The trial court erred by granting Wal-Mart’s motion for summary judgment as Coffey was exercising reasonable care for his own safety at the time of the alleged incident, and (2) the trial court erred by granting Wal-Mart’s motion for summary judgment as Wal-Mart failed to exercise reasonable care by not cleaning a spill which WalMart knew, or should have known, presented a danger. Accordingly, any error enumerated and not argued within these topics is deemed abandoned. Court of Appeals Rule 27 (c) (2).

2. “In Georgia, although the owners and occupiers of land owe certain duties to those who enter the premises, those duties vary according to the relationship between the owner and the one entering. The mere ownership of land and buildings does not render one liable for injuries sustained by persons who have entered thereon or therein; the owner is not an insurer of the safety of entrants on his premises.” (Footnotes omitted.) Adams & Adams, Ga. Law of Torts (1996 ed.), p. 97, § 4-1. Thus, “[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1.

The standard of proof necessary to establish liability on the part of a proprietor in slip and fall cases involving foreign substances on floors is set forth in Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327), in which our Supreme Court “clarified the policy considerations and respective duties imposed on the parties” (Adams & Adams, Ga. Law of Torts (1996 ed.), pp. 123-124, § 4-6) because “[t]he cases have tended to drift toward a jury issue in every ‘slip and fall’ case.” Alterman Foods, supra at 621.

ha. Alterman Foods, the Supreme Court reiterated that to prevail, a plaintiff must show that the owner or proprietor “was aware of the substance or would have known of its presence had he exercised reasonable care. Thus it is said that only when the perilous instrumentality is known to the owner or occupant and not known to the person injured that a recovery is permitted. Normally a proprietor is permitted a reasonable time to exercise care in inspecting the premises and maintaining them in a safe condition. However, the proprietor is under no duty to continuously patrol the premises in absence of facts showing that the premises are unusually dangerous. Knowledge on the part of the proprietor that there is a foreign substance on the floor that could cause patrons to slip and fall may be either actual or constructive. In some cases the proprietor may be held to have constructive knowledge if the plaintiff shows that an employee of the proprietor was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard.” (Citations and punctuation omitted.) Id. at 622.

Our Supreme Court has not yet rejected or revised the Alterman Foods standards, and consequently they remain binding on this Court even though we may now believe we have a better concept for allocating the burdens on the parties. Ga. Const. 1983, Art. VI, Sec. VI, Par. VI. Nevertheless, because of recent divergences within this Court in slip and fall cases, perhaps it is time for the Supreme Court to revisit this issue.

Significantly, however, the Supreme Court has altered one important aspect injudicial consideration of these cases. In Alterman Foods the Supreme Court, in accordance with the procedures regarding motions for summary judgment then in effect, stated that the movant had the burden of establishing the nonexistence of any genuine issue of material fact. Alterman Foods, supra at 625. After Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474), however, this is no longer true. “[A]t summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. In other words, summary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. In so holding, we overrule anything to the contrary. [Cits.]” Lau’s Corp. v. Haskins, 261 Ga. at 495.

Thus, after Lau’s Corp., movants for summary judgment are no longer required to disprove the essential elements of the plaintiff’s case. See also Evans v. Heard, 264 Ga. 239, 241 (442 SE2d 753). This is a significant change because, even at summary judgment, “to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Alterman Foods, supra at 623.

Of course, merely showing that the plaintiff fell establishes nothing. “ ‘Proof of nothing more than the occurrence of plaintiff’s fall is insufficient to establish defendant’s negligence.’ ” Wilson v. Duncan, 211 Ga. App. 814, 815 (440 SE2d 550); Lee v. Peacock, 199 Ga. App. 192 (3) (404 SE2d 473). See Alterman Foods, supra at 624: “To presume that because a customer falls in a store that the proprietor has somehow been negligent would make the proprietor an insurer of his customer’s safety which he is not in this state.”

