text:
    A96A0940.
    CARTER v. THE STATE.
    (474 SE2d 240)
   Beasley, Chief Judge.

Tyrone Carter appeals his conviction and sentence for trafficking in cocaine. OCGA § 16-13-31.

United Parcel Service employees in California notified a local police sergeant that they had two suspicious packages at their warehouse. The sergeant also observed a third suspicious package at the site in a next-day air bin, which is the type of mail the officer generally investigates. His attention was drawn to this package because the return address was incomplete, the zip code was incorrect, the package was from a “Mr. Lee” to a “Lee,” and its valuation was low relative to the shipping cost. The package was being sent to an Atlanta apartment leased by a Bryant Jordan.

A narcotics detection dog, brought to the warehouse within minutes, sniffed the package and reacted positively to it. The package was then sent along its normal route. The officer in California notified a DeKalb County narcotics detective and faxed written documentation of the California investigation to him.

The narcotics detective arranged for another narcotics dog to sniff the package after its arrival in Georgia. That dog also reacted positively, so the detective obtained a search warrant and found 1,977 grams of cocaine with a purity of 72 percent. After resealing the package, officers made a controlled delivery to the Buford Highway apartment.

Carter answered the UPS delivery person’s knock at the door. When asked whether he was “Lee,” Carter said he was not but that he would accept delivery of the package for him. Officers arrested Carter a few minutes later, in his car with the package in the trunk.

The evidence showed that Bryant Jordan and Tiante Kelly live at the apartment. Defendant Carter’s testimony, supported by that of Kelly and another defense witness, was that Kelly agreed to let Carter sleep at the apartment the night preceding his arrest; a friend of Kelly’s named William Lee was expecting a package the next morning; and Carter, the only one at the apartment at the time, agreed to accept delivery as a favor for Kelly and did not have any knowledge of its contents.

1. Carter enumerates first the court’s denial of his motion to suppress. He characterizes the California police sergeant’s observation of the package at the UPS warehouse as a random search and the officer’s detention of the package for the purpose of having a drug dog sniff it as a seizure. This, he urges, violated the Fourth Amendment because the search and seizure were done without probable cause and a warrant. Carter has not raised a state constitutional issue. See Thomas v. State, 203 Ga. App. 529, 530 (1) (417 SE2d 353) (1992).

In reliance upon Johnson v. State, 208 Ga. App. 747, 749 (3) (431 SE2d 737) (1993), the State argues in error that Carter lacks standing to challenge any search or seizure of the package. In Johnson, one judge of the three concurred in the judgment only. For that reason, it is not binding authority and is physical precedent only. Court of Appeals Rule 33 (a). Moreover, it is factually distinguishable, in that Johnson disavowed any possessory or ownership interest in the package in which the drugs were found. Carter disclaimed any ownership interest but did claim a lawful possessory interest.

Assuming without deciding that Carter has standing, the police did not conduct an illegal search or seizure.

“[A package], unlike a person, has no fourth amendment rights. The fourth amendment, accordingly, is implicated only when a police seizure of an item impairs a person’s possessory interest, or a search impairs a person’s reasonable privacy interest in the item. . . . The fourth amendment applies to places and things only when people have reasonable privacy or possessory interests in them. [Cits.]” (Footnote omitted.) United States v. Puglisi, 723 F2d 779, 785-786 (7) (11th Cir. 1984).

Any expectation of privacy in the exterior of the package was relinquished by the sender’s transfer of possession to UPS. Cf. United States v. Goldstein, 635 F2d 356, 361 (4) (5th Cir. 1981); compare State v. Escobar, 193 Ga. App. 535 (388 SE2d 534) (1989) (citing Arizona v. Hicks, 480 U. S. 321 (107 SC 1149, 94 LE2d 347) (1987)). The California officer’s observation of the package’s exterior at the UPS warehouse at the invitation of UPS employees thus did not impair anyone’s reasonable privacy interest in the package. Nor did the officer’s removal of the package from one area of the warehouse to another for an immediate sniff by a drug dog impair anyone’s possessory interest, because it was not in a place over which anyone other than UPS had control. The use of the dogs’ enhanced olfactory sense to sniff for the presence of drugs in the airspace surrounding the package did not constitute a search within the meaning of the Fourth Amendment. Bothwell v. State, 250 Ga. 573, 579 (6) (300 SE2d 126) (1983) (citing United States v. Goldstein, supra); State v. Foster, 209 Ga. App. 143,146 (433 SE2d 109) (1993). It was a non-invasive “plain smell,” not a search within the meaning of the Fourth Amendment. The dogs’ positive reaction to the presence of drugs in the package, along with the other facts present, supplied the Georgia officer with the requisite probable cause to seek a warrant to search the package. Bothwell, supra at 580 (7).

2. Carter contends secondly that the court erred in charging the jury that the evidence apparently included a controlled substance.

Carter objected to this as an expression of an opinion by the court as to what the State had proved. The court responded with a curative instruction in which the jury was told to disregard the earlier charge and determine for itself whether the substance in the package was cocaine. The court asked whether there were any further exceptions, and Carter said there were none.

On appeal, Carter argues that the court’s initial instruction prejudiced him in a manner which curative instructions were insufficient to remove. He waived this issue by failing to object to the court’s curative instruction. See Lewis v. State, 215 Ga. App. 161, 163 (4) (450 SE2d 448) (1994). Furthermore, his argument lacks merit. Carter did not contest the fact that the substance in the package was cocaine. An expression of opinion as to an uncontested and undisputed fact is not a cause for reversal. Dixon v. State, 196 Ga. App. 15, 18 (7) (395 SE2d 577) (1990). Consequently, the initial instruction did not cause Carter incurable prejudice.

Decided July 18, 1996.

Daniel B. Kane, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Lee A. Mangone, Desiree S. Peagler, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J., concurs. Blackburn, J., concurs in the judgment only.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A96A1281.
    RISER v. THE STATE.
    (474 SE2d 632)
   Blackburn, Judge.

Kenneth Riser appeals his conviction for possession of drugs by an inmate.

As his sole enumeration of error, Riser contends that the trial court erred in holding that he was afforded effective assistance of counsel. In support of his argument, Riser cites several instances in the record where his trial counsel failed to object to the testimony of various witnesses concerning their knowledge of Riser’s involvement with drugs and gambling while in prison, evidence which Riser alleges impermissibly placed his character in issue. For example, one prison official testified that he had received information that Riser was “involved in some drug trafficking,” that he received information that inmates Rambo and Kirk were selling marijuana for Riser, and that Riser’s “institutional file is ten volumes thick,” although he also testified that he did not recall ever writing Riser up for drug possession. Another prison official testified that Riser “likes to run the parlays” and was involved in gambling, although he also testified that during the year prior to the incident at issue, he did not recall any previous instances in which drugs were found in Riser’s cell. The prison warden testified that Riser was involved in “just about every illegal activity at the institution,” although he was not caught with drugs until this occasion. In addition, one of the informants responsible for the search, Edward Davis, testified that Riser was “selling drugs” and “did a lot of gambling.”

The trial court denied Riser’s motion for new trial finding that the trial counsel’s failure to object to the testimony at issue appeared to be part of trial counsel’s strategy, and that there was no reasonable probability that the result would have been different if Riser’s counsel had objected.

“In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The complaining defendant must make both showings.” (Punctuation omitted.) Moody v. State, 206 Ga. App. 387, 388 (425 SE2d 397) (1992). Furthermore, “[a] trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” Id. at 390. No clear error was shown in the instant case.

“A decision on whether or not to place a defendant’s character in issue is a matter of trial tactics and does not equate with ineffective assistance of counsel.” Lowery v. State, 212 Ga. App. 870, 872 (443 SE2d 304) (1994). The defense tried to establish reasonable doubt by suggesting that inmate Rambo conspired with prison officials to frame Riser. Given this defense, it was not clearly erroneous for the trial court to conclude that Riser’s trial counsel’s failure to object to the testimony at issue did not amount to a deficient performance because such testimony helped establish a possible motive for the alleged frame-up, i.e., Riser was thought to be a troublemaker and drug dealer who had managed to avoid being caught. In addition, the testimony concerning Riser’s illegal activities at prison also implicated Rambo, suggesting a plausible explanation as to why Rambo would agree to frame Riser, i.e., Rambo may have expected, or was promised, leniency for his own illegal activities.

Although Riser’s trial counsel admits that she now thinks she erred in failing to object to some of the testimony at issue, she also admits that it was a toss-up call. “A defendant’s right to effective assistance of counsel does not guarantee errorless counsel or counsel judged ineffective by hindsight but counsel . . . likely to render and rendering reasonably effective assistance.” Moody, supra at 390. Accordingly, the trial court’s finding that Riser’s trial counsel’s failure to object was part of a reasonable trial strategy was not clearly erroneous.

Judgment affirmed.

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

Decided July 18, 1996.

Cowart & McCullough, Hugh J. McCullough, for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

       We note that, shortly after the marijuana was found in a tobacco pack in Riser’s cell, Rambo signed a confession alleging that Riser was holding the tobacco pack for him and that Riser had no knowledge of its illegal contents. Rambo recanted his confession, however, although at trial he admitted helping Riser hide the drugs in the tobacco pack.


author: McMurray, Presiding Judge.

text:
    A96A1092.
    HOLLOWAY v. THE STATE.
    (474 SE2d 249)
    Decided July 22, 1996.

      Hal T. Peel, for appellant.

      Dupont K. Cheney, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant was tried before a jury for aggravated assault upon a correctional officer in that he did cut a correctional officer with a razor while the officer was engaged in the performance of his official duties. The evidence adduced at trial reveals that defendant, an inmate at Georgia State Prison in Reidsville, Georgia, slashed a correctional officer’s left abdomen with a razor while correctional officers were attempting to isolate defendant after defendant assaulted this same correctional officer with a cup of urine. The jury found defendant guilty of the crime charged. This appeal followed the denial of defendant’s motion for new trial. Held:

Defendant contends the evidence is insufficient to authorize the jury’s verdict because the State did not introduce the razor defendant used to commit the crime charged into evidence at trial. This assertion is without merit.

