text:
    A96A1802.
    PATTERSON v. WHITEHEAD.
    (481 SE2d 621)
   Smith, Judge.

We revisit here the issues addressed in Macuch v. Pettey, 170 Ga. App. 467 (1) (317 SE2d 262) (1984), and Ghrist v. Fricks, 219 Ga. App. 415 (465 SE2d 501) (1995). In accord with those decisions, we conclude that the trial court erred in its sua sponte grant of a new trial on the issue of a child’s paternity. Carla Whitehead, formerly Carla Spivey, bore a daughter in 1989 during her marriage to Timothy Spivey. Timothy Spivey is shown as the child’s father on her birth certificate. The Spiveys later divorced, and their settlement agreement provides that the child and an older sibling are the “issue of the marriage” and provides for their custody and support. The parties agreed that the decree constitutes a “complete and total settlement” of any and all claims, including those for support and maintenance. The agreement also recites that the parties have considered all facts and circumstances, obtained legal advice, and understand and assent to the agreement. Whitehead and Spivey executed the agreement before a notary public. The settlement agreement was incorporated by reference in the final judgment and decree of the Fulton County Superior Court on April 26, 1990. No appeal of that judgment appears of record.

Spivey fell into arrears on his child support obligation, and Whitehead filed a petition for contempt. Two months later, while the contempt proceeding remained pending, Whitehead filed this action against Patterson, alleging that he is the younger child’s father and failing to mention either her marriage or the divorce action and decree declaring the child to be Spivey’s. Patterson answered, denying paternity and requesting a blood test. After discovering the earlier marriage and divorce decree, Patterson filed a motion to dismiss on the grounds of res judicata and estoppel by judgment.

Before a hearing on August 11, 1995, Whitehead filed a voluntary dismissal in open court. Patterson then sought attorney fees on the basis that Whitehead’s action was meritless. The trial court, however, vacated the voluntary dismissal and ordered blood tests. Patterson then moved for reconsideration on the issues of res judicata and estoppel by judgment. In response to Patterson’s motion, the trial court entered another order “sua sponte construing] Plaintiff’s petition in Civil Action File No. E-39669 to determine paternity and for temporary support against respondent Norwood L. Patterson also as an extraordinary Motion For New Trial to Timothy Glenn Spivey in Civil Action File No. D-75470, Carla Renee Spivey v. Timothy Glenn Spivey.” The trial court then, in the same order, granted the motion for the declared purpose of “obviating the problem of collateral estoppel.” Again acting sua sponte, the trial court set aside the 1990 final judgment and decree with respect to Spivey’s paternity and child support obligations. We granted Patterson’s application for interlocutory appeal.

1. Patterson first contends that the trial court lacked jurisdiction to take any action after plaintiff voluntarily dismissed this action. OCGA § 9-11-41 (a) provides that a plaintiff may dismiss voluntarily without the trial court’s permission or order. If there is a counterclaim pending, however, the action cannot be dismissed unless the counterclaim can remain pending for independent adjudication by the court. Id.

Patterson’s answer contains no counterclaim, and his prayer for attorney fees was made as part of his motion to dismiss. OCGA § 19-7-48, however, provides that any settlement, dismissal, or other termination of a paternity case must be approved by the court. The trial court therefore did not lack jurisdiction after Whitehead attempted to dismiss her petition.

2. Without the trial court’s sua sponte vacation of the 1990 divorce decree, this case is controlled by our decisions on virtually identical facts in Macuch and Ghrist. In Macuch, as here, a divorce decree recited that the child in question was born as issue of the marriage. This Court concluded that “[t]hus, the issue of the paternity of the minor child was effectively adjudicated in the prior divorce proceedings, from which no appeal was taken. Since the legitimacy of the child was recognized in the previous action, that issue is res judicata, and cannot now be raised by those who are bound by the prior judgment. [Cits.] Obviously, [the divorced former spouses], the parties to the prior action, are bound by their own divorce decree.” Id. at 468. This Court also held that although the newly alleged putative father was a stranger to and not bound by the divorce proceedings, the former wife was a party to the divorce decree and bound by its terms; she was thereby precluded from asserting a paternity claim against the newly alleged father. Id.

In Ghrist, a child was declared issue of the marriage in a divorce decree. After the divorce, the wife and her new husband sought to declare the child the offspring of a clandestine adulterous relationship they had conducted during the marriage, relying on a blood test showing a 99.14 percent probability that the new husband was the child’s father. This Court nonetheless refused to countenance “delegitimation” of the child, holding that such a result was barred by collateral estoppel and was “contrary to law, public policy and the best interest of the child.” 219 Ga. App. at 417.

3. It is apparent that Macuch and Ghrist control this case on its merits. The trial court acknowledged as much by explicitly removing the defense of collateral estoppel through the expedient of a sua sponte grant of a nonexistent “extraordinary Motion For New Trial to Timothy Glenn Spivey,” a non-party to this action. This ruling has no support in law. While the trial court attempted to justify its grant of an extraordinary motion for new trial by citing Roddenberry v. Roddenberry, 255 Ga. 715 (342 SE2d 464) (1986), and Dept. of Human Resources v. Browning, 210 Ga. App. 546 (436 SE2d 742) (1993), neither case is applicable here.

In Roddenberry, a former husband filed an extraordinary motion for new trial, seeking to set aside a divorce decree declaring a child’s paternity after a blood test revealed he could not be the child’s father. The Georgia Supreme Court held that extraordinary motions for a new trial on the basis of newly available evidence are not favored: “The requirements for granting an extraordinary motion for new trial are clear. On an extraordinary motion for a new trial based on newly discovered evidence, it is incumbent on the movant to satisfy the court: (1) that the newly discovered evidence has come to his knowledge since the trial', (2) that want of due diligence was not the reason that the evidence was not acquired sooner; (3) that the evidence was so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness is attached to the motion or its absence accounted for; and (6) that the new evidence does not operate solely to impeach the credit of a witness.” (Citations and punctuation omitted; emphasis supplied.) Id. at 717. Applying this standard to the appellant putative father in Roddenberry, the Georgia Supreme Court held that he had failed to meet his burden of showing due diligence in acquiring the blood test evidence, because he could have obtained it at the time of the parties’ divorce. 255 Ga. at 717.

In Browning, Browning sought to correct a “mutual mistake” in an existing paternity action after a blood test revealed he was not the father of the child. The trial court construed his “Petition for a Blood Test” as an extraordinary motion for new trial. Even with this newly discovered evidence, the case was remanded for a determination of whether Browning exercised due diligence in not having the test performed earlier. 210 Ga. App. at 548 (1) (b).

The grant or denial of an extraordinary motion for new trial is reviewed under an abuse of discretion standard, Vroman v. Peeples, 173 Ga. App. 592 (327 SE2d 563) (1985), but when an extraordinary motion for a new trial completely fails to set forth the supporting facts, the trial court abuses its discretion in granting it. Hightower v. Krystal Co., 204 Ga. App. 823, 824 (420 SE2d 762) (1992). We find that the trial court abused its discretion in entering the orders complained of here. This is true whether (as it appears) the trial court construed Whitehead’s petition as a fictitious extraordinary motion for new trial by Whitehead’s former husband, Spivey, or we consider the petition as a similar motion by Whitehead herself.

Here, the trial court had no basis on which to construe Whitehead’s paternity suit as Spivey’s extraordinary motion for new trial. The record reflects that Spivey is not a party to this action and has filed no pleadings. It appears that he is unaware of the pendency of this action. Certainly he has not fulfilled Roddenberry’s explicit requirements or the heavy burden placed upon the movant on an extraordinary motion for new trial because he has made no showing whatsoever.

Whitehead is likewise unable to make any showing of due diligence. As noted in Roddenberry, the blood test under OCGA § 19-7-45 was available at the time of the divorce in 1990. 255 Ga. at 717. Whitehead knew at the time of the divorce the person or persons with whom she had sexual relations during the probable time of conception; due diligence required the use of a blood test if she had any doubt regarding the child’s paternity. Finally, it appears from the face of the settlement agreement that Whitehead knew at the time of the divorce that the child was conceived during her “bona fide state of separation” from Spivey.

“The public policy of this state favoring the institution of marriage and the legitimacy of children born during a marriage is the strongest public policy recognized by law.” Ghrist v. Fricks, supra, 219 Ga. App. at 418. Moreover, this Court will not relieve parties of the consequences of their own fraudulent conduct. 219 Ga. App. at 421 (1). Finally, the setting aside of a judgment without notice or a hearing afforded to one of the parties to that judgment raises substantial due process concerns. See generally Green v. Green, 263 Ga. 551, 554-555 (437 SE2d 457) (1993). The trial court erred in construing Whitehead’s petition as an extraordinary motion for a new trial and in setting aside the 1990 final judgment and decree.

Decided February 14, 1997.

Alembik, Fine & Callner, Bruce R. Steinfeld, for appellant.

Ted H. Reed, for appellee.

Judgment reversed.

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

       We note that Patterson contends Whitehead submitted this order ex parte.

       We must assume that this fictitious motion was based on newly discovered evidence, since no such motion was ever actually filed. Whitehead makes no pertinent allegations in her petition.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A96A1851.
    GREENE v. JENKINS et al.
    (481 SE2d 617)
   Smith, Judge.

In March .1991, John Greene, Jr. and Michael Byrd met at a nightclub in Albany, Georgia. Sometime that night, or during the early hours of the next morning, they left the club together in a Jeep that belonged to Byrd’s mother and stepfather, Sandra and Jerry Jenkins. The Jeep was involved in an accident. Greene brought this action against Jerry and Sandra Jenkins, alleging that they negligently entrusted their vehicle to Byrd, knowing he had been drinking and was exhausted, and that their negligence caused him to suffer injuries when the vehicle struck a tree. In two amended complaints, Greene also alleged that Byrd was an agent or family member of the Jenkinses and that his negligence was imputed to them as principals. Greene and Byrd each claimed that he was a passenger in the Jeep and that the other was driving. The trial court granted summary judgment to the Jenkinses, concluding that Greene could not recover under a negligent entrustment theory and that the Jenkinses were not liable under the family purpose doctrine. This appeal ensued.