In this case, Coffey has not met his burden of showing that WalMart had actual or constructive knowledge of the substance on the floor. The employee that Coffey contends was in the immediate area was further away from the substance than Coffey and there is no evidence that she ever approached the substance. Further, rather than working in the area, she came to the aisle with Coffey to assist him in finding something in the parts catalog which was eight to ten feet away from the substance. Under our law, an employee merely working in the immediate area of a foreign substance is not enough; the employee must have been in a position to have easily seen the substance and removed it. Alterman Foods v. Ligon, supra at 622; Mitchell v. Rainey, 187 Ga. App. 510, 512 (370 SE2d 673), citing Mitchell v. Food Giant, 176 Ga. App. 705, 709 (337 SE2d 353): “We conclude there never has been a rule in this state that liability can be shown by nothing more than the fact that the defendant’s employee was in the immediate area of the hazardous substance. In every case, the rule that states that proposition also requires a finding that the defendant’s employee had ‘an opportunity to discover and remove the hazard,’ which can only be shown ... by evidence that the hazard existed for a length of time sufficient for the defendant to discover the hazard and remove it.” There is no such evidence in this case. Further, the other Wal-Mart employee’s affidavit showed that the substance was not on the floor 15 minutes before Coffey fell. Therefore, as Coffey failed to show that Wal-Mart had actual or constructive knowledge of the substance on the floor, the trial court did not err by granting summary judgment to Wal-Mart.

3. Moreover, although Coffey attempts to rely upon the distraction doctrine, that doctrine is inapplicable to these facts. Coffey alleges that he was distracted because he was looking at the clerk while she looked for the part’s number in the catalog. Although we recognize that our Supreme Court held in Barentine v. Kroger Co., 264 Ga. 224, 225 (443 SE2d 485), that apparently looking at a sales clerk is some evidence of care for one’s own safety, because Coffey failed to show that Wal-Mart had superior knowledge of the substance on the floor whether Coffey exercised care for his own safety is not an issue that need be reached in this case. Here, Coffey claims that looking at the sales clerk was a distraction that prevented him from seeing the substance on the floor. If this was a distraction, however, it was self-induced and Coffey cannot rely upon it. Anderson v. Dunwoody North Driving Club, 176 Ga. App. 210, 212 (335 SE2d 451); Redding v. Sinclair Refining Co., 105 Ga. App. 375, 378 (124 SE2d 688).

Decided February 25, 1997.

Mundy & Gammage, John S. Husser, George B. McWhorter, for appellant.

McLain & Merritt, Howard M. Lessinger, for appellee.

Under these facts, Coffey failed to carry his burden in responding to Wal-Mart’s motion for summary judgment, and the trial court did not err by granting summary judgment for Wal-Mart.

Judgment affirmed.

Beasley and Blackburn, JJ, concur.


author: Judge Harold R. Banke.

text:
    A97A0043.
    BROOKS v. THE STATE.
    (482 SE2d 725)
   Judge Harold R. Banke.

John Wesley Brooks was convicted of selling cocaine and received a life sentence. On appeal he enumerates six errors.

This case arose after an undercover agent approached a confidential informant seeking an introduction to Brooks, his target. The confidential informant telephoned Brooks four times over two days requesting cocaine, claiming to be in trouble and in need of cash. Although Brooks informed the confidential informant that he no longer dealt drugs, ultimately he agreed to meet with her and the undercover agent, who was introduced as her nephew. Brooks admitted using the agent’s $310 to drive to Atlanta and procure the cocaine, but denied making any money on the transaction. Upon his return, Brooks provided three plastic bags containing a white powdery substance subsequently identified as cocaine. Held:

1. Brooks’ second, third, and fourth enumerations challenge evidentiary rulings barring him from exploring the relationship between his sole defense, entrapment, and the confidential informant, whose identity he clearly knew. The rulings excluded Brooks’ (1) inquiry of the undercover officer about whether the confidential informant was Brooks’ friend or associate; (2) testimony about what the confidential informant told him during her requests for cocaine; and (3) testimony about why he participated in the drug transaction.