Although the State did not introduce the razor defendant used during the assault, Georgia State Prison Officer James C. Lee, Jr. testified that he saw defendant cut a fellow correctional officer with “a razor blade [and that he then observed defendant go to] the back of his cell and flush [the razor blade] down the commode.” This evidence is alone sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of aggravated assault upon a correctional officer as charged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Jackson v. State, 182 Ga. App. 885 (357 SE2d 321).

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A1577.
    CROWDER v. THE STATE.
    (474 SE2d 246)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with one count of making “False Statements,” by aiding and abetting a conspiracy to report a staged automobile accident, and further charged with five separate counts of “Insurance Fraud” for aiding and abetting each of his co-conspirators’ false statements made for the purpose of procuring payment by an insurance company of a fraudulent claim. The evidence at his jury trial revealed the following: On December 1, 1993, James Marvin Manning, then a Lieutenant with the Jackson Police Department, investigated a reported traffic accident at the intersection of Sherril Avenue and Stark Road in Butts County, Georgia. There, “[t]he driver of vehicle one was determined to be [co-conspirator] Carolyn Anita Head. The driver of vehicle two was Alfonsa McMichael.” “[A]ll the subjects that were involved . . ., with the exception of the driver of vehicle one complained of injuries, either neck injuries or back injuries. An ambulance was called to the scene. The following subjects were carried to the hospital: Amie Woodard, Angela Stewart, and Ladierdres [O’Neal]. . . .” These people contended that they were hurt so bad that they had to be carried from the scene in an ambulance. The driver of vehicle number two, Mr. Alfonsa McMichael, and his passenger, Sanatonio Stodghill, also complained of injuries but “refused to go by the ambulance,” stating to Lt. Manning that they would seek treatment on their own. Lieutenant Manning “didn’t see any injuries that were visual. Just complaints of injuries.” His inspection of the damage to vehicle two revealed “rust indicating another prior accident. . . .” Carolyn Anita Head was defendant’s girl friend. She confirmed that the accident she reported “was [not] a real wreck[.]” She also confirmed that defendant “told [her] how to go out and have a wreck[.]” “After [Carolyn Anita Head and her co-conspirators] found out how to do a wreck, we all found out how to get money, how to say about what hurts and to tell the doctor what hurts.” At defendant’s suggestion, Carolyn Anita Head agreed to go to a certain intersection, intending to bump into another car. Thereafter, defendant “told [her] about a lawyer [she] could go to.” Angela Stewart was a passenger in Carolyn Anita Head’s car when the accident was reported. She also confirmed “that traffic accident was [not] a real wreck[.]” Defendant told Angela Stewart “to play like [her] neck was hurt.” The chiropractor defendant recommended to his co-conspirators has his office “right next door . . .” to the lawyer defendant recommended. Alfonsa McMichael testified that it was defendant’s idea to have the fake accident to obtain money. Alfonsa McMichael confirmed that defendant promised him “some money [($75.00)] for using [his] car in this [staged] wreck[.]” Amie Woodard corroborated the testimony implicating defendant, and further testified that defendant called in the accident report from a pay telephone. She pretended to have injured her neck in the accident. Claims were made on Atlanta Casualty Company by the chiropractor on behalf of Carolyn Anita Head, Angela Stewart, Alfonsa McMichael, Amie Woodard, Sanatonio Stodghill, and Ladeirdres O’Neal.

Although defendant testified on his own behalf, denying any complicity in a scheme to defraud the insurance company, the jury found him guilty as charged as to each of the six counts. This direct appeal followed. Held:

1. Defendant first enumerates the general grounds. In our view, the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), to authorize the jury’s verdicts that defendant is guilty, beyond a reasonable doubt, as a party to the several crimes of insurance fraud (Counts 2 through 6) as prohibited by OCGA § 33-1-9 (a) (1). See Dover v. State, 192 Ga. App. 429, 432 (2) (385 SE2d 417). The evidence is further sufficient to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, as a party to the crime of making false statements (Count 1) in violation of OCGA § 16-10-20, as alleged in the indictment.

2. Defendant’s second enumeration contends the trial court erred in overruling his objection to the State’s Attorney leading the witness Angela Stewart.

Ms. Stewart had pleaded guilty to two counts of insurance fraud and was to testify truthfully at defendant’s trial when called upon to do so by the District Attorney’s office. At trial, however, she was vague and uncooperative. When the State’s Attorney “remind[ed] [her] again . . .” of an interview she gave the previous Monday, defendant interposed his objection to leading the witness. The trial court observed: “I believe [the State’s Attorney] identified the conversation was Monday.” Thereafter, defendant invoked no further ruling and interposed no further objection.

“Leading questions generally are allowed only on cross-examination. OCGA § 24-9-63. However, the trial court has the discretion to allow leading questions on direct examination, where, for example, the witness is nervous, or ignorant, or hostile.” Fugate v. State, 263 Ga. 260, 265 (10) (431 SE2d 104). “Where[, as in the case sub judice,] a witness introduced by the [S]tate showed that [s]he was an unwilling witness, and seemed contumacious and equivocal, there was no error in allowing the [State’s Attorney] to lead [the witness].” Durham, v. State, 70 Ga. 264, 265 (hn. 11).

3. Defendant’s third enumeration of error contends the trial court impermissibly expressed an opinion on the credibility of the witness Sanatonio Stodghill by warning the witness of his rights, after the State’s Attorney began to lay a foundation for charging the witness with perjury. Defendant raised no contemporaneous objection or motion for mistrial. Consequently, this ground for objection was not preserved for appellate review. Cornelius v. State, 213 Ga. App. 766, 770 (3) (445 SE2d 800).

Decided July 22, 1996.

Sharon J. S. Whitwell, for appellant.

Tommy K. Floyd, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

4. Tbe trial court did not err in sentencing defendant to separate terms for each of the violations of OCGA § 33-1-9 (a) (1) committed by his several co-conspirators. Each fraudulent claim made is a separate offense and does not merge as a matter of fact under the provisions of OCGA § 16-1-7. The fourth enumeration is without merit.

Judgment affirmed.

Johnson, J., concurs. Ruffin, J., concurs in the judgment only.


text:
    A96A1184.
    BIGHAM v. THE STATE.
    (474 SE2d 254)
   Blackburn, Judge.

Ben Bigham appeals his conviction of armed robbery, kidnapping, and two counts of possession of a firearm during the commission of a felony.

As his sole enumeration of error, Bigham contends that the trial court erred in failing to grant him a directed verdict on all counts because there was insufficient evidence for the jury to find that he was guilty. Specifically, Bigham argues that there was insufficient evidence to establish that he was the perpetrator of the crimes charged.

Viewed in the light most favorable to the verdict, the evidence consisted, inter alia, of the testimony of an employee of a Suwannee Swifty store located on U. S. Highway 84 East who testified that, on the evening of December 27, 1994, she was confronted by a man wearing an orange hunter’s mask and carrying a gun. She further testified that the man put the gun to her neck, forced her to walk behind the counter against her will, and demanded that she empty the contents of the cash register. At about the same time, an accomplice, also wearing an orange hunter’s mask, entered the store. After gathering the money, the two men fled. The employee claimed that approximately $430 was taken in the robbery.

After hearing the news that a Suwannee Swifty store had been robbed by two men wearing orange face masks, a cashier at a nearby Wal-Mart store, who knew Bigham from school, tipped the police that Bigham had purchased two orange ski masks from her the day of the robbery. The police began a search for Bigham, who was eventually brought in by his cousin and surrendered to authorities. An officer testified that, while in custody and after being advised of his constitutional rights, Bigham confessed that he was the gunman in the Suwannee Swiffcy store robbery. As part of his testimony, the officer read the recorded confession which was initialed by Bigham. The recorded and initialed confession did not dispute the victim’s testimony regarding how the robbery occurred, except Bigham claimed that he held the gun “down by my side.” In addition, the Wal-Mart store cashier testified at trial that Bigham had purchased two orange ski masks on the day of the robbery, confirming the information she had given to the police earlier.

“A conviction may be had on a confession although corroborated only by proof of the corpus delicti. The corroborating evidence or circumstances need not connect the defendant definitely with the perpetration of the offense. Corroboration in any material particular satisfies the requirements of the law.” (Citations and punctuation omitted.) Goswick v. State, 201 Ga. App. 799, 800 (412 SE2d 293) (1991). The testimony of the victim, which corresponded to Bigham’s confession, was sufficient to establish the corpus delicti, i.e., that the crimes actually occurred. See Christian v. State, 190 Ga. App. 667, 669 (379 SE2d 807) (1989). Moreover, the testimony of the Wal-Mart cashier that Bigham had purchased two orange ski masks from her on the day of the robbery further corroborated Bigham’s confession.

Bigham contends that the confession is unreliable because it was taken after the police had interviewed two other suspects who may have implicated him, and that the police may have constructed a confession statement for Bigham from these prior interviews. He argues that this was a reasonable hypothesis which was not ruled out by the evidence, and thus he was entitled to a directed verdict under OCGA § 24-4-6. OCGA § 24-4-6 provides that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6 is inapplicable, however, because a confession is not circumstantial evidence, and Bigham has failed to offer sufficient proof for us to determine that his confession was invalidly obtained as a matter of law. See Cooper v. State, 256 Ga. 234, 236 (347 SE2d 553) (1986).

Accordingly, because we find that a rational juror could have found Bigham guilty beyond a reasonable doubt of the crimes charged, this enumeration is without merit. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided July 23, 1996.

Brian D. Bellamy, Andrew W. Clark, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A96A1310.
    In re ESTATE OF LOUISE DONALD.
    (474 SE2d 251)
   Blackburn, Judge.

John Joyner, in his capacity as the guardian of Louise Donald’s property, appeals the probate court’s order which denied his claim for statutory commission upon the final distribution of Donald’s property to the co-executors of her estate.