1. Greene enumerates as error the trial court’s conclusion that he could not recover against the Jenkinses under a negligent entrustment theory. This doctrine provides that “a party is liable if he entrusts someone with an instrumentality, with actual knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness. [Cits.]” (Emphasis supplied, footnote omitted.) Gunn v. Booker, 259 Ga. 343, 347 (3) (381 SE2d 286) (1989). Here, Greene did not claim that the Jenkinses had knowledge of a “habit of recklessness” but sought imposition of liability on a theory that Byrd’s mental condition caused him to be incompetent to drive. It was therefore incumbent on Greene to show that the Jenkinses had actual knowledge that Byrd was incompetent to drive due to intoxication and/or exhaustion. See Bragg v. Over & Under Gen. Contractors, 148 Ga. App. 227, 228-229 (2) (251 SE2d 1) (1978).

Construed in Greene’s favor, evidence was presented that Byrd and the Jenkinses went out to dinner, to a country club, and to a nightclub in Albany known as “P-2” upon Byrd’s surprise return earlier that day from two years of military service in Germany. Ms. Jenkins testified that she and her husband left with friends a short time after they arrived at P-2, while Byrd stayed on and visited with his own friends, including Greene. With Mr. Jenkins’s acquiescence, she left their Jeep keys with Byrd. Although Ms. Jenkins knew that Byrd had drunk two beers before they went to P-2, she did not know whether Byrd had ordered drinks at P-2 because he sat at another table with friends. Ms. Jenkins’s unequivocal affidavit testimony was that at the time she gave Byrd keys to the Jeep, he “did not appear in any way to be incapable of driving safely.”

Also, Greene was not present when Ms. Jenkins gave Byrd the Jeep keys, and he admitted that he was not aware of Byrd’s condition at that time. Despite Greene’s assertion that the Jenkinses knew that Byrd had “been drinking all night” because Ms. Jenkins “said so,” he admitted that he had no evidence regarding the Jenkinses’ knowledge of the amount of alcohol Byrd had that night. He further admitted that he had no knowledge that at the time Ms. Jenkins gave Byrd the keys Byrd was “so exhausted or tired that he would have been incapable of driving.” In fact, Greene stated that he would not have ridden with Byrd if he believed that Byrd was too intoxicated or exhausted to drive, or if he thought that Byrd was an unsafe driver. Consequently, the evidence is uncontradicted that at the time Ms. Jenkins turned the Jeep keys over to Byrd, even though she knew he had been drinking, she did not have actual knowledge that he was incompetent to drive because of intoxication or exhaustion. Because it was incumbent on Greene to show actual knowledge that Byrd was incapable of driving, Greene’s claim for negligent entrustment fails. Cotton v. Toole, 183 Ga. App. 547 (359 SE2d 368) (1987) (physical precedent only) (no evidence that entruster had actual knowledge of entrustee’s state of intoxication at time of entrustment). See also Gunn v. Booker, supra, 259 Ga. at 346-347 (3).

2. Greene also enumerates the trial court’s conclusion that the Jenkinses were not liable under the family purpose doctrine. To impose vicarious liability on the owner of a vehicle for the alleged negligence of the driver of the vehicle under the family purpose doctrine, one must show four factors: (1) the non-negligent defendant has an interest in or control over the vehicle; (2) he or she made the vehicle available for family, rather than business, use; (3) the driver must be a member of the defendant’s immediate household; and (4) the vehicle must have been driven with the defendant’s permission or acquiescence. Wingard v. Brinson, 212 Ga. App. 640, 641 (1) (442 SE2d 485) (1994). These factors “are necessary preconditions” to imposition of vicarious liability. Id. The trial court concluded that one of these preconditions was not satisfied — that Greene failed to establish that Byrd was a member of the Jenkinses’ immediate household when the accident occurred. We agree.

Ms. Jenkins testified via affidavit that on March 23, 1991, the date of the accident, Byrd had just been discharged from the military. Between his June 1986 high school graduation and joining the armed services in May 1988, Byrd enrolled in Georgia Southern College, worked, and paid his own tuition. While working and attending college in Statesboro, he moved into his own home and rented it at his own expense. He removed all of his personal belongings from the Jenkinses’ household. In September 1990, while Byrd was in the military, the Jenkinses and their two children then living at home moved from their Oak Hill Farms address where Byrd had lived until he graduated from high school into a home on Archie Way in Lees-burg, where they resided when the accident occurred. That home had three bedrooms, all fully occupied by Mr. and Mrs. Jenkins and their two younger children. Byrd never had a room at that residence. Ms. Jenkins further testified that she considered Byrd “in 1991 and earlier to be independent and not subject to my management and control nor that of his step-father, Jerry Jenkins.” She stated that “Byrd never lived or resided in the home located at Archie Way and was not considered a member of our household at that address.” She also testified that “[o]n the day before the incident of concern in this lawsuit, Michael Byrd came to our house to visit. He did not come to live or reside.” Ms. Jenkins’s daughter similarly testified via affidavit that Byrd never lived at the Archie Way address and was not a part of the immediate household.

Although the record does not show where Byrd established a permanent residence after his discharge from the military, it does reveal that he was not a member of the Jenkinses’ immediate household when the accident occurred. He moved out of the Jenkinses’ home into a house in another town and paid the rent himself long before the accident occurred, and he then joined the armed services and lived in Germany. Although he may have visited the Jenkinses at their Archie Way residence when he returned from Germany, the record does not reveal that Byrd was a member of the immediate household when the accident occurred.

We are not persuaded by Greene’s attempts to show the existence of factual issues as to whether Byrd was a member of the household. He points to several documents, including military records, a motor vehicle report, and a voter registration list referencing a P.O. Box 565 or Oak Hill address, where Byrd lived before he graduated from high school and before the Jenkinses moved to Archie Way. These documents create no material issues; several were dated over two years before the accident occurred and before the Jenkinses moved to the Archie Way address. The others simply provided a post office box. Neither those documents prepared before the accident nor even those dated after the accident provide insight as to whether Byrd was a household member at the Archie Way address.

Greene also points to Byrd’s signed statement, made several days after the accident, in which his address was handwritten as P.O. Box 565, Archie Drive, Leesburg. This handwritten language followed the printed language “I live at.” In this statement is the recitation “I do remember bits and pieces of the trip home as a passenger.” Greene further references Byrd’s testimony, at Greene’s implied consent hearing, that “[w]e left our house and went to the Moose Lodge” on the night of the accident. We note first that Byrd’s testimony at Greene’s implied consent hearing was not admissible in this case. See Green v. State, 207 Ga. App. 800, 801 (429 SE2d 169) (1993). Even if admissible, Byrd’s testimony and statement do not reveal the Jenkinses’ intent concerning Byrd’s residence; as an adult, Byrd could only reside at his parents’ “home with their permission and consent. After majority there is no parental obligation to maintain, protect or support a child. [Cits.]” Tuttle v. America First Ins. Co., 187 Ga. App. 68 (369 SE2d 342) (1988).

Finally, Greene points to the Jenkinses’ use of the word “home” and thereby attempts to show the existence of material issues of fact concerning Byrd’s status as a member of the Jenkinses’ immediate household. He points to a written statement, purportedly made by Ms. Jenkins, in which she recites that she asked Byrd “how he got home.” He also references Ms. Jenkins’s testimony at the implied consent hearing in Greene’s criminal case that she did not know Byrd was “coming home” from the military and that he “got home late” in the afternoon. Similarly, she testified at that hearing that the night of the accident “was his first night home.” She remembered thinking to herself while still at the P-2 that Byrd would “be home shortly,” and when she gave Byrd the keys, she told him to “come home with the vehicle.” In response to a question concerning when she realized Byrd had not arrived home, she responded, “When you have a child out you just never quite sleep until they’re home.” Mr. Jenkins made similar statements about Byrd’s having arrived home from the military.

Decided February 14, 1997.

Ralph L. Phillips, for appellant.

Cannon, Meyer von Bremen & Meier, Michael S. Meyer von Bremen, for appellees.

In light of Ms. Jenkins’s unequivocal testimony concerning Byrd’s residence, these references do not evidence any intent by the Jenkinses that Byrd become a resident of their immediate household upon his return from Germany. First, we are not convinced that Greene properly introduced Ms. Jenkins’s statement and testimony, which were from another case. Even assuming that Greene properly introduced this testimony, however, Ms. Jenkins’s affidavit recited that Byrd was not a member of the Archie Way household and that he had never lived there. Greene points to nothing rebutting this direct evidence but instead urges us to infer from their use of the word “home” that the Jenkinses permitted Byrd to become a member of their household. While it is possible that the Jenkinses’ use of the word “home” is as contended by Greene, it is equally likely that the term was used in the most generic, idiomatic, and colloquial of senses — as when adults speak of going “home for the holidays,” or when parents refer to their adult children as coming “home to visit,” or when nostalgic moments bring to mind memories of “home sweet home.” The inference that Greene asks us to draw is based on the merest of speculation concerning the use of the word “home.” And as aptly noted by the trial court, speculation and conjecture cannot form the basis of an inference. See Green v. Sams, 209 Ga. App. 491, 498 (1) (433 SE2d 678) (1993). Greene simply has presented no competent evidence rebutting the unequivocal testimony that Byrd never lived at the Archie Way address, and the trial court did not err in granting the Jenkinses’ motion for summary judgment with regard to the family purpose doctrine.

Judgment affirmed.

Andrews, C. J, and Senior Appellate Judge Harold R. Banke concur.

       Byrd subsequently died of unrelated causes on December 3, 1992.

       We note that Greene was convicted of DUI as a result of this incident. See Green [sic] v. State, 207 Ga. App. 800 (429 SE2d 169) (1993). During the trial of the criminal case he claimed, as he does here, that he was a passenger in the vehicle when he and Byrd left the nightclub.

       He did not, for example, cross examine Ms. Jenkins regarding her use of the word “home,” as prior inconsistent testimony. See OCGA § 24-9-83. Instead, he merely attached her statement and portions of her testimony to the record in response to the Jenkinses’ motion for summary judgment.


text:
    A96A2089.
    LAWSON v. THE STATE.
    (481 SE2d 856)
   Smith, Judge.