Prior to trial, the court denied Brooks’ motion to reveal the confidential informant’s identity and quashed his subpoena for production of the confidential informant. Brooks has not appealed those decisions, but contends only that the rulings at issue prohibited him from asserting his defense.

The entrapment defense is “relevant” where, as here, the defendant concedes he committed the crime, but claims the State improperly induced him to do so. Howard v. State, 218 Ga. App. 346, 350 (2) (461 SE2d 274) (1995). “Three distinct elements embody the entrapment defense under OCGA § 16-3-25: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. [Cits.]” Wagner v. State, 220 Ga. App. 71, 72 (467 SE2d 385) (1996). If the defendant presents a prima facie case of entrapment, the burden shifts to the State to disprove the defense beyond a reasonable doubt as one of the elements of the crime. Id. at 72. A prior involvement with drugs does not per se preclude an entrapment defense. See, e.g., id. at 71. Predisposition is generally a jury question. Id. at 72.

The record shows that the trial court’s rulings essentially prevented every attempt Brooks made to establish the second and third elements of the defense. Beyond permitting testimony that the confidential informant claimed to be in trouble and needed money, the court did not allow Brooks to explore what the confidential informant said to persuade him to procure the cocaine, his relationship with her, or his motive for participating in the transaction. See OCGA § 24-3-2 (testimony explaining conduct is not hearsay). None of these inquiries compelled the confidential informant to testify, but they were essential to establishing a prima facie case of entrapment. See Gilbert v. State, 212 Ga. App. 308, 309-310 (441 SE2d 785) (1994). Restricting this line of questioning denied Brooks a meaningful opportunity to be heard and present his defense. See Dept. of Transp. v. Del-Cook Timber Co., 248 Ga. 734, 739-740 (4) (a) (285 SE2d 913) (1982); compare State v. Royal, 247 Ga. 309, 310 (1) (275 SE2d 646) (1981). This constituted an abuse of discretion. Mobley v. State, 212 Ga. App. 293, 295 (1) (441 SE2d 780) (1994) (standard of review).

Decided February 25, 1997.

James E. Millsaps, for appellant.

Alan A. Cook, District Attorney, for appellee.

Nor can we say there was a reasonable probability that the exclusion of this line of inquiry did not contribute to the conviction. Schneble v. Florida, 405 U. S. 427, 432 (92 SC 1056, 31 LE2d 340) (1972); see Johnson v. State, 238 Ga. 59, 60 (230 SE2d 869) (1976). It is well settled that a jury must be instructed on a defendant’s sole defense if there is some evidence to support the charge. Strickland v. State, 221 Ga. App. 516, 519 (2) (471 SE2d 576) (1996). Here, the trial court did not permit Brooks to present evidence on his sole defense and then did not instruct the jury on entrapment because the evidence did not support the charge. In so doing, the trial court’s rulings put Brooks in a Catch 22 which denied him the right to present all admissible evidence.

2. The trial court did not err in sustaining the State’s relevance objection to Brooks’ inquiry about how confidential informants are compensated. Because the question was too broad to relate directly to a relevant issue, such as the amount of compensation received by the confidential informant in this case, we cannot say the trial court manifestly abused its discretion. Wheeler v. State, 212 Ga. App. 638, 639 (2) (442 SE2d 906) (1994).

3. Because the remaining enumerations address issues unlikely to arise on retrial, we decline to address them.

Judgment reversed.

Pope, P. J., and Johnson, J., concur.

       Neither the facts that Brooks had a previous drug conviction nor his subsequent offer to procure more drugs for the agent precludes his defense. Wagner, 220 Ga. App. at 72-73.


text:
    A97A0184.
    BERTHOLF v. THE STATE.
    (482 SE2d 469)
   Blackburn, Judge.

Charles Keith Bertholf, Sr. was convicted of selling methamphetamine. OCGA § 16-13-30 (b). The chief evidence against Bertholf was the testimony of Michael Baxter, to whom Bertholf sold the drugs, and Bertholf’s own confession to police. On appeal, Bertholf claims that the State improperly withheld evidence from him and that his trial attorney was ineffective.