On April 20,1993, Joyner was issued “Letters of Guardianship of the Property of [an] Incapacitated Adult” over Donald’s property. Thereafter, Donald died and, on September 19, 1995, the probate court issued letters of testamentary to the co-executors under Donald’s will. In Joyner’s final return as guardian, he proposed to pay himself the statutory commission on the final distribution of Donald’s funds to the co-executors of Donald’s estate.

The probate court denied Joyner’s request for statutory commission based upon Roberts v. Chew, 198 Ga. App. 653 (402 SE2d 770) (1991) (physical precedent only). In Roberts, supra, guardianship fees based on the guardian’s relinquishment of the wards’ assets to their respective estates were denied based upon the court’s determination that “no such commission shall be paid for handing over trust assets to a successor fiduciary. OCGA §§ 53-6-142; 29-2-43.” Id. Although the facts in Roberts are very similar to those in the present case, it is not binding precedent as it was a panel decision not fully concurred in by three judges. See Court of Appeals Rule 33 (a). Because neither OCGA § 53-6-142 nor § 29-2-43 applies to the present case, we decline to follow the holding in Roberts.

OCGA § 53-6-140 (a) provides, in pertinent part, that “[a]s compensation for his services, an administrator, executor, trustee, or guardian shall have a commission of 2V2 percent on all sums of money received by him on account of the estate . . . and a like commission on all sums paid out by him, either for debts, legacies, or distributive shares.” This statutory commission is limited by the language of OCGA § 29-2-43 which pertinently provides that “[i]f the guardian resigns, dies, or is removed under any circumstances, no commissions shall be allowed for turning over the estate to a new guardian.” OCGA § 29-2-43 does not apply to the present circumstances as, by its unambiguous terms, it applies to situations where a guardian has resigned, died, or is removed and a new guardian is appointed. In the present case the guardian is simply seeking a dismissal of his services as the property of the guardianship is now subject to the terms of the decedent’s will. Such a dismissal does not constitute his resignation, death, or removal and no new guardian will be appointed as the need for a guardianship no longer exists. While it could rationally be argued that the turning over of an estate by a guardian to an executor should stand on the same footing as that of a guardian-to-guardian transfer, the legislature, which has been very specific in such provisions, has not so provided.

The statutory commission is also limited by OCGA § 53-6-142, which provides that “[w]here, from any cause, a trust fund passes through the hands of several administrators or executors, by reason of the death, removal, or resignation of the first qualified administrator, executor, or otherwise, the fund shall not be subject to diminution by charges of commissions by each successive administrator or executor holding and receiving in the same right. In such a case, commissions for receiving the fund shall be paid to the first administrator or executor or his representative, and commissions for paying out shall be paid to the administrator or executor actually disbursing the fund, and no commissions shall be paid for handing over the fund to the successor of an administrator or executor.” (Emphasis supplied.) By its very terms, OCGA § 53-6-142 does not apply to guardians but to administrators and executors. The legislature’s failure to include guardians under the terms of OCGA § 53-6-142 can be explained by the existence of OCGA § 29-2-43 which prescribes when guardians are not entitled to the statutory commission. Furthermore, OCGA § 53-6-142 specifically addresses a situation in which successive administrators or executors are holding and receiving the trust “in the same right,” not a situation in which a guardian’s function is completed due to the death of his ward, and an executor is appointed pursuant to the terms of the decedent’s will.

Decided July 23, 1996.

Joyner & Burnette, Mark G. Burnette, for appellant.

John H. Donald, pro se.

Having interpreted the statutes herein involved pursuant to OCGA § 1-3-1 (a) and (b), we find that Joyner is entitled to the statutory commission provided for in OCGA § 53-6-140 (a).

Judgment reversed.

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

       As this case involves the interpretation of a statute as a matter of law, our review is de novo.

       OCGA § 29-2-72, not herein involved, sets forth the procedure for the resignation of a guardian.

       OCGA § 29-2-75, not herein involved, provides for the appointment of a successor guardian in the event of the first guardian’s death.

       OCGA § 29-2-45, not herein involved, addresses revocation of the guardian’s letters.

       OCGA § 29-2-84 sets forth the procedure for obtaining letters of dismission.


author: Birdsong, Presiding Judge.

text:
    A94A2148.
    A94A2149.
    BALLARD v. WARREN. WARREN v. BALLARD et al.
    (474 SE2d 259)
   Birdsong, Presiding Judge.

1. When these appeals were before this Court, we held the trial court erred in refusing to admit evidence of insurance payments paid on behalf of the plaintiff, because she and her husband misled the jury by testifying they had to pay their medical bills themselves and they had thus “opened the door” to be impeached by evidence that their bills were paid by insurance. Ballard v. Warren, 211 Ga. App. 23 (456 SE2d 589).

On certiorari, the Supreme Court combined this case (Case No. S95G1171) with another which it considered of identical import, Suber v. Luke (Case No. S95G1212), 266 Ga. 408 (467 SE2d 891). A majority of the Supreme Court held that both cases involved mere “anxiety over payment of medical bills,” (emphasis supplied) despite our finding in Ballard that the collateral source evidence which proved that plaintiff’s damages were paid by insurance was admissible solely because plaintiff and her husband had misled the jury as to the facts.

Because the Supreme Court has characterized the plaintiff’s evidence in this case as showing mere “anxiety” and not as being a false implication that plaintiff paid all her own bills because she had no insurance, we now hold that in this particular case the trial court did not err in refusing to allow defendants to introduce evidence that plaintiff could not have felt such “anxiety” because her medical bills were paid by her own insurance.

2. We must now consider whether the verdict was so excessive as to be inconsistent with the preponderance of the evidence. See Ballard, 211 Ga. App. at 25. In view of the Supreme Court’s inference that plaintiff’s and her husband’s testimony merely expressed immaterial “anxiety,” we cannot say the jury’s verdict was induced by prejudice, bias or corrupt means. Id.

Decided July 24, 1996.

Baker, Kinsman & Hollis, Norman M. Kinsman, for Ballard.

Weiner, Yancey, Dempsey & Diggs, Beryl H. Weiner, for Warren.

3. As to our ruling in the cross-appeal (Case No. A94A2149), plaintiff did not state in her enumeration of error the grounds on which she contends she is entitled to a new trial. We shall therefore not consider it. See MOM Corp. v. Chattahoochee Bank, 203 Ga. App. 847, 849 (418 SE2d 74); Pier 1 Imports v. Chatham County &c., 199 Ga. App. 294, 296 (404 SE2d 637).

Judgment affirmed.

Blackburn and Ruffin, JJ, concur.


text:
    A96A1284.
    ALLENDER v. THE STATE.
    (474 SE2d 257)
   Birdsong, Presiding Judge.

Tina Georgette Allender filed a plea of former jeopardy to prosecutions for driving under the influence and improper lane change. Allender’s plea in bar asserted that the suspension of her driver’s license by the Georgia Department of Public Safety was a “prior prosecution” which placed her in jeopardy and bars further prosecution for the criminal offenses. The trial court denied Allender’s plea in bar, and Allender appeals. Held:

1. The State concedes Georgia law allows a criminal defendant the right to a direct appeal from the denial of a plea of former jeopardy (Young v. State, 251 Ga. 153 (303 SE2d 431); Patterson v. State, 248 Ga. 875 (287 SE2d 7)), but the State seeks dismissal of this appeal as a frivolous delaying tactic by appellant. The State contends this denial of Allender’s plea in bar is not subject to direct appeal because Allender’s license suspension was an action taken by a state agency and there was “no prior act, judgment, plea, order, or disposition in a court of law that could be the basis for a direct appeal based upon double jeopardy.” In this statement, the State confuses the order being appealed (the denial of a plea in bar for former jeopardy) with the basis for the plea in bar (the driver’s license suspension by a state agency). By asserting there was “no prior act, judgment, plea, order, or disposition in a court of law that could be the basis for a direct appeal based upon former jeopardy,” the State implies that the “prior act” (the license suspension) which allegedly constituted former jeopardy is the “basis for a direct appeal.” In fact, the subject of this appeal is not the “prior act” of the license suspension but is the trial court’s judgment denying appellant’s plea in bar.

The State makes this argument, in effect, to invite this Court to create a rule whereby an appeal from a denial of a plea of former jeopardy would not be subject to direct appeal if the plea itself is determined to be “frivolous and dilatory.” The State contends Allender’s plea of former jeopardy based on an administrative action was “frivolous and dilatory” as a matter of law because this Court has never recognized administrative driver’s license proceedings as an act to which jeopardy attaches. See Haynes v. State, 245 Ga. 817 (268 SE2d 325). The State further contends appellant’s “frivolous and dilatory” plea of former jeopardy did not divest the trial court of jurisdiction to prosecute the case (see Rielli v. Oliver, 170 Ga. App. 699 (318 SE2d 173)), and concludes we do not have jurisdiction of an appeal of this plea denial unless the interlocutory appeal procedures of OCGA § 5-6-34 were followed.

We decline to create such a rule. It is true that in Rielli, supra at 700, we held that Rielli’s trial “may proceed during the pendency of the appeal from the denial of his plea of double jeopardy, which appeal will be heard and determined by this court according to the procedure generally applicable to direct appeals.” However, Rielli was an unusual case; that appellant’s plea had been specifically determined to be dilatory and frivolous, and the trial judge ordered that the trial be held on the date scheduled. Another trial judge denied Rielli’s prayer for an “order of prohibition” preventing that trial; it was from that denial that Rielli’s appeal was taken in 1984. At issue was the trial court’s refusal to halt Rielli’s trial. The trial court’s refusal to halt Rielli’s trial, however, must be balanced with the observation made the following year (1985) in Hubbard v. State, 254 Ga. 694, 695 (333 SE2d 827) that “[i]n double jeopardy claims the accused is saying, ‘I may not now be tried because I have previously been placed in jeopardy.’ ” (Emphasis supplied.) Such an assertion by a defendant may be true, and this is why the defendant has a right to direct appeal from a denial of a plea of former jeopardy. See Mize v. State, 262 Ga. 489, 493, fn. 8 (dissent) (422 SE2d 180).