Bernard Lamar Lawson was indicted on one count of robbery by sudden snatching, OCGA § 16-8-40 (a) (3), and one count of violation of the Georgia Controlled Substances Act by possessing cocaine, OCGA § 16-13-30 (a). Lawson was found guilty by a jury of robbery by sudden snatching and possession of cocaine, his motion for new trial was denied, and he appeals.

Construed to support the verdict, the evidence shows that a vehicle driven by Lawson rear-ended the vehicle of the victim, a church secretary, at a stop sign on a Fayette County road. As they were talking about insurance, the victim went to the passenger side of her car to obtain her insurance card and write down the information on it.. Lawson followed her to the passenger door, reached into the car, and took a bag containing backup tapes for the church’s computer. He ran back to his car, and he and his companion sped away.

The police were notified and quickly located Lawson’s vehicle, which had been stolen in a carjacking two days earlier. Lawson and his companion led the police on a high-speed chase, narrowly missed a sheriff’s deputy directing traffic, evaded a rolling roadblock by rarm ming a patrol car, and continued to flee until Lawson lost control of the vehicle after the police shot out the tires. The stolen bag was found in the vehicle, along with a smoking device containing cocaine residue. After his arrest, Lawson signed a waiver of rights form and made a custodial statement in which he admitted hitting the victim’s vehicle and taking her bag and stated that he “was on drugs real bad.”

1. Lawson contends that the State failed to prove all the elements of robbery by sudden snatching, specifically that no force was shown and that the robbery was not from “the immediate presence” of the victim. For these reasons, he asserts, he was entitled to both a directed verdict on that count and a jury instruction on the lesser included offense of theft by taking. These contentions are without merit.

As Lawson himself acknowledges, “[f]orce is implicit in sudden snatching, both as a fact and as a legal proposition, the force being that effort necessary for the robber to transfer the property taken from the owner to his possession.” (Citations and punctuation omitted.) Dotson v. State, 160 Ga. App. 898, 899 (1) (288 SE2d 608) (1982). “In order to prove a case of robbery by suddenly taking or carrying away the property of another without his consent, it is only necessary to show that the person robbed was conscious that something was being taken away from him, and that for any reason he was unable to prevent it; and consequently the only difference now between robbery of this class and larceny from the person is that in the latter case the property is abstracted without the knowledge of its possessor; but if the possessor becomes conscious, even in the taking, that his property is being taken away from him, and this knowledge is obtained before the taking is complete, the offense of robbery is committed.” (Citations and punctuation omitted.) Bryant v. State, 213 Ga. App. 301, 302 (444 SE2d 391) (1994).

As in Bryant, in which the victim saw the defendant take her purse from her shopping cart “no more than two feet away from her,” id. at 303, the victim here saw Lawson as he “reached in and grabbed” her bag from the floor of her vehicle as both of them were standing by the passenger door. Additionally, “the trial judge is justified in refusing to charge a lesser included offense when there is no evidence of the lesser included offense. [Cit.]” Id. at 302. The trial court did not err in refusing to direct a verdict of acquittal in favor of Lawson on the charge of robbery by sudden snatching, and it did not err in refusing to instruct the jury on a lesser included offense of theft by taking.

2. In a related enumeration, Lawson complains that the trial' court improperly addressed the jury regarding Lawson’s contentions that the lesser offense of theft by taking could be found. After the trial court repeatedly stated in the charge conference that there would be no charge on a lesser included offense of theft by taking, Lawson’s counsel attempted to raise this issue in closing argument. The trial court interrupted Lawson to instruct the jury that under the evidence, “this is either robbery by sudden snatching or it’s nothing, under count one.” As noted in Division 1, Lawson is incorrect in his assertion that the facts presented showed a lesser included offense of theft by taking. Moreover, he failed to object to the trial court’s statement, either at the time of the trial court’s statement or after the trial court’s charge to the jury, and has failed to preserve the alleged error for review. Hopkins v. State, 263 Ga. 354, 356 (2) (434 SE2d 459) (1993); Walker v. State, 258 Ga. 443, 444 (3) (a) (370 SE2d 149) (1988).

3. Lawson contends that the State failed to comply with the criminal discovery provisions of OCGA § 17-16-1 et seq. with respect to a statement made by Lawson when he was taken into custody, a statement made by the victim, and a scientific report of a cocaine test. Lawson’s counsel, however, waived any objection to the production of Lawson’s statement: “I have agreed to allow them to bring in the statement. . . without the ten days.” Counsel also acknowledged that he saw the victim’s statement in the State’s file when he inspected it pursuant to the State’s “open file policy.” He did not remember if he saw the scientific report in the file; the prosecutor stated positively that the scientific report had “always been in there and always been a part of both this file and the file of the codefendant.”

Lawson contends, however, that the State was obligated to serve him with copies of all these materials and that upon its failure to do so, the trial court should have stricken all related testimony. We disagree. Although the criminal discovery statutes use a variety of terms to describe the State’s duty to comply with discovery, the statutes applicable here do not require actual service upon defense counsel.

(a) In the case of Lawson’s statement to law enforcement officers shortly after his arrest, the language of OCGA § 17-16-4 (a) (1) is plain: “The prosecuting attorney shall . . . disclose to the defendant and make available for inspection, copying, or photographing any relevant written or recorded statements made by the defendant.” (Emphasis supplied.) This language contrasts with the express requirement of service of the statements of witnesses regarding an alibi defense in OCGA § 17-16-5 (a) and (b), as well as with another provision of the same Code section requiring that the State “furnish” to the defendant a copy of his criminal history. OCGA § 17-16-4 (a) (2). See also OCGA § 17-16-3 (accused “shall be furnished” with copy of indictment and list of witnesses). The term “furnish” has been construed by this Court to require service. Driver v. State, 188 Ga. App. 301, 302 (2) (372 SE2d 841) (1988) (examining criminal discovery provisions of former OCGA §§ 17-7-110, 17-7-210, and 17-7-211).

Under the rules of statutory construction, we must construe all related statutes together, give meaning to each part of the statute, and avoid constructions which result in surplusage and meaningless language. City of Buchanan v. Pope, 222 Ga. App. 716, 717 (1) (476 SE2d 53) (1996). Moreover, we must presume that, at the time OCGA § 17-16-1 et seq. was enacted, the legislature was aware of the existing law and the Driver decision. Hart v. Owens-Illinois, Inc., 250 Ga. 397, 400 (297 SE2d 462) (1982). Had the legislature wished to require that the State “furnish” or “serve” a defendant’s statements under OCGA § 17-16-4 (a) (1), as it did provide under other Code sections in the same title, it could have done so. We conclude that this language requires only that the State make a defendant’s statements available for inspection, copying, or photographing, not that such statements be served upon the defendant.

(b) We reach the same conclusion with respect to the victim’s statement. OCGA § 17-16-7 provides: “the prosecution . . . shall produce for the opposing party any statement of any witness.” Using the same rules of statutory construction, we conclude that the legislature did not intend for such statements to be “furnished” or “served” as those terms are used in other Code sections in the same title. The language of OCGA § 17-16-7, requiring that the State “produce for the opposing party” statements of witnesses, is closer to the “make available” language of OCGA § 17-16-4 (a) (1) and the “permit... to inspect and copy” language of OCGA § 17-16-4 (a) (3), than the “shall furnish” language of OCGA § 17-16-8 or the “shall serve” language of OCGA § 17-16-5 (a) and (b).

(c) As for the scientific test for the presence of cocaine, OCGA § 17-16-4 (a) (4) provides that the State shall “permit the defendant ... to inspect and copy or photograph a report... of scientific tests or experiments.” As noted above, the meaning of this language is the same as that of OCGA § 17-16-4 (a) (1) and (3), and we conclude that it likewise does not require service upon the defendant, but only making the reports of such tests available for inspection and copying. While Lawson’s counsel stated that he could not remember whether he saw the drug analysis report in the State’s file, the prosecutor stated that it was there. To the extent that this constituted a dispute of fact, the trial court did not abuse its discretion in resolving it in favor of the State. See Hodge v. State, 262 Ga. 242, 243 (2) (416 SE2d 518) (1992).

Finally, even if error occurred in production of these documents, “error must be shown to have been harmful before it will be deemed reversible error. [Cit.]” Driver v. State, supra, 188 Ga. App. at 302-303 (3). Lawson either acknowledged that he saw the documents in question or could not remember if he saw them; he cannot show harm merely by insisting that the State should have served him. “Because the prosecution had an ‘open file policy’ in this case, the existence of the [information] was known or constructively known to [Lawson] because that information appeared in the State’s file.” Mosely v. State, 217 Ga. App. 507, 508 (2) (458 SE2d 165) (1995). Moreover, Lawson failed to raise this issue until after two witnesses had already testified, and it therefore was untimely.

The trial court did not err in refusing to strike the testimony regarding Lawson’s statement, the victim’s statement, or the cocaine test.

4. Lawson also contends the trial court erred in its recharge of the jury on the issue of constructive possession by adding material not previously charged. Generally, the scope and content of additional jury instructions are left to the sound discretion of the trial court, and the trial court may address only the jury’s request on a particular point or give additional instructions. Looking to both the recharge and the original charge on the issue of constructive possession, and considering the jury instructions as a whole, we find no error and no likelihood that the jury was confused or misled. Miller v. State, 221 Ga. App. 718, 719-720 (1) (472 SE2d 697) (1996).

Decided February 14, 1997.

Saia & Richardson, Joseph J. Saia, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

5. Finally, Lawson enumerates as error a portion of the trial court’s charge in which the trial court, in giving the jury the particulars of the indictment, mistakenly stated “the material allegations which must be . . . proven are that this defendant, Bernard Lamar Lawson, did . . . commit the offense of possessing marijuana” instead of cocaine as charged in the indictment. The trial court correctly identified the offense as possession of cocaine in the remainder of the charge, and the indictment reflecting the correct charge was sent out with the jury.

A mere verbal slip that clearly could not have misled or confused the jury, when considered in the light of the entire charge, is not reversible error. Because the trial court correctly and repeatedly instructed the jury that Lawson was charged with possession of cocaine, and because the indictment went out with the jury, we conclude that the court’s misstatement was harmless. Tenant v. State, 218 Ga. App. 620, 622 (462 SE2d 783) (1995). See also Hall v. State, 192 Ga. App. 151, 152 (4) (384 SE2d 428) (1989) (verbal slip in which trial court referred to a purchase of cocaine rather than marijuana harmless error).