1. In a vague argument, Bertholf claims the State denied him due process of law by failing to timely provide his trial attorney with a copy of the audiotape made of his confession to police. The record shows Bertholf’s attorney was informed of the substance of this confession through the district attorney’s “open file” policy, but the prosecutor did not know the confession had been taped until the middle of trial, as the State was preparing to rest its case. The tape was never introduced into evidence or proffered into the record, either at the trial or at the hearing on Bertholf’s motion for new trial.

Bertholf’s attorney was not required to file a discovery request because he was allowed access to all materials in the State’s files. See Wright v. State, 219 Ga. App. 119, 120 (1) (464 SE2d 216) (1995) (physical precedent only). Even if Bertholf could show a violation of the statutory discovery rule, OCGA § 17-16-4 (a), he can show no harm because the audiotape was not introduced into evidence. See OCGA § 17-16-6 (strongest remedy for violation of discovery request is exclusion of suppressed evidence). To the extent Bertholf claims the State violated Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963) by withholding exculpatory evidence, he had the burden of showing that earlier disclosure of the'tape would have benefited his case and that the delayed disclosure deprived him of a fair trial. Jordan v. State, 217 Ga. App. 420, 421 (1) (457 SE2d 692) (1995). Nothing in the record shows the tape would have been beneficial to Bertholf, and the evidence indicates that both Bertholf and his counsel were cognizant of the tape’s general contents. Furthermore, although Bertholf claims earlier disclosure of the tape would have allowed for better trial preparation, or would have caused him to call additional witnesses or testify on his own behalf, “[mjere speculation by [Bertholf] that he ‘might’ have pursued a different course of action had he received the evidence earlier, is not sufficient.” Gresham v. State, 265 Ga. 730, 731 (1) (462 SE2d 370) (1995).

2. Bertholf enumerates several claims of ineffective assistance of counsel by his trial attorney. To support these claims, he must show both that his trial counsel’s performance was deficient and that the deficient performance prejudiced his case. Peterson v. State, 212 Ga. App. 147, 151 (4) (441 SE2d 481) (1994). A trial court’s findings on these issues will be affirmed unless clearly erroneous. Id.

(a) Bertholf’s trial attorney had originally represented both Bertholf and Baxter, who testified against Bertholf. The attorney had explained the possible conflict to Bertholf earlier, and when the State offered Baxter probation the attorney withdrew from representing Baxter. Bertholf claims that because his attorney had represented Baxter, the attorney was incapable of effectively cross-examining Baxter because of an actual conflict of interest. The record shows the attorney did cross-examine Baxter, explained to the jury that he had formerly represented Baxter, and obtained an admission that Baxter had been promised probation in return for his testimony.

“To establish ineffective assistance of counsel based upon conflict of interest, defendants must prove that their counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” (Punctuation omitted.) Capers v. State, 220 Ga. App. 869, 873 (2) (470 SE2d 887) (1996). “Active representation of conflicting interests connotes more than merely cross-examining a former client.” (Punctuation omitted.) Id. at 874 (2). See also Weeks v. State, 190 Ga. App. 373, 374 (1) (378 SE2d 895) (1989) (no actual conflict where attorney had previously withdrawn as-counsel for witness).

Decided February 25, 1997

Kenneth W. Krontz, J. L. Jordan, for appellant.

As in Capers, Bertholf “failed to demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. The record fails to support [Bertholf’s] argument that counsel’s prior representation of [Baxter] prevented, a thorough cross-examination of [Baxter]. . . . The record is unclear as to whether counsel received privileged information from [Baxter], Even if he did, however, that fact is not dispositive because [Bertholf] failed to demonstrate that his counsel’s prior relationship with [Baxter] limited the cross-examination or his counsel’s loyalty was divided.” Capers, supra at 874 (2). The trial court did not err. in rejecting this ineffective assistance claim.