We are not expressly called on here to overrule anything concluded in Rielli, because in this case the trial court, after denying appellant’s plea, did not attempt to retain jurisdiction to try her for the criminal offenses. We are called on to create a judicial rule that a denial of a plea of former jeopardy on account of a driver’s license suspension is not subject to direct appeal because such a plea is frivolous. This we cannot do, for the right of direct appeal of a denial of former jeopardy is, as even Rielli concedes, firmly established in Patterson v. State, supra.

2. We affirm the trial court’s denial of appellant’s plea in bar. The suspension of appellant’s driver’s license was not an act to which jeopardy attached. Haynes, supra; Shaw v. State, 239 Ga. 690, 692 (238 SE2d 434); Oliver v. State, 216 Ga. App. 76 (453 SE2d 746); State v. Steien, 214 Ga. App. 345 (447 SE2d 701); Deal v. State, 213 Ga. App. 131 (443 SE2d 713); Dotson v. State, 213 Ga. App. 7, 8 (1) (443 SE2d 650).

Decided July 24, 1996.

Donald C. Turner, for appellant.

Paul L. Howard, Jr., Solicitor, Deborah W. Espy, Allison L. Byrd, Assistant Solicitors, for appellee.

Judgment affirmed.

Beasley, C. J., and Blackburn, J., concur.


text:
    A96A1319.
    KEITH v. THE STATE.
    (474 SE2d 256)
   Blackburn, Judge.

This is the second appearance of this case before this Court. Hela Ann Keith was convicted of the misdemeanor offense of permitting another to unlawfully operate a vehicle. Keith appealed, arguing that the trial court erred in requiring her to try the case without her attorney present and in failing to grant her a jury trial. We remanded with direction that the trial court determine whether these rights were waived. Keith v. State, 218 Ga. App. 729, 730-731 (463 SE2d 51) (1995). On remand the trial court found that these rights were not waived and set aside Keith’s conviction. The trial court also denied Keith’s plea in bar based on double jeopardy seeking to bar a retrial. Keith now appeals the denial of her plea in bar.

Keith contends that, by requiring her to represent herself at the initial trial without the benefit of counsel, both the trial court and the prosecutor engaged in misconduct warranting the imposition of the double jeopardy bar. Pretermitting the issue of whether there was any judicial or prosecutorial misconduct, we disagree.

“It has been recognized in many cases that the primary purpose underlying the Double Jeopardy Clause is to prohibit the retrial of a criminal defendant where the prosecution has, at the initial trial, produced insufficient evidence to sustain a conviction. [Cits.] The general rule is that retrial of the defendant is not barred where reversal of the conviction results from trial error rather than evidentiary insufficiency.” Williams v. State, 258 Ga. 305, 311 (369 SE2d 232) (1988). “[E]ven intentional prosecutorial misconduct do[es] not raise the bar of double jeopardy, notwithstanding the fact that the defendant was thereby deprived of due process of law, unless the prosecutor’s actions were intended to subvert the protections afforded by the Double Jeopardy Clause. [Cits.]” Id. at 312; see also Benford v. State, 164 Ga. App. 733, 734-735 (298 SE2d 39) (1982) (suggesting that the same standards apply to both prosecutorial and judicial misconduct). Keith’s conviction was overturned for trial error and not evidentiary insufficiency. Furthermore, although the need for a retrial was arguably a foreseeable consequence of the prosecutor’s and trial court’s actions during the initial trial, no evidence suggests that retrial was an intended consequence. Accordingly, the trial court properly determined that the double jeopardy bar did not apply.

Decided July 24, 1996.

Green & Associates, Patrick H. Head, for appellant.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.

Judgment affirmed.

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


text:
    A96A0800.
    DEPARTMENT OF TRANSPORTATION v. NORRIS et al.
    (474 SE2d 216)
   McMurray, Presiding Judge.

Plaintiff Steven Earl Norris, individually, and as administrator of the estate of Ann Lois Norris, deceased, brought this action for wrongful death and other damages against defendants Reeves Construction Company and the Georgia Department of Transportation (“DOT”). DOT moved to dismiss plaintiff’s action for several reasons including an alleged failure to timely file an ante litem notice of claim. Following the denial of DOT’s motion to dismiss, we granted permission for interlocutory review of that ruling. Held:

With one addition, the facts in Hardy v. Candler County, 214 Ga. App. 627 (448 SE2d 487) are substantially similar to those in the case sub judice. In both cases the ante litem notice of claim required under OCGA § 50-21-26 (a) was mailed within 12 months of the date of loss but received after the expiration of that period of time. The holding in Hardy was that “written notice of the claim must be received by the State within the requisite statutory period. . . Id. at 631.

The case sub judice presents a further issue in that plaintiff attempted to provide the required notice of the claim by a facsimile transmission which was sent and received within the requisite period of time. The superior court determined that the subsections of OCGA § 50-21-26 (a) present independent requirements and that the facsimile transmission satisfied the requirement of OCGA § 50-21-26 (a) (1) that the notice be given in writing. The order denying DOT’s motion to dismiss also states that: “The requirement of receipt of the notice within twelve months does not require that the certified mail or personal delivery be accomplished within the same time frame so long as notice has been given in writing and ‘mailed by certified mail, return receipt requested,’ within that time frame.”

Decided July 9, 1996

Reconsideration denied July 29, 1996

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, Cathy A. Cox-Brakefield, Assistant Attorney General, for appellant.

Kirbo, McCalley & Forehand, Thomas L. Kirbo III, David S. Herndon, Sims, Fleming & Spurlin, John C. Spurlin, for appellees.

Contrary to the holding below, it seems to us necessary to read the subsections of OCGA § 50-21-26 (a) together in order to perceive any coherent scheme and as much is explicitly required by the final phrase in that section heading, so that there shall be no tort claim against the State “without first giving notice of the claim as follows:” This is sufficient to require that the subsections of OCGA § 50-21-26 (a) be read together, particularly since the alternative by failing to provide for any consistent method of notification of claims would hardly square with common sense and sound reasoning. Bennett Elec. Co. v. Spears, 188 Ga. App. 502, 503 (373 SE2d 286). It follows that a proper notice of claim must be given by a writing which is both delivered by the date required by OCGA § 50-21-26 (a) (1) and delivered by the method provided in OCGA § 50-21-26 (a) (2).

It may also be added that a facsimile transmission does not satisfy the statutory requirement that notice be “given in writing.” Such a transmission is an audio signal via a telephone line containing information from which a writing may be accurately duplicated, but the transmission of beeps and chirps along a telephone line is not a writing, as that term is customarily used. Indeed, the facsimile transmission may be created, transmitted, received, stored and read without a writing, in the conventional sense, or hard copy in the technical vernacular, having ever been created. The superior court erred in denying DOT’s motion to dismiss.

Judgment reversed.

Johnson and Ruffin, JJ, concur in the judgment only.


author: Judge Harold R. Banke.

text:
    A96A0811.
    ROUNDTREE v. THE STATE.
    (474 SE2d 224)
    Decided July 11, 1996
    Reconsideration denied July 29, 1996

      Saia & Richardson, Joseph J. Saia, for appellant.
   Judge Harold R. Banke.

Deon Roundtree was convicted of cocaine trafficking in violation of OCGA § 16-13-31. On appeal, Roundtree raises three errors. Held:

1. In his first two enumerations, Roundtree appeals the denial of his motion to suppress and the validity of a vehicle search. However, this Court previously affirmed the denial of Roundtree’s motion to suppress and determined that the police had probable cause to search the vehicle. Roundtree v. State, 213 Ga. App. 793, 794 (446 SE2d 204) (1994). Res judicata precludes relitigation of the denial of the motion to suppress. Blalock v. State, 201 Ga. App. 461 (411 SE2d 914) (1991). The determination that the police had probable cause to search the vehicle renders moot the voluntariness of consent issue.

2. We reject Roundtree’s contention that his two prior cocaine convictions by the State of Florida were improperly admitted into evidence. Before similar transaction evidence can be introduced, the State must make three affirmative showings as mandated by Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). See USCR 31.3 (B).

The State’s similar transaction evidence showed that Roundtree was arrested for trafficking in cocaine and police found 134.5 grams of crack cocaine and 135 grams of marijuana during a search of his residence. The crack cocaine was wrapped and packaged in the same manner as the cocaine in the instant case. Roundtree pled guilty to trafficking in cocaine and possession of marijuana with intent to sell. In the other incident, after Roundtree was arrested police discovered 156 grams of cocaine in the trunk of Roundtree’s car. Although Roundtree was charged with trafficking in cocaine, he pled guilty to the lesser charge of possession of cocaine with intent to sell.

Roundtree was the perpetrator in the earlier crimes, they were strikingly similar, and the independent crimes tended to prove the facts for which they were offered to show Roundtree’s conduct or bent of mind. Williams, 261 Ga. at 642. Similar transactions need not be identical in every respect. Sessions v. State, 207 Ga. App. 609 (428 SE2d 652) (1993). Because the State adequately made the three affirmative showings required by Williams, supra, the trial court did not err in admitting the similar transaction evidence.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

John C. Pridgen, District Attorney, for appellee.


text:
    A96A1124.
    GERRY et al. v. K-MART et al.
    (474 SE2d 260)
   Blackburn, Judge.

Linda Gerry filed suit against K-Mart and one of its security employees, Michael Turner, for malicious prosecution and false imprisonment after she was arrested and charged with shoplifting. Her husband joined as a plaintiff alleging loss of consortium. The trial court granted summary judgment to K-Mart and Turner, and Gerry and her husband appeal.

On September 18, 1990, Gerry was detained and arrested for shoplifting while in a K-Mart department store. The State moved for a judgment of nolle prosequi based upon Gerry’s agreement to perform community service as part of a pre-trial diversion program. The State’s motion was granted on September 4, 1992. On September 10, 1992, Gerry and her husband filed a complaint against K-Mart and Turner, seeking damages, inter alia, for malicious prosecution and false imprisonment stemming from the September 18, 1990 incident. The trial court granted summary judgment to K-Mart and Turner on the ground that Gerry’s agreement to undergo pre-trial diversion barred her claims for malicious prosecution and false imprisonment.