Judgment affirmed.

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

       Lawson also was charged with one count of hit and ran, OCGA § 40-6-270 (c), but that charge was nolle prossed.

       Lawson elected to proceed under the criminal discovery provisions of OCGA § 17-16-1 et seq. by filing the written notice prescribed by OCGA § 17-16-2 (a).

       As aptly observed by the trial court, “If you saw it, you knew what was in it, wouldn’t that be harmless error? ... I can’t see how you could possibly be hurt.”


author: Eldridge, Judge. Beasley, Judge,

text:
    A96A2128.
    GLISSON v. HOSPITAL AUTHORITY OF VALDOSTA & LOWNDES COUNTY et al.
    (481 SE2d 612)
   Eldridge, Judge.

This is an action for medical malpractice wherein the trial court granted appellees’ motion to dismiss on April 12, 1996, based upon appellees’ assertion that appellant failed to comply with the provisions of OCGA § 9-11-9.1 (b).

On November 3, 1995, appellant filed a medical malpractice action against appellees. Appellant contacted an attorney only eight days prior to the running of the statute of limitation. Appellant did not attach an expert’s affidavit to the complaint when it was originally filed, as is required by OCGA § 9-11-9.1 (a), because there was not sufficient time to do so before the statute of limitation ran. However, in Count 1, paragraph 20 of the complaint, appellant states “[t]he affidavit as required by law will be filed in accordance with OCGA § 9-11-9.1 (b) since the complaint is filed within ten days of the expiration of the applicable statute of limitations.” Appellant also states in Count 2, paragraph 28, of her complaint that “[t]he applicable statute of limitations will expire within 10 days of the date of this filing.” Appellant did not plead in the original complaint that the appellant was prevented from obtaining the affidavit because there was not sufficient time to do so before the statute ran, since the lawyers had not been retained more than ten days prior to the running of the statute of limitation: “The affidavit as required by law shall be filed in accordance with OCGA § 9-11-9.1 (b) since the complaint is filed within ten days of the expiration of the applicable statute of limitations.” Subsequently, on December 13, 1995, appellant filed the affidavit of Larry R. Leichter, M.D., which satisfied the affidavit requirements under OCGA § 9-11-9.1.

On December 18, 1995, appellees answered appellant’s complaint, alleging that appellant failed to comply with OCGA § 9-11-9.1 including, but not limited to, OCGA § 9-11-9.1 (b), because appellant did not specifically plead in the complaint that because of time restraints, an affidavit could not be prepared and filed at the time the original complaint was filed. On that basis, appellees requested that appellant’s complaint be dismissed.

On January 10, 1996, appellant filed an amendment to her complaint, amending paragraph 28 to state that “[t]he affidavit as required by law shall be filed in accordance with OCGA § 9-11-9.1 (b) since this complaint is filed within ten (10) days of the expiration of the applicable statute of limitations. Plaintiff first consulted the undersigned counsel on October 30, 1995, a mere eight days prior to the expiration of the statute of limitations. Plaintiff’s counsel was unable to obtain an affidavit because of the aforementioned time constraints. Therefore, the plaintiff is invoking the automatic fourty-five [sic] (45) day extension provided for in OCGA § 9-11-9.1 (b).”

On April 11, 1996, the trial court granted appellees’ motion, even though appellant had raised equal protection and due process issues in opposition to appellees’ motion to dismiss, which issues attacked the necessity to plead the reason for the delay and non-amendability of the complaint as being unconstitutionally applied. Appellant appealed the superior court’s dismissal to the Georgia Supreme Court, alleging that OCGA § 9-11-9.1 (b) is unconstitutional because it violates due process of law and equal protection rights and violates the prohibition against retroactive laws.

The Supreme Court has exclusive jurisdiction over appeals challenging the constitutionality of a statute for the first time when the constitutional issue has not been previously passed upon by the Supreme Court. Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1). However, the Supreme Court, on its own motion, entered an order holding that the appeal raised only issues of statutory construction, rather than constitutional issues, and transferred the appeal to this Court. The transfer represents the Supreme Court’s determination that the case sub judice is not a case involving a constitutional issue over which the Supreme Court has exclusive jurisdiction. Atlanta Independent School System v. Lane, 266 Ga. 657 (469 SE2d 22) (1996). The Supreme Court has previously held that OCGA § 9-11-9.1 as enacted by the General Assembly is constitutional. Lutz v. Foran, 262 Ga. 819 (427 SE2d 248) (1993).

However, a constitutional statute can be unconstitutionally applied. Therefore, this Court has jurisdiction to construe OCGA § 9-11-9.1 (b) in order to determine if the trial court erred in its application of that statute by granting appellees’ motion to dismiss and to determine if OCGA § 9-11-9.1 (b), as applied by this Court to the factual scenario in Keefe v. Northside Hosp., 219 Ga. App. 875 (467 SE2d 9) (1996), impacts upon appellant’s rights of equal protection and due process under the law; such applications of OCGA § 9-11-9.1 were the enumerations of error presented to the Supreme Court for determination.

1. OCGA § 1-3-1 (a) requires that "[i]n all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” “A statute is presumed to be valid and constitutional until the contrary appears.” Williams v. Ragsdale, 205 Ga. 274, 277 (53 SE2d 339) (1949). "An act of the General Assembly carries a strong presumption of constitutionality, and therefore, should not be set aside unless it ‘plainly and palpably’ conflicts with a constitutional provision.” City of Atlanta v. MARTA, 636 F2d 1084 (5th Cir. 1981). “ ‘It is the duty of courts, to put such a construction upon statutes, if possible, as to uphold them and carry them into effect.’ ” Lamons v. Yarbrough, 206 Ga. 50 (55 SE2d 551) (1949), quoting Winter v. Jones, 10 Ga. 190 (1851). “That construction which will uphold a statute in whole and in every part is to be preferred.” Exum v. City of Valdosta, 246 Ga. 169, 170 (1) (269 SE2d 441) (1980). Under such standards of statutory construction, to avoid a constitutional issue, and under the transfer order from the Supreme Court directing that the case sub judice be decided by application of statutory construction, this Court will address on appeal the issue of the validity of the amendment to appellant’s complaint filed under OCGA § 9-11-9.1 (b), because such enumeration of error is the sole underlying basis for the constitutional errors enumerated.

First, it is important to note that this case is distinguishable on both the facts and the law from Keefe v. Northside Hosp., supra. In Keefe, the plaintiffs never amended or sought to amend their complaint to include the language of OCGA § 9-11-9.1 (b) or the substantial equivalent. In the case sub judice, appellant immediately amended the complaint to provide language in full compliance with OCGA § 9-11-9.1 (b). Further, the amendment to the complaint in the instant case in order to plead the language of OCGA § 9-11-9.1 (b) occurred prior to the trial court’s ruling and prior to the Keefe decision. Moreover, that portion of the Keefe decision which states that the failure to include the language of OCGA § 9-11-9.1 is a situation “which cannot be cured by amendment pursuant to OCGA § 9-11-15,” id. at 877, is obiter dictum; it was outside the holding and facts of Keefe, was unnecessary in order to decide the issues and facts properly before the court for decision, and, thus, “lack[ed] the force of an adjudication.” White v. State, 213 Ga. App. 429, 430 (445 SE2d 309) (1994).

Additionally, our decision in Thompson v. Long, 201 Ga. App. 480, 481 (1) (411 SE2d 322) (1991), permitted amendment to the body of the complaint in order to allow for the pleading of the provisions of OCGA § 9-11-9.1 (b). Keefe distinguished Thompson v. Long on the basis that the complaint was filed pro se and the amendment was filed by subsequently retained counsel. Thus, Keefe properly distinguished Thompson v. Long on the facts and law, because in Keefe there was no amendment whatsoever to the pleadings under OCGA § 9-11-9.1 (b). However, Thompson v. Long is controlling in the case sub judice, because in both Thompson v. Long and in the instant case a factual pattern existed wherein there was an amendment in order to add the affidavit within 45 days, the filing of the affidavit within such time, and an amendment to the body of the pleadings to set forth such right under OCGA § 9-11-9.1 (b), a scenario which did not exist in Keefe. In Thompson v. Long, this Court found that OCGA § 9-11-15 did permit amendment to the body of the complaint under OCGA § 9-11-9.1 (b), pursuant to the authority of St. Joseph’s Hosp. v. Nease, 259 Ga. 153, 154 (1) (377 SE2d 847) (1989). See also Bell v. Figueredo, 259 Ga. 321 (381 SE2d 29) (1989); Patterson v. Douglas Women’s Center, P.C., 258 Ga. 803 (374 SE2d 737) (1989); Glaser v. Meek, 258 Ga. 468 (369 SE2d 912) (1988); Waldroup v. Greene County Hosp. Auth., 204 Ga. App. 256 (419 SE2d 36) (1992); Reid v. Brazil, 193 Ga. App. 1 (387 SE2d 1) (1989); Hosp. Auth. of Fulton County v. McDaniel, 192 Ga. App. 398 (385 SE2d 8) (1989). Moreover, permitting amendment to a complaint filed under OCGA § 9-11-9.1 is consistent with the intent of the legislature as demonstrated by a review of the legislative history of the act.

The legislative purpose for OCGA § 9-11-9.1 was “to reduce the number of frivolous malpractice suits being filed” where the plaintiff did not have an expert to testify as to a single act of professional negligence in contravention of the professional standard of care. 0-1 Doctors &c. Co. v. Moore, 190 Ga. App. 286, 288 (1) (378 SE2d 708) (1989). In Ga. L. 1987, p. 887, § 3, the General Assembly provided the exception contained in OCGA § 9-11-9.1 (b); in neither the caption nor the body of the act does the General Assembly express a prohibition from amending the complaint itself, except in regard to the affidavit: Ga. L. 1989, p. 419, § 3, added OCGA § 9-11-9.1 (e) and (f), which prohibited amendments to add affidavits that did not exist at the time the initial complaint was filed. However, OCGA § 9-11-9.1 (b) provided an exception to that rule. Furthermore, nothing in the caption, or in these new subsections, prohibited the use of OCGA § 9-11-15 to amend the body of the complaint to plead OCGA § 9-11-9.1 (b) for the first time by amendment, as was done in the case sub judice.