(b) Bertholf further claims his attorney was ineffective in failing to listen to the tape. Because the tape was never placed in evidence at the hearing on the motion for new trial, Bertholf cannot show that had his attorney listened to the tape the trial would have resulted in a different verdict. See Capers, supra at 871.

(c) Finally, Bertholf asserts error in his trial attorney’s failure to request charges on the lesser included offenses of possession of methamphetamine or possession with intent to distribute. Because the only evidence against Bertholf showed that he sold the methamphetamine, and no evidence indicated that he merely possessed it or possessed it with the intent to distribute, a charge on these lesser included offenses was unwarranted and cannot be the basis for an ineffective assistance claim. See Peterson, supra at 152. Furthermore, given the fact that Bertholf apparently denied any connection with the drugs, the attorney did not err in making the strategic decision — based on his conversations with his client — not to request that the jury consider any lesser included offense. See Van Alstine v. State, 263 Ga. 1, 4 (426 SE2d 360) (1993) (decision whether to request lesser included offense charges is strategic determination for attorney, and failure to consult with client on that specific decision does not constitute ineffective assistance in every case). This enumeration is, therefore, without merit.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

Peter J. Skandalakis, District Attorney, Kevin W. Drummond, Assistant District Attorney, for appellee.


text:
    A97A0243.
    FARMER v. WHEELER/KOLB MANAGEMENT COMPANY.
    (482 SE2d 475)
   Blackburn, Judge.

Mary Virginia Farmer tripped and fell over a concrete bumper located in a parking lot owned by Wheeler/Kolb Management Company (Wheeler/Kolb). Farmer sued Wheeler/Kolb for the injuries she sustained in the fall, and the trial court granted summary judgment for Wheeler/Kolb. Arguing that the bumper was not visible because it blended in with the surrounding pavement and was obscured from view by parked cars, Farmer appeals the trial court’s grant of summary judgment.

The facts show that on August 13,1994, Farmer visited the shopping center served by the Wheeler/Kolb parking lot. As she cut across the parking lot and maneuvered between a row of parked cars, Farmer tripped and fell on an elevated concrete bumper located at the front of a handicapped parking space. The weather was clear and sunny, and the incident occurred in the afternoon. Farmer testified that prior to her fall, she had been shopping at this particular shopping center two to three times per week for four or five years. She also testified that although she was looking down at the time of her fall, she did not see the concrete bumper because its color closely matched that of the surrounding asphalt.

“At the threshold of analysis in every such premises liability case stand two well-settled legal principles: First, the owners and occupiers of property are not insurers of the safety of their invitees; and, second, in order to prevail, the plaintiff must show that the owner or occupier of the premises had superior knowledge of the alleged defect which caused the plaintiff’s fall.” Moore v. Kroger Co., 221 Ga. App. 520 (471 SE2d 916) (1996). Additionally, the rule always applies that owners and occupiers owe invitees a duty of ordinary care in keeping the premises safe. OCGA § 51-3-1.

Applying those principles to the facts of this case, summary judgment for Wheeler/Kolb was appropriate because Farmer could not show that Wheeler/Kolb had knowledge superior to her own of the existence and placement of the concrete bumper which caused her fall. Farmer testified that approximately one year before her fall, the parking lot was resurfaced. She also testified that after the lot was resurfaced, the bumpers were added to the lot, and were placed only in the handicapped parking spaces. Farmer used the parking lot between two and three times a week prior to her fall, and was aware of the existence and location of the bumpers. “Under the conditions here set out, a person acting in the exercise of ordinary care for [her] own safety should have been aware that such a hazard to walking would be likely to exist. . . . Her means of knowledge being equal with that of the defendant, it follows that she has failed to show a right of recovery based upon the acts of negligence alleged.” (Punctuation omitted.) Backer v. Pizza Inn, 162 Ga. App. 682, 683 (292 SE2d 562) (1982) (directed verdict for defendant affirmed where plaintiff tripped over railroad ties serving as parking barriers after seeing them and successfully negotiating them the same night).