1. Gerry and her husband contend that the trial court erred in dismissing the malicious prosecution claim.

“It is essential to the maintenance of an action for malicious prosecution that the plaintiff shall prove that the prosection not only terminated, but terminated in his favor. . . . [T]he rule seems to be well settled that where the termination of the prosecution has been brought about by compromise and agreement of the parties, an action for malicious prosecution can not be maintained.” (Citations and punctuation omitted.) Laster v. Star Rental, 181 Ga. App. 609 (353 SE2d 37) (1987). While conceding the validity of this general rule of law, Gerry and her husband contend that it is inapplicable in this case because the defendants herein were not parties to the agreement between the accused and the State which resulted in the termination of the criminal action. We disagree.

The defendant, by consenting to a termination of the criminal action, precluded a resolution in her favor, which is an essential element of a malicious prosecution claim. See Waters v. Winn, 142 Ga. 138, 141 (82 SE 537) (1914); see also Prosser, Law of Torts, pp. 839-840, § 119 (4th ed. 1971). Because the plaintiff herein cannot establish an essential element of her claim, and the husband’s claim is derivative, we affirm the trial court’s grant of summary judgment to the defendants on this issue.

2. Gerry and her husband contend that the trial court erred in holding that her entry into a pre-trial diversion program barred the false imprisonment claim, and also contend that the trial court erred in dismissing that claim.

The trial court, in its January 24, 1996 order, held that “Ms. Gerry’s agreement to serve a reduced sentence in exchange for nolle prosequi is essentially a plea bargain and, as such, demonstrates that K-Mart’s employees acted reasonably in detaining Ms. Gerry for shoplifting.” A committal hearing had been held in this matter, and the magistrate had determined that probable cause existed, and bound the case over. A magistrate’s determination of probable cause is prima facie evidence of the existence thereof. Monroe v. Sigler, 256 Ga. 759, 760 (353 SE2d 23) (1987).

OCGA § 51-7-60 provides qualified immunity to mercantile establishments and their agents from claims of false imprisonment arising from the detention or arrest of suspected shoplifters when “it is established by competent evidence: (1) That the plaintiff had so conducted himself or behaved in such manner as to cause a man of reasonable prudence to believe that the plaintiff, at or immediately prior to the time of the detention or arrest, was committing the offense of shoplifting, as defined by Code Section 16-8-14; or (2) That the manner of the detention or arrest and the length of time during which such plaintiff was detained was under all the circumstances reasonable.”

We have previously held that both prongs of OCGA § 51-7-60 must be proven before a defendant can claim qualified immunity. “One who has done nothing to give the impression that he or she is shoplifting should not be subject to any detention at all for that offense; and, conversely, one who has acted in such a way as to give the impression that he or she is shoplifting but who is in fact innocent of any such misconduct should not be subjected to continued detention beyond that which is reasonably necessary to ascertain the true facts.” K Mart Corp. v. Adamson, 192 Ga. App. 884, 886 (386 SE2d 680) (1989) (customer who carried a dress, with sales tags in place, into the store was stopped, interrogated and then released without charges being pressed).

In the subject case, the magistrate’s finding of probable cause establishes, as a matter of law, that Ms. Gerry’s conduct was sufficient to justify K-Mart’s belief that she was shoplifting, and to investigate the matter. See Monroe v. Sigler, supra. Ms. Gerry’s voluntary entry into the pre-trial diversion program and the acceptance of the community service penalties imposed therein, when coupled with the magistrate’s findings, establish that she is not one “who is in fact innocent of any such misconduct” under our holding in K Mart Corp. v. Adamson, supra.

Decided July 29, 1996.

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

Francis E. Wiggers, Jr., Mary B. Galardi, for appellees.

Accordingly, the trial court did not err in granting K-Mart’s motion for summary judgment on the false imprisonment claim.

Judgment affirmed.

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


author: Beasley, Chief Judge.

text:
    A96A0895.
    SMITH v. THE STATE.
    (474 SE2d 272)
   Beasley, Chief Judge.

Smith appeals the denial of his motion for new trial after being tried and convicted by jury of burglarizing the Folkston Golf Club in Charlton County. OCGA § 16-7-1.

1. Smith first contends there was insufficient credible evidence to convict him of the crime beyond a reasonable doubt. The evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) (1991); King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) (1994). Although the evidence was contradictory, there was sufficient evidence to meet the test as to each element of the charge that Smith without authority and with the intent to commit a theft broke into the golf club tool shed.

Gibson, an admitted accomplice, testified that Smith was involved in the burglary. Gibson claimed he knew nothing of the burglary but was merely asked by his friend, Maxwell, to drive to a road near the golf course. When Gibson and Maxwell arrived, Smith came out of the woods and loaded the car with an air compressor, a welder, a jigsaw, and other tools. Smith told Gibson to drive to his house where the equipment was unloaded. The jigsaw was left in Gibson’s car, and Smith later told him he could have it.

The State called Lloyd to testify he had called Detective Jones of the Charlton County Sheriff’s Office about three weeks after the burglary and told Jones that Smith offered to sell him a welder and an air compressor stolen by Smith. Lloyd testified instead that he told Jones that Gibson, not Smith, contacted him and wanted to sell him a car full of tools. Detective Jones testified as to Lloyd’s prior inconsistent statement.

Pamela Smith, the defendant’s niece, was called to testify that she had seen a welder and an air compressor in Smith’s house, where she was living. She instead testified she told Jones she had not seen such items in the house. When recalled, Jones testified as to Pamela Smith’s original statement.

Davis testified on Smith’s behalf. He identified the stolen welder as having been sold to him by a black man he did not know and by a white man whom he had recognized. He stated neither Smith nor Gibson was the black man. Jones testified that Davis identified two persons in a photo lineup other than Gibson and Smith as the two men who attempted to sell him the welder stolen from the golf club.

“Conflicts in the testimony of the witnesses, including the [S]tate’s witnesses, is a matter of credibility for the jury to resolve. [Cits.] As long as there is some [competent] evidence, even though contradicted, to support each fact necessary to make out the [S]tate’s case, the jury’s verdict will be upheld. [Cit.]” Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311) (1976).

2. Smith’s next enumeration also challenges the sufficiency of the evidence and is reviewed under that standard. He cites OCGA § 24-4-8, which provides that in “felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness.....” Smith contends this prohibits his conviction on the testimony of accomplice Gibson, when it was corroborated only by the impeachment testimony of Jones.

Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982), held that “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes.” Smith’s niece and Lloyd had made statements to a law enforcement officer that were inconsistent with statements they made while subject to cross-examination.

We find no Georgia case prohibiting conviction solely upon an accomplice’s testimony corroborated by Gibbons-type testimony. Cases that have addressed the issue of corroboration evidence under OCGA § 24-4-8 have favored a finding of sufficiency: “If the verdict is founded on slight evidence of corroboration connecting a defendant with the crime, the verdict is legally sufficient. (Cit.) The necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime. [Cits.]” (Punctuation omitted.) Bradford v. State, 262 Ga. 512 (421 SE2d 523) (1992). See also Belcher v. State, 207 Ga. App. 117, 118 (427 SE2d 88) (1993) (not necessary that corroboration of testimony given by an accomplice of itself be sufficient to warrant a guilty verdict, or that testimony of accomplice be corroborated in every particular; amount of corroborative extraneous evidence necessary to connect accused with the commission of the offense is within the province of the jury).

3. Smith enumerates as error that, in violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), the prosecution failed timely to disclose evidence and information favorable to Smith. The test is whether the material suppressed was favorable to the accused as to the issues of guilt or punishment, and whether the accused timely requested the favorable material. Brady, supra at 87; United States v. Bagley, 473 U. S. 667, 675 (105 SC 3375, 87 LE2d 481, 489) (1985); Stroud v. State, 246 Ga. 717, 720 (2) (c) (273 SE2d 155) (1980).

(a) Smith contends the prosecution had information suggesting two individuals other than Smith and Gibson actually possessed and sold the stolen welder to Davis. The State had submitted Davis’s written statement to Smith before trial, but withheld the fact that Davis had identified in a photo lineup someone other than Smith as the man who tried to sell the equipment to him.

This error was not preserved for appeal. Smith objected on the basis of hearsay and not on the grounds of a Brady violation. A defendant may not raise an alleged Brady violation for the first time on appeal. Carter v. State, 142 Ga. App. 351, 352 (3) (235 SE2d 750) (1977). Smith’s objection on hearsay grounds is insufficient. In order to preserve an objection upon a specific ground for appeal, the objection must be made at trial upon that specific ground. Norman v. State, 197 Ga. App. 333, 334 (3) (398 SE2d 395) (1990).

Even if properly preserved, Brady was not violated since it does not require pretrial disclosure of exculpatory material. It applies only to the discovery after trial of information which had been known to the prosecution but unknown to the defendant. See Smith v. State, 214 Ga. App. 631, 634 (12) (448 SE2d 906) (1994). When the material is disclosed at trial, as it was during Jones’ testimony, there is no Brady violation. Fuqua v. State, 183 Ga. App. 414, 417 (1) (b) (359 SE2d 165) (1987).

Smith argues Brady is violated if the defendant is able to show that pretrial disclosure would have benefitted him and that the delayed disclosure denied him a fair trial. He cites Dennard v. State, 263 Ga. 453, 454 (4) (435 SE2d 26) (1993), and Jordan v. State, 217 Ga. App. 420, 421 (1) (457 SE2d 692) (1995), maintaining that had he known before trial, he could have ensured that the two other men in the lineup would have been available to testify. He could have asked for a recess or a continuance during trial to achieve the same result.