In addition, the Supreme Court decided St. Joseph’s Hosp. v. Nease, supra, after the passage of Ga. L. 1989, p. 419, § 3, but prior to it becoming effective. In St. Joseph’s Hosp. v. Nease, the Supreme Court determined that amendments were permissible under Ga. L. 1987, p. 887, § 3, even to amend to add an affidavit; upon becoming effective, the subsequent amendment to the act prohibited only amendments to add affidavits not in existence at the time of filing the complaint. In the case sub judice, appellant only amended the body of the pleadings to add specific language, thereby complying with both the statute and with case law.

“A statute is to be construed in accordance with its real intent and meaning and not so strictly as to defeat the legislative purpose, Johnson v. Housing Auth. of Atlanta, 198 Ga. App. 816[,] 817 (403 SE2d 97) (1991), and should be read according to the natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation. Burbridge v. Hensley, 194 Ga. App. 523, 524 (1) (391 SE2d 5) (1990).” HCA Health Svcs. of Ga. v. Hampshire, 206 Ga. App. 108, 109 (424 SE2d 293) (1992). However, when reasonably possible, the court should interpret a statute to give meaning to all parts of the statute and not to make any portion surplusage, unless no other construction is possible. State of Ga. v. C. S. B., 250 Ga. 261 (297 SE2d 260) (1982); Undercofler v. Colonial Pipeline Co., 114 Ga. App. 739 (152 SE2d 768) (1966).

Under OCGA § 9-11-15, any amendments to the complaint are treated as relating back to the filing of the initial complaint, with the sole exception being the attachment of the expert affidavit under OCGA § 9-11-9.1 (a). Therefore, the trial court, in considering appellee’s motion to dismiss, should have considered this amendment to the body of the complaint. “Is not the chief object of amendment the correction of mistakes?” Ellison v. Ga. R. Co., 87 Ga. 691, 718 (13 SE 809) (1891). “This court has repeatedly held that the spirit and intent of the Civil Practice Act require that pleadings are to be liberally construed in favor of the pleader. Mills v. Bing, 181 Ga. App. 475, 476 (352 SE2d 798) (1987); Tahamtan v. Dixie Ornamental Iron Co., 143 Ga. App. 561 (239 SE2d 217) (1977).” Thompson v. Long, supra at 481. “[T]he language of OCGA § 9-11-9.1 (b) ‘shows a clear legislative intent to give a plaintiff extra time to secure an affidavit when the statute of limitation is about to expire.’ ” Thompson v. Long, supra at 482, citing St. Joseph’s Hosp. v. Nease, supra at 154. Clearly, it runs completely counter to the language of OCGA § 9-11-9.1 and the liberal construction of OCGA § 9-11-15 to conclude that the General Assembly intended to allow á plaintiff to amend under OCGA § 9-11-9.1 (b) and to allow the filing of the affidavit under such statutory conditions, and then to conclude that simply because the complaint was inadequately pled initially, the legislature intended to permit dismissal upon the merits, without amendment of the pleadings, even when the statutory conditions have been met by filing the affidavit within 45 days. This would constitute a complete abandonment of issue pleading and reinstitute the principles of general demurrer, resulting in the reinstitution of all its attendant evils and hyper-technical pleading.

The legislative intent shall be determined from an act’s caption. Sovereign Camp Woodmen of the World v. Beard, 26 Ga. App. 130 (105 SE 629) (1921). The caption indicates that the provisions of OCGA § 9-11-9.1 are intended to be procedural. Such procedural provisions expressly prohibit the amendment to a complaint to add an affidavit of an expert, except under certain limited circumstances. The statute does vioi prohibit other amendments of the body of the pleadings in the complaint and, therefore, should be liberally construed in pari materia with OCGA § 9-11-15 with regard to any other amendments to the pleadings. Owens v. Cobb County, 230 Ga. 707 (198 SE2d 846) (1973); Bourquine v. City of Patterson, 151 Ga. App. 232 (259 SE2d 214) (1979); McRae v. Britton, 144 Ga. App. 340 (240 SE2d 904) (1977); MCG Dev. Corp. v. Bick Realty Co., 140 Ga. App. 41 (230 SE2d 26) (1976); Taylor v. Ga. Power Co., 129 Ga. App. 89 (198 SE2d 701) (1973).

Since the body of the appellant’s complaint was properly amended under OCGA § 9-11-15 to include the language of OCGA § 9-11-9.1 (b) and since appellant filed an expert’s affidavit within the extended filing time within OCGA § 9-11-9.1 (b), this Court finds that the trial court erred in dismissing appellant’s amended complaint.

2. Appellant also raises, for the first time on appeal, an argument that this Court’s interpretation of OCGA § 9-11-9.1 (b) has the effect of an impermissible, retroactive application of law. Such argument was not made at the trial level and thus has not been preserved for our review. Grant v. Jones, 192 Ga. App. 209 (384 SE2d 434) (1989).

Judgment reversed.

McMurray, P. J, Birdsong, P. J., Pope, P. J., Johnson and Blackburn, JJ., concur. Beasley and Ruffin, JJ, concur specially. Andrews, C. J, concurs in the judgment only.

Beasley, Judge,

concurring specially.

I concur in the holding that the complaint filed pursuant to OCGA § 9-11-9.1 (b) may be amended under OCGA § 9-11-15 to include the statutorily required allegation which excuses contemporaneous filing of the affidavit, at least where the amendment is filed prior to the filing of a motion to dismiss the complaint on the ground of the defect.

I do so with several caveats. First, it is questionable whether this issue has been preserved for appellate review. Appellant enumerates as error the trial court’s grant of appellees’ motion to dismiss. She argues that interpreting subsection (b) so as to require “magic language” to comply with the substance of the statute violates her constitutional rights. Nowhere in her brief does she raise any issue concerning the amendment to her complaint.

Second, the statement in Keefe v. Northside Hosp., 219 Ga. App. 875 (467 SE2d 9) (1996), which the majority considers obiter dictum, was very pertinent procedurally to that case. No effort had been made to amend the complaint in the trial court to add the requisite allegation, which conclusively establishes a necessary fact, before the trial court granted defendant’s motion to dismiss the complaint for this reason. Thus it was too late to consider amendment; the case would not be remanded to allow this to be done. The clause in the last paragraph of Keefe with respect to cure by amendment was not meant to preclude timely amendment to the complaint so as to include the required allegation explaining the absence of a contemporaneously filed affidavit. The Court referenced Sisk v. Patel, 217 Ga. App. 156 (456 SE2d 718) (1995), as a case to be compared. There this Court allowed the original affidavit to be added by amendment which was attempted by motion made after dismissal, but a facsimile had been filed with the complaint.

Decided February 14, 1997

O. Wayne Ellerbee, for appellant.

Young, Thagard, Hoffman, Scott & Smith, James B. Thagard, for appellees.

The decision in this case comports with the principle repeated in Gadd v. Wilson & Co., 262 Ga. 234, 235 (416 SE2d 285) (1992), that “since § 9-11-9.1 establishes an exception to the general liberality of pleading permitted under the Civil Practice Act, ... it should be construed in a manner consistent with the liberality of the Civil Practice Act where such construction does not detract from the purpose of § 9-11-9.1 to reduce the number of frivolous malpractice suits being filed.” (Citations and punctuation omitted.)

I am authorized to state that Judge Ruffin joins in this special concurrence.


author: Judge Harold R. Banke.

text:
    A96A2297.
    BREWER v. THE STATE.
    (481 SE2d 608)
   Judge Harold R. Banke.

Ralph Brewer was convicted of trafficking in cocaine and possession with intent to distribute. After merging the two counts, the trial court sentenced Brewer to the mandatory minimum of twenty-five years. Due to subsequent changes in counsel, the trial court permitted an out-of-time appeal. Following the denial of his motion for new trial, Brewer asserts nine errors.

Viewed in a light most favorable to the verdict, the State’s evidence was as follows. Sergeant Walter Britt, an undercover drug investigator, used an informant to arrange the purchase of a substantial amount of cocaine. In Britt’s presence, the informant telephoned Tonya Smith, a friend of Brewer, who agreed to act as an intermediary in obtaining the cocaine. Smith testified that when she told Brewer that someone wanted a “key of dope” (kilo), Brewer said he would see what he could do. A few days later, Brewer set the price at $26,000 for the kilo. Smith and Brewer agreed that the transaction would occur at her apartment on February 2, 1994 at 10:00 a.m. Brewer arrived shortly before the appointed time and the purchasers, the informant and undercover officer Angela Ficklin, came about 20-30 minutes later. Smith testified that no drugs were in her apartment before Brewer arrived. After the buyers came, Brewer retrieved the cocaine in a grocery bag from a bedroom. Brewer opened the grocery bag and displayed a block of cocaine wrapped in black tape. Complying with Ficklin’s request to see the drugs, Brewer used a knife to unwrap the tape. As Ficklin watched Brewer cut the tape she saw “white stuff” flying up out of the block. Claiming that she had to retrieve the purchase money from her car, Ficklin then went outside and signaled her backup. Britt and other police immediately entered. Britt found the cocaine on the floor about two feet from Brewer. State forensic testing determined that the cocaine had a purity of 85 percent and that the block of cocaine without the packaging weighed 1,044 grams.

At trial, Brewer contended that he was at Smith’s apartment solely to visit Smith’s infant baby whom he had fathered. He denied any knowledge of or participation in the drug transaction at Smith’s apartment contending that Smith alone was conducting the drug deal. Held:

1. Brewer asserts that the trial court erred by failing to charge on constructive possession, his sole defense. Brewer further claims that he was entitled to a charge that the law presumes that the drugs belong to the owner of a house ánd an instruction that a finding of constructive possession must be based on evidence other than spatial proximity.

Notwithstanding Brewer’s claim to the contrary, the court did instruct on constructive possession, quoting verbatim the pattern charge. Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed.), p. 136. Nor is there merit to Brewer’s assertion that he was entitled to a customized constructive possession charge. A trial court need not give a particular instruction where the entire charge, as here, fairly presents the issues, including the defendant’s theory. Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991).