Farmer’s contention that she was looking at the bumper when she fell but could not see it because it was the same color as the surrounding asphalt does not render improper the grant of summary judgment. Objective evidence in the form of a black and white photograph contained in the appellate record clearly shows that the concrete bumper and the asphalt parking lot are made of sharply contrasting materials. See Cowan v. Waffle House, 217 Ga. App. 273, 274 (456 SE2d 762) (1995) (summary judgment for premises owner affirmed where black and white photos in the record clearly showed that alleged hazardous condition was visible, despite plaintiff’s assertion that colors blended). The visibility of the bumpers is therefore established contrary to Farmer’s position, without the necessity of weighing evidence or judging witness credibility. Accordingly, her argument does not require reversal of the grant of summary judgment.

In her affidavit in opposition to the motion for summary judgment, Farmer also claims that the parking bumper which she tripped over was obscured from her view by two parked cars. This statement is inconsistent with her deposition testimony, wherein she failed to mention that cars obstructed her view of the bumper when asked to describe her fall, and where she also claimed that the bumper which tripped her was in a handicapped space in which no car was parked. Without addressing these inconsistencies, we find that Farmer’s assertion is governed adversely to her by our decision in Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811 (440 SE2d 545) (1994).

In Gaydos, the plaintiff was injured when she cut across the planted area instead of using the normal and intended route — a concrete walkway provided by the premises owner — to get where she was going. Because she voluntarily departed from the route designated and maintained by the premises owner for her safety and convenience, we held that any increased risk associated with that choice imposed upon her an equivalent duty to exercise a heightened degree of reasonable care for her own safety. Id. at 813. When the plaintiff sustained injuries from hazards existing on the short cut she had chosen, she failed to exercise ordinary care for her own safety by failing to take the safe course provided for her, and therefore was barred from recovering.

Decided February 25, 1997.

Franklin H. Thornton, for appellant.

In this case, Farmer admitted that she tripped over the bumper as she was cutting through the parking lot, walking between parked cars. By departing from the aisle of the parking lot, Farmer left the normal pedestrian route provided for her safety and convenience, and assumed whatever heightened risks were associated with walking between individually parked cars, including the presence of concrete bumpers obstructed from view. In accordance with Gaydos, she was therefore charged with the duty to exercise a heightened degree of attention for her own safety. Id. at 813. “[Farmer’s] failure to react to the diminished visibility . . . and conduct herself accordingly . . . constituted a failure to exercise ordinary care for her own safety.” Id. Accordingly, summary judgment was appropriate for Wheeler/Kolb on this issue.

Under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), if a defendant who moves for summary judgment can point out by reference to the affidavits, depositions, and other evidence of record that there is no evidence sufficient to create a jury issue with respect to at least one essential element of plaintiff’s case, viewing all evidence and reasonable inferences therefrom in a light most favorable to the non-moving party, without the necessity of weighing the evidence or determining the credibility of the witnesses, such defendant is entitled to summary judgment unless the plaintiff can come forward with specific evidence giving rise to a triable issue. Wheeler/Kolb presented evidence in support of its motion for summary judgment that Farmer failed to exercise reasonable care for her own safety, and that she had knowledge at least equal to Wheeler/Kolb’s of the dangerous condition. Shifting the burden to Farmer, review of the entire record reveals no facts or reasonable inferences which may be drawn therefrom sufficient to raise a triable issue of fact as to either of these points. Accordingly, the trial court properly granted summary judgment for Wheeler/Kolb.

Judgment affirmed.

Johnson, J, and Senior Appellate Judge Harold R. Banke concur.

Webb, Carlock, Copeland, Semler & Stair, Douglas A. Wilde, James R. Doyle II, for appellee.

       Farmer’s appellate brief and enumeration of error were filed one day late, and Wheeler/Kolb moved to dismiss the appeal on this basis. Invoking our discretion pursuant to Court of Appeals Rule 26, the motion is denied.