Furthermore, the information is not exculpatory, since it shows only that two other men were in possession of stolen goods a few weeks after the burglary. Brady applies only to exculpatory information, which is defined “as clearing or tending to clear from alleged fault or guilt; excusing.” Moclaire v. State, 215 Ga. App. 360 (1) (451 SE2d 68) (1994). Evidence that someone else tried to sell the stolen items to Davis is also irrelevant, since the State did not accuse Smith of selling the stolen property. OCGA § 24-2-1.

(b) Smith asserts the State committed an additional Brady violation by not following up on Gibson’s statement that he was at his girl friend’s house prior to the burglary of the golf club. Smith’s counsel contacted Gibson’s girl friend, Ford, after trial and discovered she had not been interviewed by the State. Ford’s post-trial affidavit stated Gibson was not at her house prior to driving to the pickup point. Smith maintains he was harmed in that he could not impeach Gibson with a pretrial statement from Ford which the State was obliged to obtain.

Brady would be implicated only if the State had a duty to check with Ford to determine if Gibson was telling the truth on this point. Apparently, Gibson’s whereabouts prior to the burglary were of little or no importance to the State, so Ford simply was not contacted. “The State is under no requirement to conduct an investigation on behalf of a defendant. [Cit.]” (Punctuation omitted.) Wright v. State, 211 Ga. App. 474, 476 (2) (440 SE2d 27) (1993). Prosecutorial inaction cannot bring Ford’s post-trial information within the ambit of Brady. Besides, once Smith heard the details of Gibson’s testimony at trial, he could have sought to contact Ford for her testimony but failed to do so.

4. The State was permitted to impeach Lloyd, its own witness, because he had made a previous contradictory statement to Detective Jones. OCGA § 24-9-81. Smith alleges the trial court erred in admitting a certified copy of an indictment, plea bargain agreement, and probation order for Lloyd for possession of a firearm by a convicted felon and for a drug charge. The weapons charge had been dismissed in exchange for a guilty plea to the drug charge, but the entire document was admitted into evidence without redaction.

A witness may be impeached by showing a conviction of a crime of moral turpitude. Syfrett v. State, 210 Ga. App. 185, 187 (4) (435 SE2d 470) (1993). Specific instances of misconduct may not be used to impeach a witness’s character or credibility, unless the misconduct has resulted in conviction of such a crime. Woods v. State, 210 Ga. App. 172, 173 (1) (435 SE2d 464) (1993). “[A] mere indictment or a charge or an arrest or a trial and acquittal. . . are not legal methods of impeachment.” (Citations and punctuation omitted.) Syfrett, supra. The proper method of proving the conviction is by introducing a certified copy. Woods, supra. We must determine whether admitting evidence of the prior felony charge constituted prejudicial error and, if so, if it was harmless beyond a reasonable doubt. Chapman v. California, 386 U. S. 18, 24 (III) (87 SC 824, 17 LE2d 705) (1967); Barr v. State, 216 Ga. App. 554, 556 (2) (455 SE2d 99) (1995).

As to the weapons charge, admitting the indictment was error since Lloyd had never been convicted of that crime; a conviction must be shown. Woods, supra. Smith argues the error was harmful in that the indictment and probation dealt with a completely different crime than that earlier acknowledged by Lloyd. Smith also argues that because Lloyd’s testimony was helpful to Smith and was challenged by a law enforcement officer, Lloyd’s credibility was critical, as evidenced by the jury’s difficulty on the issue of credibility of witnesses.

Prior to the State’s introduction of the document, Lloyd admitted on cross-examination that he had “been in trouble and got on probation,” and acknowledged he had handled “hot” merchandise in the past. Given that the document was cumulative of other evidence as to Lloyd’s character which he himself introduced, no harm occurred. Since the information did not add measurably to impeachment, it is highly probable that it did not contribute to the jury’s verdict against Smith. Cf. Stewart v. State, 220 Ga. App. 295, 296 (2) (469 SE2d 424) (1996).

5. Smith next contends the court erred in refusing to give a cautionary instruction that Gibson was an accomplice witness as defined in OCGA § 24-4-8, that the jury should receive accomplice testimony with caution and suspicion and that “there is a fine line between plea bargaining and coerced confessions.” The standard of review is whether the trial court abused its discretion. Whitworth v. Connecticut Indem. Co., 185 Ga. App. 682, 683 (2) (365 SE2d 523) (1988).

The trial court found the request untimely, since Smith did not submit it until just before closing arguments. Uniform Superior Court Rule 10.3 requires, “All requests to charge shall be . . . submitted to the court ... at the commencement of trial, unless otherwise provided by pre-trial order; provided, however, that additional requests may be submitted to cover unanticipated points which arise thereafter.” The issue of Gibson as an accomplice was not unanticipated. Refusing to give the requested charge was not error on this basis. Gen. Warranty Corp. &c. v. Cameron-Hogan, Inc., 182 Ga. App. 434, 438 (9) (356 SE2d 83) (1987).

Nor is this an instance “where there has been a substantial error in the charge which was harmful as a matter of law.” OCGA § 5-5-24 (c). The charges given essentially covered Smith’s requests, including instructions on OCGA § 24-4-8 and on the jury being the exclusive judge of credibility. If instructions substantially relate the principles in the requested charge, there is no reversible error. Wright v. State, 211 Ga. App. 474, 477 (4) (440 SE2d 27) (1993).

6. Smith’s final enumeration is that the court erred in failing to grant a new trial on the basis of newly discovered evidence. “ ‘ “It is incumbent on a party who asks for a new trial on [this] ground ... to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.” [Cits.]’ Timberlake v. State, 246 Ga. 488[, 491 (1)] (271 SE2d 792) [(1980)].” Greenway v. State, 207 Ga. App. 511, 515 (6) (428 SE2d 415) (1993).

With regard to Davis’s identification of the two men in the photo lineup, the standard is not met as to the first prong, since this evidence was disclosed at trial by Jones. Further, as discussed in Division 3 (a), Smith failed to exercise due diligence to ensure that the two other men were present to testify once they were identified at trial, and the information at issue is neither exculpatory nor material.

As to Ford’s affidavit, while her contradicting Gibson’s testimony on his whereabouts before the burglary did not come to light until after trial, as discussed in Division 3 (b), Smith failed to exercise due diligence to follow up when he heard the details. In addition, Ford’s affidavit would have been used solely to impeach Gibson, thus running afoul of the sixth part of the test.

The conditions necessary for granting a new trial were not present as to either piece of “newly discovered” evidence. Denial óf the motion for a new trial on this ground was proper.

Judgment affirmed.

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

Decided July 30, 1996.

Gary E. Gowen, for appellant.

Richard E. Currie, District Attorney, Alexander J. Markowich, Assistant District Attorney, for appellee.

       Because we determine that admission of the document was harmless error, we do not address the issue of whether any portion of the document, such as the guilty plea on the drug charge, would have been admissible if inadmissible portions were redacted. See, e.g., Stewart v. State, 220 Ga. App. 295 (2) (469 SE2d 424) (1996); Willis v. State, 214 Ga. App. 659, 660 (2) (448 SE2d 755) (1994). Compare Eiland v. State, 213 Ga. App. 838 (445 SE2d 765) (1994) (given extreme prejudicial nature of indictment and lack of overwhelming evidence of guilt, trial court’s failure to either redact objectionable material or to keep entire indictment out of evidence mandated a reversal of the conviction). In the redaction cases cited, the State was attempting to impeach the defendant, not a witness, but the determining issues are the same.


text:
    A96A0974.
    THE STATE v. BRANNAN.
    (474 SE2d 267)
   Judge Harold R. Banke.

The Gwinnett County Solicitor charged Robert G. Brannan with reckless conduct, a misdemeanor. Brannan’s three-year-old child, who was visiting at his father’s home, was accidentally shot in the foot by a rifle the child found under the bed. The accusation alleged that Brannan “consciously disregarded] a substantial and unjustifiable risk that his act of leaving an unattended and loaded rifle in the common play area of the child would cause harm to another. . . .” Brannan moved to suppress the weapon seized by the officer during a search of the bedroom and to exclude evidence of several statements he made to a police officer during the follow-up investigation of the shooting. The trial court granted those motions, and the State appeals. Held:

1. Suppression of the Weapon. We may reverse the trial court’s suppression of the rifle only if its decision was “clearly erroneous.” In reviewing the record to make that determination, we must accept the trial court’s ruling on disputed facts and defer to its judgment on the credibility of witnesses. State v. Davis, 261 Ga. 225, 226-227 (404 SE2d 100) (1991).

The evidence developed on the motion showed that a Snellville police officer came to Brannan’s house in response to a 911 call. Officer Wellmaker found Brannan in the living room at the front door, applying a rag to his son’s bleeding foot. After checking on the child, Wellmaker asked Brannan “where the weapon was”; he responded that it was “upstairs in the bedroom” under the bed. Bran-nan also told the officer the gun had discharged and shot the child in the foot. Concerned with making sure the weapon was safe and would not discharge again, Wellmaker went upstairs and found the stock of the rifle protruding from under the bed. He removed a jammed bullet and the clip, replaced the weapon where he found it, and returned downstairs to speak to Brannan and report to a superior officer who had just arrived on the scene. Officer Wellmaker asked for Brannan’s house keys and told him he would “secure the residence” while Brannan went to the hospital with his son. After Brannan left, Wellmaker and two other officers returned to the bedroom and seized several items of evidence, including the weapon.

The rifle represented evidence of the crime charged, and it appeared in plain view to the officer after he entered the bedroom. An officer who is lawfully in a place and sees in plain view evidence relating to a crime, or instrumentalities of a crime, may seize that evidence. Galbreath v. State, 213 Ga. App. 80, 82 (2) (443 SE2d 664) (1994). The important question is whether the officer was lawfully in the bedroom when he seized the weapon. The trial court found Bran-nan did not consent to the officer’s presence in the bedroom and ruled that no emergency situation justified his going there. We find this latter conclusion clearly erroneous.