The State’s evidence showing Brewer’s actual participation in a direct sale to the undercover officer rebutted the presumption of possession against the owner of the premises. Walton v. State, 217 Ga. App. 773, 774 (1) (459 SE2d 184) (1995). No such charge was therefore demanded. Id.; compare Paden v. State, 216 Ga. App. 188, 189 (1) (453 SE2d 788) (1995).

2. Brewer contends that his trial counsel and motion for new trial counsel rendered ineffective assistance based on the trial court’s failure to give the two jury instructions discussed in Division 1. Inasmuch as the trial court’s charge was not error, it follows that Brewer cannot show both the requisite error and prejudice to his defense needed for reversal. Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995). See Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

3. Brewer contends that the trial court erred when it instructed the jurors to deliberate the trafficking count before considering the possession with intent to distribute count. Brewer complains that the sequential instruction violated his right to have the jurors consider the case as a whole. Compare Lajara v. State, 263 Ga. 438, 439 (2) (435 SE2d 600) (1993) (sequential charges disapproved only in felony murder, voluntary manslaughter context).

Cantrell v. State, 266 Ga. 700 (469 SE2d 660) (1996) does not require a different result. Here, the trial court did not compel the jury to deliberate on the greater offense after it reached a verdict on the lesser included offense. Nor did the trial court insist on unanimous agreement by the jury before it could proceed to the lesser included offense. Id. at 703; Miller v. State of Ga., 58 Ga. 200, 202-203 (2) (1877). See Alexander v. State, 247 Ga. 780, 784 (3) (279 SE2d 691) (1981) (no error where trial court did not charge jury that it had to find defendant not guilty of murder by unanimous vote before it could discuss the lesser offense). We find no error with the instruction as given.

4. Brewer’s decision to reject the State’s plea offer did not constitute ineffective assistance of counsel. At the motion hearing, Brewer’s trial counsel, Glenn Zell, testified that he discussed the State’s plea offer with Brewer on numerous occasions. They also discussed the possible outcome of the trial. Zell explained that when the State offered 25 years he recommended that the case be tried because 25 years was the same as the mandatory minimum sentence. Subsequently, at the beginning of the trial the State proposed 15 years. According to Zell, it was Brewer who made the ultimate decision to proceed to trial, stating, “let’s try it, always want to try it. . . .” After reviewing the record, we are not able to conclude that the trial court’s ruling was clearly erroneous. Johnson v. State, 266 Ga. 380, 383 (2) (467 SE2d 542) (1996).

5. The trial court did not comment on the evidence in its instruction. The court instructed, “The events charged in this indictment is [sic] a violation of Georgia Controlled Substances. . . .” Although this charge deviated from the Pattern Instructions, a mere slip of the tongue is not synonymous with commenting on the evidence. See Whitt v. State, 257 Ga. 8, 9 (3) (354 SE2d 116) (1987); compare OCGA § 17-8-57. Inasmuch as the charge as a whole properly instructed the jury and the court specifically instructed the jury that it did not intend to comment on the evidence, there was no error. Gober v. State, 247 Ga. 652, 655 (3) (278 SE2d 386) (1981).

Decided February 14, 1997.

Wolfe & Steel, Brian Steel, for appellant.

6. Brewer’s claim that the trial court allowed impermissible character evidence was not preserved for appellate review. Issues and objections not raised at trial cannot be raised for the first time on appeal because they are deemed waived. Jacobson v. State, 201 Ga. App. 749, 751 (2) (b) (412 SE2d 859) (1991).

7. The trial court’s admission of evidence relating to an attempted cocaine deal that failed to materialize was proper. The drug deal at issue on February 2, 1994, was the culmination of two telephone conversations, one on January 25, and another on February 2. The first attempt to effectuate a drug deal collapsed. The January 25 conversations were part of the planning phase to make the necessary arrangements for the instant drug deal. Circumstances forming a part of the main transaction are admissible as part of a continuous transaction or as res gestae. OCGA § 24-3-3; Bostic v. State, 183 Ga. App. 430, 431 (1) (359 SE2d 201) (1987).

8. Brewer’s contention that a State witness was improperly admitted as an expert is without merit. Britt testified without objection that the cocaine had a value of $100,000 and that he could “cut” it to make it into four times as much cocaine or “cook” it into crack. Even assuming arguendo that the court erred in admitting Britt’s testimony, Brewer cannot prove the requisite harm, as there is overwhelming evidence of his guilt. Palmer v. State, 186 Ga. App. 892, 897 (369 SE2d 38) (1988).

9. Brewer claims that the trial court erred and his counsel was ineffective because although the jury was instructed that it could find him guilty of conspiracy to traffic cocaine, that crime was not included on the verdict form. OCGA § 16-13-33. However, Brewer did not request the charge on conspiracy or its inclusion on the verdict form. Inasmuch as Brewer’s sole defense was that Smith acted alone without his knowledge, the decision to have the jury consider only the crimes charged in the indictment was a matter of trial strategy. Trial strategy and tactics do not equate with ineffective assistance of counsel. Nolan v. State, 204 Ga. App. 170, 172 (3) (419 SE2d 72) (1992). Accordingly, we find no error. See Strickland v. Washington, 466 U. S. at 687.

Judgment affirmed.

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

Lewis R. Slaton, District Attorney, Leonora Grant, William F. Riley, Jr., John C. Culp, Assistant District Attorneys, for appellee.

       Brewer’s trial counsel was Glenn Zell. Brewer’s initial appellate counsel was Eddie Castleberry, followed by Ellis Peetlink, who was succeeded by Brian Steel, current counsel. This Court dismissed the first appeal filed by Castleberry because it lacked a brief and an enumeration of errors.

       Smith pleaded guilty to possession with intent to distribute and agreed to testify against Brewer.

       Appellate counsel repeatedly asserts that the ineffectiveness of trial counsel issue is being raised for the first time. The record belies this contention as Brewer earlier alleged trial counsel’s ineffectiveness based on 19 purported failures during trial. Following a hearing, the trial court denied the new trial motion on each and every ground.


text:
    A96A2318.
    In the Interest of D. L. S., a child.
    (482 SE2d 418)
   Smith, Judge.

D. L. S., a minor age 15, was charged with delinquency for acts which, if committed by an adult, would have violated the Georgia Controlled Substances Act, OCGA § 16-13-30, by possessing marijuana and cocaine, and OCGA § 16-10-24, obstructing a law enforcement officer. D. L. S. admitted possessing marijuana but denied the other two charges. After a hearing in juvenile court, he was adjudicated delinquent on those charges, and he appeals.

1. D. L. S. raises the general grounds. The evidence introduced at the hearing showed that Deputies Scott Whitwell and Mark Stewart of the Butts County Sheriff’s Department drove their patrol car to the front of a coin laundry in response to complaints of drug sales in the vicinity. A small group of people was standing outside; D. L. S. was standing about three or four feet away from the group. When the officers approached, D. L. S. removed something from his left pocket, tossed it into a drink vending machine, and “took off running.” Stewart called for D. L. S. to “halt,” and D. L. S. fled but abruptly stopped about 25 feet away. Stewart grabbed D. L. S.’s shoulder, but he freed it and pulled away. He was then reapprehended.

After retrieving the bag of marijuana that had been thrown into the drink machine, Whitwell took D. L. S. to juvenile hall. While checking D. L. S.’s person, Whitwell discovered a bag containing 12 individually wrapped pieces of crack cocaine in his right pocket. Whitwell testified that D. L. S. immediately stated that the cocaine was not his; that he had had it for about three weeks; and that it belonged to a boy named Mike.

At the hearing, D. L. S. testified that he had purchased the marijuana for his own use. He also testified, however, that the cocaine had been dropped into his pocket by a 16-year-old friend, with whom he had been walking around the parking lot when the officers arrived. He was unaware that this friend had dropped the cocaine in his pocket because he was wearing very large, baggy pants. The friend testified at the hearing, and he denied placing the cocaine in D. L. S.’s pocket.

“Under the Juvenile Code, ‘the standard of proof on charges of a criminal nature is the same as that used in criminal proceedings against adults — proof must be beyond a reasonable doubt. (Cits.)’ [Cit.]” In the Interest of T. S., 211 Ga. App. 46, 47 (2) (438 SE2d 159) (1993). Although D. L. S. denied the cocaine belonged to him, it was found on his person. The evidence was in conflict regarding its ownership. Decisions as to the credibility of witnesses are in the province of the trial court; this Court determines only the sufficiency of the evidence. Miller v. State, 208 Ga. App. 547 (1) (430 SE2d 873) (1993). The juvenile court judge, as the trier of fact, was authorized to believe that the cocaine belonged to D. L. S. The evidence was therefore sufficient to support the adjudication of delinquency for possession of cocaine under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 14, 1997.

William A. Fears, for appellant.

Tommy K. Floyd, District Attorney, for appellee.

As to the obstruction charge, flight from officers while the officers are engaged in the lawful discharge of their official duties may constitute obstruction. Okongwu v. State, 220 Ga. App. 59, 62 (3) (467 SE2d 368) (1996). Evidence of D. L. S.’s flight, in addition to that of his pulling free from Deputy Stewart, was sufficient to support the adjudication of delinquency for obstructing an officer under the same standard.

2. The GBI crime lab report was admitted into evidence pursuant to OCGA § 35-3-16 without calling the laboratory analyst to testify at the hearing. Citing the recent Supreme Court decision in Miller v. State, 266 Ga. 850 (472 SE2d 74) (1996), which held OCGA § 35-3-16 to be unconstitutional because it violated criminal defendants’ right to confront witnesses against them, D. L. S. contends that the admission of the lab report at his hearing constitutes grounds for reversal.

Had D. L. S. objected at the hearing to the admission of the lab report we could agree. At the hearing, however, D. L. S. specifically and expressly stipulated to its admission. “Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived.” (Citations and punctuation omitted.) Jacobson v. State, 201 Ga. App. 749, 751 (2) (b) (412 SE2d 859) (1991). D. L. S. therefore waived any objection to the admission of the lab report.

Judgment affirmed.

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


text:
    A96A2336.
    MANLEY v. THE STATE.
    (482 SE2d 416)
   Smith, Judge.

Charles David Manley was indicted on drug and weapons charges, which arose after authorities discovered marijuana growing on his property and seized marijuana and methamphetamine from his home and car. The State also filed an in rem civil forfeiture complaint against Manley’s real and personal property connected with the drug offenses. We affirmed the trial court’s forfeiture of those properties in Manley v. State of Ga., 217 Ga. App. 556 (458 SE2d 179) (1995) . After this Court ruled in his forfeiture case, Manley filed motions seeking to quash his indictments and bar further prosecution based upon claims of double jeopardy. The trial court denied those motions and, following a bench trial on stipulated evidence, convicted Manley. Manley appealed to the Supreme Court, raising claims under the federal and state constitutions. The Supreme Court transferred the case to this Court, noting in its order that “those issues involve the application of well-settled principles of constitutional law. . . .”

1. In two enumerations of error, Manley contends the trial court erred in denying his plea in bar based upon double jeopardy. His contention that the prior civil forfeiture action constituted a criminal sanction under federal constitutional law has been rejected by the Georgia Supreme Court in Murphy v. State, 267 Ga. 120 (475 SE2d 907) (1996) and by the United States Supreme Court in United States v. Ursery, 518 U. S._(116 SC 2135, 135 LE2d 549) (1996).

Manley’s argument based on the protections against double jeopardy provided by Art. I, Sec. I, Par. XVIII of the Georgia Constitution was not addressed in Murphy, and Justice Sears in her concurrence noted that that issue was not before the Court. Murphy, 267 Ga. at 121. The Supreme Court’s transfer of the case to this Court does not demand a conclusion that the state constitutional claim has no merit. See Atlanta Independent School System v. Lane, 266 Ga. 657, 658 (1) (469 SE2d 22) (1996). Despite the language in the Supreme Court’s order, the issue of whether Manley states a valid double jeopardy defense under state constitutional law does not seem to be “well-settled.” In Battista v. State, 223 Ga. App. 369, 371 (1) (477 SE2d 665) (1996), however, this Court rejected such a state constitutional law claim based on the rulings in Murphy, supra, and Ursery, supra. Given the Supreme Court’s explicit holding in Murphy that civil forfeiture proceedings are primarily remedial in nature, id. at 121, we hold that Manley’s protections against double jeopardy were not violated by these subsequent criminal proceedings.

2. In his second enumeration of error, Manley claims the civil forfeiture action constituted an “excessive fine” or “cruel and unusual punishment” in violation of the federal constitution’s Eighth Amendment and Art. I, Sec. I, Par. XVII of the Georgia Constitution. We need not decide whether Manley waived this claim by failing to timely assert it below. We have previously held that an in rem civil forfeiture simply is not a criminal action. Murphy v. State, 219 Ga. App. 474, 475 (465 SE2d 497) (1995), aff’d, 267 Ga. 120. This enumeration is, therefore, also without merit.

Decided February 14, 1997.

Strauss & Walker, John T. Strauss, for appellant.

Alan A. Cook, District Attorney, Thomas W. Hayes, Gary D. Bergman, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, C. J, and Senior Appellate Judge Harold R. Banke concur.

       The specific charges were manufacture of marijuana, possession of marijuana with intent to distribute, possession of methamphetamine, and possession of a firearm during the commission of a felony. See OCGA §§ 16-13-30; 16-11-106.


author: Beasley, Judge.

text:
    A96A2400.
    CHANEY v. THE STATE.
    (482 SE2d 398)
   Beasley, Judge.

Chaney was convicted of trafficking in cocaine (OCGA § 16-13-31) and possession of more than one ounce of marijuana (OCGA § 16-13-30). His motion for new trial was denied.

The evidence introduced at trial showed that on the morning of July 13, 1994, Chaney flew from Los Angeles to Atlanta on a one-way ticket. He arrived at the Atlanta airport at about 7:30 a.m. and was stopped by DEA agents. After consenting to a search of his checked bag, Chaney and the two agents went to the baggage claim area on different trains. When his train arrived, Chaney disembarked and disappeared into the crowd. The agents could not find him but retrieved his bag. After a drug detection dog reacted positively to the bag, it was searched, and cocaine and marijuana were found inside.

1. Chaney’s first enumeration is controlled by Edmonson v. State, 212 Ga. App. 449, 452 (4) (442 SE2d 300) (1994): “[he] claims the trial court erred by [dismissing] his motion to suppress admission of the [evidence] on the basis that it was obtained by an illegal search. When the [evidence] was offered by the State for admission at trial, defense counsel stated that there was no objection to its admission; therefore the right to contest admission of the evidence on appeal was waived. [Cits.]”

2. The second enumeration is that the court erred in denying his motion for new trial on the ground that the State failed to disclose favorable evidence.

Decided February 14, 1997.

William H. Turner, Jr., for appellant.

At trial, Chaney’s friend McLaughlin appeared as his key alibi witness. He testified that between 8:30 and 9:00 p.m. on July 13, 1994, Chaney came to his house in Los Angeles and the two of them went to a club. When asked on cross-examination whether there was anyone who could corroborate his testimony, he responded that there was not. He testified that although he lives with his mother, she was not at home when Chaney arrived to go to the club.

Chaney sought a new trial based on sworn affidavits of McLaughlin and his mother, Turesi Faniel. The substance of these affidavits was that during the course of the trial, the prosecuting attorney contacted Faniel in Los Angeles and was told by her that she saw her son and Chaney in her home between 8:00 and 8:30 p.m. on the evening of July 13 before they left to go to the club. The issue is whether the State’s failure to inform Chaney of his telephone conversation violated Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

“Brady, 373 U. S. at 83, holds that suppression of exculpatory material evidence violates due process.” Carroll v. State, 222 Ga. App. 560, 561 (474 SE2d 737) (1996). “The proper test for determining materiality when the prosecutor has failed ‘to disclose favorable evidence pursuant to no request, a general request, or a specific request for evidence by the accused’ is that ‘ “(t)he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” ’ [Cit.]” Massengale v. State, 189 Ga. App. 877, 881-882 (4) (377 SE2d 882) (1989).

Although McLaughlin and Faniel both swore that Chaney was at their home in Los Angeles on the evening of July 13, McLaughlin’s affidavit contradicted Faniel’s and his own trial testimony that she was not at home when Chaney was there. Neither McLaughlin nor Faniel appeared at the hearing on Chaney’s motion for new trial, and this discrepancy is unexplained. Moreover, Chaney’s presence in Los Angeles at approximately 8:30 p.m. was not shown to exclude the possibility that he was present in Atlanta at approximately 7:30 a.m. the same day. There being no reasonable probability that Faniel’s testimony would have resulted in Chaney’s acquittal, he had no right to a new trial.

Judgment affirmed.

Birdsong, P. J, and Blackburn, J., concur.

Robert E. Keller, District Attorney, David B. Hornsby, Assistant District Attorney, for appellee.


text:
    A96A2423.
    WILLIAMS v. THE STATE.
    (482 SE2d 415)
   Smith, Judge.

A jury convicted Billy Wilbure Williams of burglary, OCGA § 16-7-1. On appeal, he challenges the sufficiency of the evidence and two of the trial court’s evidentiary rulings. We affirm.

1. Williams claims the State presented insufficient evidence to support his conviction.

Around 7:30 p.m. on May 17, 1994, an eyewitness saw Williams exiting the victim’s second-story apartment through a kitchen window. She recognized Williams because she knew him from the apartment complex. Williams looked at her, jumped down from the window, and ran away. As the victim was returning to his apartment around 7:30, he saw Williams and a woman named “Tammy” driving away from the complex. The victim soon discovered that his home had been ransacked and that a cigar box containing $10,000 in cash had been stolen. He produced bank documents showing that he had withdrawn this amount from his checking account and explained that he was holding the money for a family member. The victim testified that Williams had no permission to be in his apartment. Williams testified on his own behalf and denied he was the person the witness saw exiting the apartment window. This evidence authorized the jury to determine, beyond a reasonable doubt, that Williams entered the victim’s apartment without authority and with felonious intent under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Gude v. State, 213 Ga. App. 573, 574 (1) (445 SE2d 355) (1994); Carver v. State, 191 Ga. App. 430 (1) (382 SE2d 169) (1989).

2. Williams claims the trial court erred when it allowed an investigating officer to testify that the eyewitness identified Williams in a photographic lineup. This issue is controlled adversely to Williams by Haralson v. State, 234 Ga. 406, 408 (4) (216 SE2d 304) (1975), which we have no authority to overrule despite Williams’s suggestion that we do so. See Neal v. State, 211 Ga. App. 829, 830 (1) (440 SE2d 717) (1994); see also Igle v. State, 223 Ga. App. 498, 499 (2) (478 SE2d 622) (1996). Even if Haralson were not controlling here, the admission of this testimony was not error because the eyewitness testified about this issue and was cross-examined by Williams’s lawyer. See Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985) (purpose of hearsay rule satisfied where declarant is in court and available for cross-examination); Dowdy v. State, 215 Ga. App. 576, 577 (2) (451 SE2d 528) (1994). Compare Neal, supra (suggesting Haralson rule be limited to cases in which the declarant is available for cross-examination).

Decided February 14, 1997.

John R. Greco, for appellant.

Thomas J. Charron, District Attorney, Donald T. Phillips, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

3. Williams enumerates as error the trial court’s refusal to allow testimony regarding a conversation which allegedly took place between the victim and Williams’s sisters, during which the victim blamed the burglary on “Tammy.” According to Williams, this evidence constituted a prior inconsistent statement of the victim and was admissible to impeach him.

Even if the victim’s alleged statement to the sisters could be considered a prior inconsistent statement, the trial court did not err by excluding it. The evidence presented at trial established that the victim was not an eyewitness to the crime. If the victim did later accuse “Tammy” of the burglary, the record does not show how he acquired this information. Because the victim would have been prohibited from making accusations not based on personal knowledge, the trial court did not err by preventing Williams’s sisters from repeating such accusations. Johnson v. State, 260 Ga. 17, 19 (4) (389 SE2d 238) (1990).

Judgment affirmed.

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

       Contrary to Williams’s suggestion in his brief, the court prohibited testimony regarding the eyewitness’s statements to the officer.

       We note that if the victim did accuse “Tammy” of involvement in this burglary, that statement is not inconsistent with a belief in Williams’s guilt because the victim saw Williams and “Tammy” leaving the apartment complex together shortly after the burglary. Therefore, he could have considered the two to be working together. See Jones v. State, 265 Ga. 138, 141-142 (5) (454 SE2d 482) (1995). .


author: Pope, Presiding Judge.

text:
    A96A2430.
    RUTLEDGE v. THE STATE.
    (482 SE2d 403)
   Pope, Presiding Judge.