“[A]n exigent circumstance which does justify the warrantless entry of a [bedroom in a] private home is the officer’s reasonable belief that such action is a necessary response on his part to an emergency situation.” Coker v. State, 164 Ga. App. 493, 496 (5) (297 SE2d 68) (1982). See Michigan v. Tyler, 436 U. S. 499, 509 (98 SC 1942, 56 LE2d 486) (1978) (officers may enter a burning building to put out a blaze and, while inside, seize evidence found in plain view). In Coker, supra, the Court found exigent circumstances allowed officers to enter a house when they reasonably feared for the safety of a child inside. Similarly, in State v. Scott, 176 Ga. App. 887, 889 (2) (339 SE2d 276) (1985), exigent circumstances allowed police arresting a suspect inside a home to make a cursory search of the house based on a reasonable belief that another occupant of the house might present an armed threat. See also Maryland v. Buie, 494 U. S. 325, 336-337 (110 SC 1093, 108 LE2d 276) (1990), upholding such a “protective sweep” to detect any immediate danger.

Although we review police actions from the standpoint of a hypothetical “reasonable” officer, we must measure those actions from the foresight of an officer acting in a quickly developing situation and not from the hindsight of which judges have benefit. State v. Crisanti, 220 Ga. App. 705, 710 (470 SE2d 314) (1996). See United States v. Rodgers, 924 F2d 219, 222 (11th Cir. 1991) (test whether exigent circumstances exist is an objective one).

In this case, the evidence showed without contradiction that after Officer Wellmaker entered Brannan’s house in response to the emergency call and realized a weapon had discharged, he promptly inquired about the gun and immediately took steps to disarm the rifle. This police officer, like the officer in United States v. Doe, 819 F2d 206, 210 (9th Cir. 1987), was faced with a situation in which a rifle had fired and injured a victim. The victim remained in the house, and emergency medical personnel were arriving to treat the victim. As in Doe, this officer acted reasonably in conducting a warrantless search for the rifle, which represented a “ ‘substantial risk of harm to the persons involved.’ ” (Citation omitted.) Id. We find the officer was, therefore, entitled to seize the weapon after he disarmed it and the trial court’s ruling that this weapon presented no emergency is clearly erroneous. Compare State v. Williams, 212 Ga. App. 164, 165-166 (2) (441 SE2d 501) (1994), in which the defendant presented evidence challenging the officer’s assertion of an emergency situation.

We also reject any contention that the officer’s failure to seize the weapon when he first found it prevented him from returning to retrieve it after Brannan and his injured child went to the hospital. The transcript of the motion to suppress hearing shows clearly that Officer Wellmaker was involved in an ongoing investigation of the incident. Between the time he secured the weapon and the time he seized it, the officer reported to his superior, checked the progress of emergency medical personnel, and obtained house keys from Bran-nan. Under the circumstances, his subsequent seizure of the weapon constituted a mere continuation of his first search for it. See Michigan v. Tyler, 436 U. S. at 511 (upholding warrantless search made valid by exigency but delayed by circumstances); Hatten v. State, 253 Ga. 24, 25 (2) (315 SE2d 893) (1984) (upholding lengthy search as “prompt” under the circumstances).

2. Exclusion of Brannan’s Statements. The trial court suppressed three statements Brannan gave to another Snellville police officer because Brannan was not advised of his Miranda rights prior to his making any of these statements. See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

“For Miranda to apply a person must be taken into custody or otherwise deprived of his freedom of action in any significant way. [Cits.]” Hardeman v. State, 252 Ga. 286, 288 (1) (313 SE2d 95) (1984). As with Brannan’s motion to suppress the weapon, we apply a “clearly erroneous” standard of review. Harrell v. State, 204 Ga. App. 738, 740 (3) (420 SE2d 631) (1992). To determine whether Brannan’s statements were custodial, we apply an objective standard and determine whether a reasonable person in his situation would have believed he was physically deprived of his freedom of action in a significant way. Id. at 739-740. We address the circumstances of each statement separately.

(a) Hospital Interview. Sgt. Mitchell went to the hospital and found Brannan there. She either asked him to step outside with her or accompanied him outside while he smoked a cigarette. She told Brannan that she had consulted with the district attorney to determine if his acts constituted a felony and had been informed they did not. She also told him that no criminal charges were pending but that the matter was under investigation. She denied threatening him in any way, denied telling him he was not free to leave, and believed he spoke to her voluntarily. After Officer Mitchell interviewed Bran-nan about the shooting, she told him she would contact him in a few days to make a formal statement at the station, and they parted.

We find the trial court’s exclusion of this interview clearly erroneous, for we do not believe a reasonable person would have considered himself “in custody” under these circumstances. Brannan spoke with the officer in a public place, outside a hospital. The officer never told Brannan he was under arrest or not free to go and in fact informed him no charges had been made against him. The mere fact that Mitchell approached Brannan to ask him questions does not bring Miranda into play. Under these circumstances, a reasonable person would have felt free to decline the officer’s request for an interview. Conner v. State, 205 Ga. App. 564, 566 (3) (422 SE2d 872) (1992).

(b) Telephone Interview. Approximately two weeks after the accident, Officer Mitchell and Brannan spoke by phone. She asked him several questions about his purchase of the rifle and set up an appointment for him to come speak with her at the station. Brannan did not show up for that appointment. The facts of this interview create no issue of custodial interrogation, and the trial court erred in granting Brannan’s motion to exclude this statement. Id.

(c) Station Interview. After losing contact with Brannan for several weeks, Officer Mitchell again contacted Brannan and asked him to come speak with her at the station at his convenience. He came alone, and they met in the station conference room. She explained she was still investigating the case but that he was under no obligation to speak to her and was free to leave. He indicated he understood. After the interview, Mitchell informed Brannan she would prepare a report and submit it to the Solicitor’s office. He then left.

“Miranda warnings are not required simply because questioning takes place in a building containing jail cells. [Cits.]” Hardeman, 252 Ga. at 288 (1). Brannan came to the station voluntarily. He was informed he did not have to speak to the officer and was told he could leave. The trial court erred in excluding this statement. This case presents a clearer example of a non-custodial interview than the facts of State v. Walker, 204 Ga. App. 1 (418 SE2d 384) (1992), in which we found the trial court erred in excluding from evidence an interview made under similar circumstances. Unlike the authorities in Walker, Officer Mitchell specifically told Brannan he was free to leave and was not required to answer any questions. See id. at 3 (Cooper, J., dissenting).

The trial court’s ruling appears based in part on the fact that Officer Mitchell believed Brannan had committed a crime. Whether she secretly intended to charge him with a crime is immaterial to a determination of whether he was in custody, except to the extent she communicated her intent to him. Stansbury v. California, 511 U. S. _ (114 SC 1526, 1529-1530, 128 LE2d 293) (1994). Here, although Officer Mitchell suspected Brannan’s actions constituted a crime, she repeatedly told him he was not charged with any offense. “[T]he proper inquiry is whether the individual was formally arrested or restrained to the degree associated with a formal arrest, not whether the police has probable cause to arrest. [Cit.]” Hodges v. State, 265 Ga. 870, 872 (2) (463 SE2d 16) (1995); compare Shy v. State, 234 Ga. 816, 821 (218 SE2d 599) (1975) (based on federal case law which appears to contradict Stansbury).

Decided July 30, 1996.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Allison L. Thatcher, Assistant Solicitors, for appellant.

James C. Watkins, for appellee.

Judgment reversed.

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

       On appeal, the State takes exception only to the court’s suppression of the rifle.


text:
    A96A1137.
    REED v. THE STATE.
    (474 SE2d 264)
   Beasley, Chief Judge.

Reed’s first trial for trafficking in cocaine (OCGA § 16-13-31) ended in a mistrial. A jury convicted him at the retrial, and he was sentenced to life imprisonment.

The evidence showed that special drug agent Malcom received an anonymous call advising him that Reed was at a certain location, wearing described clothing and in possession of a large quantity of crack cocaine. Malcom relayed this information to police officer Miller, who investigated.

When Miller arrived at the location, he saw Reed and another person exit a convenience store. As Reed passed a dumpster beside the store, Miller saw him discard a wad of plastic or cellophane. When Miller approached Reed and his companion and motioned for them to come to him, they fled. Miller and another officer chased and arrested them. Miller found a large sum of money in Reed’s pocket and 29 grams of cocaine of a purity of 83 percent in many small yellow ziplock bags inside the discarded clear plastic bag.

1. Reed enumerates his retrial as error, invoking the former jeopardy provisions of Georgia law.

Prior to Reed’s first trial, he moved in limine to prohibit or limit testimony regarding the anonymous call to the police. At trial, the prosecutor represented to the court that Malcom had been told by the caller that Reed was engaged in the sale of crack cocaine. Malcom then informed the court that he had been told only that Reed was in possession of the cocaine. The court ruled that the information provided by the anonymous caller to the police was admissible to explain their conduct but not to establish the truth of the matters asserted by the caller. The court warned the prosecutor that a mistrial would be granted if he misrepresented what the caller had said, and the prosecutor was advised by the court to take a “minimal approach and be quite clear when you’re explaining to the jury that it is only to explain conduct at the time.”

During the prosecutor’s opening statement, he described what Lt. Miller found in the plastic bag “just as the caller had told what the evidence was expected to show regarding that call, Lt. Malcom. . . .” Reed moved for a mistrial, arguing that this was an assertion of proof for the truth of the caller’s message. After some discussion of the parameters of allowable recitation of what the evidence was expected to show regarding that call, the court denied the motion but admonished the prosecutor and gave curative instructions to the jury, explaining that the opening statements are not evidence and also that what the anonymous caller said could be considered only to explain the officer’s conduct and not for the truth of the message.

While being questioned by the prosecutor, Miller later testified that Malcom had told him the anonymous caller had said Reed was selling drugs. Reed again moved for a mistrial, which the court initially granted. Based in part on the strength of the evidence against Reed, the court reconsidered and proceeded with the trial but later granted a mistrial when the prosecutor, in examining a defense witness, referred to a statement made by Reed while in police custody which had not been provided to the defense as required by former OCGA § 17-7-210.