Defendant was convicted by a jury of possession of cocaine with intent to distribute and obstruction of an officer. He appeals his convictions, raising three enumerations of error.

At approximately 3:00 a.m. on December 27, 1993, Officer LeBlanc of the Warner Robins Police Department was on patrol when he passed defendant’s vehicle exiting from an apartment complex onto Cannon Road. Defendant was driving behind the officer when defendant turned off the main road. At that time, Officer LeBlanc turned his head and noticed that defendant did not have a tag displayed on his vehicle. The officer made a U-turn, pulled in behind defendant, and followed him for approximately a half-mile before he initiated a traffic stop. As Officer LeBlanc and defendant pulled into the parking lot, the officer noticed defendant reaching over towards the front passenger side floorboard area prior to coming to a stop. Defendant exited his vehicle, approached the patrol car, and asked why he was stopped. Officer LeBlanc told defendant his tag was not displayed and that he needed to see defendant’s insurance card and driver’s license. Defendant told the officer he had a tag and that it must have fallen from his rear window. Defendant opened the rear vehicle door, picked the tag up off the floorboard and placed it in the rear window. When defendant started to get back into his car, the officer told defendant he still needed to see his driver’s license and insurance card. Defendant produced a driver’s license and a rental agreement for the vehicle. The rental agreement appeared to be in order, but the officer was unable to run defendant’s driver’s license because the state-wide computers were down. Because defendant was acting nervous, Officer LeBlanc asked defendant for consent to do a pat-down search. Defendant consented and was told to lean against the vehicle for a pat-down search. Officer LeBlanc felt an object in defendant’s right front pants pocket, and the defendant removed a pocket knife that he gave to the officer. The officer continued his pat-down search and discovered another object in defendant’s left pants pocket. When he asked defendant for that object, defendant started rapidly moving his hand up and down in his pants pocket, and then back and forth between his pants pocket to his coat pocket. The officer became more nervous about his safety and advised defendant that he was going to remove the object from his pocket. When the officer grabbed defendant’s arm, defendant snatched his arm away and put his hand back in his pocket.

Officer Harris then arrived on the scene, and both officers tried to subdue defendant. During that period, Officer LeBlanc noticed defendant take his hand out of his pocket and throw several small packets under a car in the parking lot. Officer Harris continued his pat-down search of defendant and placed him in the patrol vehicle. Later it was discovered that the items thrown under the car were nine individually packaged pieces of crack cocaine. Officer LeBlanc then searched the vehicle and located two pieces of crack cocaine in the center console. He also found a cigarette box containing various drug paraphernalia and a bottle that looked like it was altered for drug use.

1. Defendant first enumerates as error the trial court’s failure to grant his motion for directed verdict on the grounds that the evidence produced by the State was insufficient to support a conviction for possession with intent to distribute cocaine. Specifically, defendant argues that because the only evidence produced against him was the nine individual packages of “rocks” found on his person, the two “rocks” loose in the car, and various paraphernalia used for smoking crack cocaine, the evidence was sufficient only to show possession for personal use, rather than possession for distribution.

“To support a conviction for possession of cocaine with intent to distribute, the State is required to prove more than mere possession.” (Citations and punctuation omitted.) Sims v. State, 213 Ga. App. 151, 153 (3) (444 SE2d 121) (1994). “‘On appeal the evidence must be viewed in a light most favorable to the prosecution. [Cit.]’ [Cit.] While mere possession of a controlled substance without more will not serve as the basis for a conviction of possession of a controlled substance with intent to distribute, the evidence of the controlled substance in this case being packaged in a manner commonly associated with the sale or distribution of such contraband would authorize any rational trier of fact to infer that defendant possessed crack cocaine, a controlled substance, with intent to distribute. [Cit.] The evidence was sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).” Bowers v. State, 195 Ga. App. 522 (1) (394 SE2d 141) (1990). See also Sims v. State, 213 Ga. App. at 153.

2. Defendant next enumerates as error the trial court’s failure to grant his motion to suppress the evidence seized during the pat-down search of defendant and his vehicle.

“An officer may conduct a brief investigatory stop of a vehicle if such stop is justified by ‘specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.’ [Cit.]” State v. Whitfield, 219 Ga. App. 5, 6 (463 SE2d 728) (1995). Although the record in this case does not contain a transcript from the hearing on the motion to suppress, the transcript at trial discloses that defendant’s vehicle was stopped by the officer because no tag was displayed on the rear license plate area. This was sufficient reason for an investigatory stop. See Edwards v. State, 219 Ga. App. 239 (3) (464 SE2d 851) (1995).

We have specifically held that roadside questioning during the investigation of a routine traffic incident generally does not constitute a custodial situation. The fact that an officer retains a detainee’s license for a short period during the course of an investigation does not necessarily mean that the detainee is in custody. Crum v. State, 194 Ga. App. 271, 272 (390 SE2d 295) (1990). Therefore, we find in this instance that there was a valid consent for the search of defendant’s person and the search of defendant’s vehicle subsequent to his arrest also was lawful. Accordingly, the motion to suppress was properly denied. See generally Allen v. State, 191 Ga. App. 623, 624 (1) (382 SE2d 690) (1989).

“‘Further, we must assume, absent the availability to us of whatever material the court considered while hearing evidence on the motion, that the court properly exercised its judgment and discretion in denying [defendant’s] motion to suppress. (Cit.)’ [Cit.]” King v. State, 203 Ga. App. 287, 289 (1) (416 SE2d 842) (1992). See also Doster v. State, 218 Ga. App. 174, 175 (460 SE2d 818) (1995).

3. In his last enumeration of error, defendant alleges the trial court erred in allowing defendant to proceed without legal counsel because any waiver of legal counsel by the defendant was not a voluntary, knowing and intelligent waiver.

“ ‘When an accused is placed on trial for any offense, whether felony or misdemeanor, for which he faces imprisonment, the constitutional guarantee of right to counsel attaches. As with all constitutional rights, the accused may forfeit this right by a knowing and intelligent waiver.’ ” (Citation omitted.) Keith v. State, 218 Ga. App. 729 (1) (463 SE2d 51) (1995). “Waiver of counsel requires more than a showing of a knowledge of right to counsel; there must also be evidence of relinquishment. Merely finding that a request for counsel was not made is insufficient to establish waiver. In order to establish a valid waiver, a trial judge must investigate as long and as thoroughly as the circumstances of the case before him demand. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter.” (Citations and punctuation omitted.) Kirkland v. State, 202 Ga. App. 356, 357-358 (1) (414 SE2d 502) (1991). “When determining whether there has been an informed and intelligent waiver of such a right, each case must be determined upon its own peculiar facts and circumstance.” Callahan v. State, 175 Ga. App. 303, 304 (333 SE2d 179) (1985); Harris v. State, 196 Ga. App. 796 (1) (397 SE2d 68) (1990). “ ‘While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record.’ [Cit.]” Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49) (1981).

In this case, the record indicates that defendant originally was represented by a lawyer from the Public Defender’s Office, and following that lawyer’s withdrawal from the case, the court appointed other counsel to represent defendant. Apparently, at some time after the defendant’s motion to suppress hearing, defendant' decided to proceed pro se, although the record does not tell us why or when he made this election. We also know that a hearing was held on defendant’s request to represent himself, although a copy of the transcript from that hearing has not been included in the record on appeal.

At the start of the trial of this matter, the trial court stated for the record that defendant had decided to proceed pro se. The trial court specifically asked defendant if it was still his intention to represent himself, and defendant affirmatively stated that he wanted to proceed pro se, provided court-appointed counsel would be available to provide him with technical assistance. The trial court also informed defendant of his right to remain silent and advised him about the potential dangers of his representing himself. Later during trial, the trial court again asked defendant if he still wished to proceed without counsel, and defendant again informed the court that he wished to proceed pro se.

Thus, the trial transcript clearly indicates that defendant was not denied the right to counsel by the trial court, but instead knowingly, understanding^ and voluntarily elected to represent himself. “[Defendant] made a decision to represent himself in this case. This is not a case where a defendant stood trial alone with no assistance or protection of his rights. Under the circumstances of this particular case, we find no error requiring a reversal of the conviction. [Defendant’s] choice was made after he was made aware of his right to counsel and the dangers of proceeding without counsel.” (Citations and punctuation omitted.) Williams v. State, 192 Ga. App. 317, 319 (2) (384 SE2d 877) (1989). See also May v. State, 217 Ga. App. 427 (457 SE2d 694) (1995). The trial court’s failure to use the exact language of Clark v. Zant in making its findings was not reversible error. See Singleton v. State, 176 Ga. App. 733 (337 SE2d 350) (1985).

Furthermore, assuming arguendo that the trial court erred in allowing defendant to represent himself, any such error was harmless beyond a reasonable doubt. McCook v. State, 178 Ga. App. 276, 277 (342 SE2d 757) (1986). The trial transcript indicates that defendant had a clear understanding of the nature of the charges against him, of the difference between the offenses of possession of cocaine and possession with intent to distribute, and of the possible defenses available to him. Defendant tenaciously conducted his own defense, and court-appointed counsel provided assistance to him during trial, as did the trial court itself. “The evidence presented by the State was strong and relatively straightforward. The trial court appointed an attorney to sit with [defendant] during trial in order to advise him as to procedural matters. Also, the court gave [defendant] considerable latitude in his cross-examination and in the presentation of his defense. The record discloses that [defendant] was well prepared to defend himself and did so in a credible fashion. . . . We therefore conclude that it is unlikely that [defendant’s] convictions were attrib-' utable to his decision to represent himself. [Cits.]” Id. at 277-278. There are no grounds for reversal.

Decided February 14, 1997.

Grantham & Peterson, William M. Peterson, for appellant.

Edward D. Lukemire, District Attorney, A. James Rockefeller, Pamela D. Brophy, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, C. J., and Smith, J., concur.

       Although the notice of appeal requests that all motion hearing transcripts be forwarded to this Court, the trial court clerk’s certificate on the record states that defendant’s counsel authorized the record to be sent without the transcript for the motion to suppress hearing.