Reed subsequently filed a “motion to bar retrial based on double jeopardy.” The court denied it upon finding that the prosecuting attorney’s actions were negligent rather than intentional and were not intended to provoke the defendant into moving for a mistrial.

“[T]he double jeopardy proscription of the LT. S. and Georgia Constitutions generally does not prevent reprosecution of a defendant where a mistrial occurs on the motion of, or with the consent of, the defendant. [Cits.]” Studyvent v. State, 153 Ga. App. 161 (264 SE2d 695) (1980). The double jeopardy clause of the Georgia Constitution contains an express exception “in case of mistrial.” Art. I, Sec. I, Par. XVIII, Ga. Const, of 1983. The double jeopardy clause of the Fifth Amendment has been interpreted by the United States Supreme Court as incorporating such an exception. See Studyvent and cits.

In Studyvent, this Court, in reliance upon then-extant United States Supreme Court decisions, held that a defendant’s retrial is barred when mistrial is granted on the grounds of prosecutorial overreaching and such was motivated by the prosecutor’s bad faith or with intent to harass or prejudice the defendant. See Morris v. State, 180 Ga. App. 896 (350 SE2d 851) (1986).

However, in Oregon v. Kennedy, 456 U. S. 667, 676 (102 SC 2083, 72 LE2d 416) (1982), “[t]he Court concluded that: ‘Only where the governmental conduct in question is intended to “goad” the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.’ ” State v. Whitehead, 184 Ga. App. 162, 163 (361 SE2d 41) (1987). In Kennedy, the Court “reasoned that ‘bad faith conduct’ or ‘harassment’ are not decisive factors to prevent retrial even though they might warrant a declaration of mistrial and that ‘overreaching’ is too broad a test.” Whitehead, supra.

In Williams v. State, 258 Ga. 305, 310 (1) (369 SE2d 232) (1988), the Georgia Supreme Court adopted the decision in Kennedy as establishing the applicable double jeopardy standard “under both state and federal criminal law.” Williams, 258 Ga. at 311; see also Beck v. State, 261 Ga. 826 (412 SE2d 530) (1992). We are not at liberty to construe our law more liberally. Art. VI, Sec. VI, Par. VI, Ga. Const, of 1983. Morris is disapproved to the extent that it holds otherwise. The applicable standard is the intent of the prosecutor in the misconduct, and such intent is a fact question for the court to resolve. Whitehead, supra. Since the evidence supports the trial court’s finding that the prosecutor did not intend to goad Reed into moving for mistrial, denial of the motion to bar retrial was not legal error.

2. Reed enumerates as error the allowance of hearsay testimony regarding the content of the anonymous call.

At the beginning of retrial, Reed renewed his motion in limine regarding the anonymous call. The court denied it but agreed to instruct the jury to consider such evidence only as explaining police conduct and not for the truth of the matters asserted. The admission of the evidence, with this caveat, did not constitute error.

“ ‘Under OCGA § 24-3-2, conversations had in the course of a legal investigation may be admitted as original evidence to explain the conduct of a law enforcement official provided the conduct involves a matter relevant to the issue on trial. (Cit.)’ [Cits.] . . . [T]he facts and circumstances surrounding a defendant’s arrest are relevant and admissible. . . . [Cits.] While the statement of the out-of-court declarant would not have been admissible as evidence of [defendant’s] guilt of the offense charged, it was nevertheless relevant and admissible to establish the events leading to [his] arrest. . . . [Cit.]” Thompson v. State, 210 Ga. App. 655, 657 (2) (436 SE2d 799) (1993).

Decided July 30, 1996.

J. Ellis Millsaps, for appellant.

Alan A. Cook, District Attorney, William K. Wynne, Jr., Assistant District Attorney, for appellee.

3. The next enumeration of error is the court’s permitting a State’s witness to comment on the invocation of his right to remain silent.

Malcom testified, in response to State examination, that Reed initially refused to make any statement but then said the money found on him at the time of his arrest had been given to him by a named individual. Reed moved for a mistrial, contending the witness had made an impermissible comment on his refusal to make a statement to the police. The prosecutor argued that the defendant had not been prejudiced because the refusal had been shown by his own testimony. Shortly thereafter, Reed withdrew his objection and thus failed to preserve this enumeration for appeal. Wilburn v. State, 199 Ga. App. 667, 668 (2) (405 SE2d 889) (1991).

4. Reed cites the court’s rejection of his requests to charge the jury on abandonment of a controlled substance (OCGA § 16-13-3) and possession of cocaine (OCGA § 16-13-30) as lesser included offenses of trafficking in cocaine.

As in Parham v. State, 218 Ga. App. 42, 44 (3) (460 SE2d 78) (1995), “ ‘the evidence shows either the commission of the completed offense as charged, or the commission of no offense, [so] the trial court is not required to charge the jury on a lesser included offense. [Cits.]’ [Cits.]”

5. Reed complains of the court’s disallowance of his argument that he may have possessed less than 28 grams of cocaine. During closing argument, defense counsel urged that the jury might consider as a reasonable hypothesis that at least one-half of the cocaine belonged to Reed’s companion, in which case Reed did not possess 28 grams. The court did not err, because there was no evidence that Reed had been in possession of only part of the cocaine with his companion in possession of the remainder.

Judgment affirmed.

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


text:
    A96A1159.
    JEFFERSON CONSULTANTS, INC. et al. v. JEFFRIES.
    (474 SE2d 262)
   Beasley, Chief Judge.

Dr. Jeffries brought this action against Jefferson Consultants, Inc., Koons, and Shimshick, seeking actual and punitive damages for professional negligence and breach of contract. The jury awarded actual damages against Jefferson and Shimshick in the amount of $7,500 and against Jefferson and Koons in the amount of $110,163.53, but no punitive damages. Defendants appeal the final judgment.

Jeffries retained the services of the company and two of its principals, Koons and Shimshick, to perform consulting engineering services in connection with his purchase of property and construction of a medical office building. Shimshick, a registered land surveyor, prepared a boundary and topographic survey for Jeffries prior to his acquisition of the property. Among other things, this survey showed existing water lines. Koons, a professional engineer, prepared a drainage plan, hydrological study, and retention pond design. The complaint alleged an erroneous identification of the existing water line by Shimshick and a faulty design of the drainage system by Koons.

Plaintiff presented evidence that Shimshick’s survey showed the city water line as being at one location whereas it was actually at another, and this required an extension of the water line for the project at additional expense. Other evidence presented by plaintiff showed that the actual amount of water draining onto the property from off the site is approximately four to six times greater than the expected runoff identified in Koons’ hydrological study, and, because of resultant flooding problems, the drainage system had to be redesigned. The defense was based on evidence that the identification of the water line in Shimshick’s survey was correct and that the flooding problems were caused by a change in building elevation unapproved by Koons.

1. Defendants challenge the jury instruction on the tort of negligent construction.

The court charged the jury “that in this case the plaintiff claims that the defendants acted negligently in their design and preparation of the plans and drawings for the plaintiff’s medical building. This claim is generally referred to as negligent construction.” Defendants objected to this charge on the ground that there was no evidence they participated in any construction. Our review is limited to this ground of objection. Revbar Corp. v. Marthaler, 180 Ga. App. 559, 560 (1) (349 SE2d 795) (1986).

Unquestionably, an action may be brought against professional engineers and land surveyors for negligence in their design and preparation of plans and drawings used in the construction of a building and other improvements to property. See Mullis v. Southern Co. Svcs., 250 Ga. 90 (296 SE2d 579) (1982); Southeast Consultants v. O’Pry, 199 Ga. App. 125 (404 SE2d 299) (1991). It is undisputed that defendants prepared such plans and drawings. Even if the court mistakenly denominated the claim as one of negligent construction rather than survey and design, no harm appears. The court described what acts expressly were allegedly negligent, which the jury had to decide thus pinpointing the issues. Moreover, there is evidence that defendants did participate in the construction process by consulting with the contractor while the work was in progress and determining such things as the building site and the retention pond site. Their employee was project manager for the defendants. The enumeration fails.

Decided July 30, 1996.

Wood, Odum & Edge, Gus L. Wood III, for appellants.

Rodney L. Eason, for appellee.

2. Defendants also challenge the jury instruction on the issue of punitive damages.

The jury verdict in favor of defendants on plaintiffs claim for punitive damages rendered any error harmless. Ga. Power Co. v. Hinson, 179 Ga. App. 263, 266 (2) (346 SE2d 73) (1986).

3. Plaintiff has filed a motion for imposition of ten percent damages for frivolous appeal pursuant to OCGA § 5-6-6, which is granted. The trial court shall add this amount to the judgment on a remittitur.

Judgment affirmed.

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


text:
    A96A0828.
    HODGES v. THE STATE.
    (474 SE2d 218)
   Judge Harold R. Banke.

McKinley Hodges appeals his conviction and sentence on charges of robbery by force (OCGA § 16-8-40 (a) (1)) and entering an auto with intent to commit theft (OCGA § 16-8-18). Held:

1. In his first three enumerations of error, Hodges claims the State produced insufficient evidence to support his conviction for robbery by force. We apply the standard set forth in Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979) and view the evidence with all reasonable inferences made, and all issues of weight and credibility resolved, in favor of the verdict. Patterson v. State, 181 Ga. App. 68, 69 (2) (351 SE2d 503) (1986).

Hodges and other men and women were gathered for a party at his apartment. Hodges called and ordered pizza delivery. When the pizza arrived, Hodges and several others were standing in a group in front of the apartment. Hodges’ uncle grabbed the delivery man and hit him while Hodges’ brother and another young man took money and the pizza from the victim’s car. As the victim was running away, Hodges drove off in the victim’s car. Hodges’ argument that he did not participate in a robbery by force because the victim had “abandoned” his car is completely without merit. See Maddox v. State, 174 Ga. App. 728 (1) (330 SE2d 911) (1985) (defendant took items after frightening away victim). Based on Hodges’ actions before, during, and after this incident, the jury was entitled to find him a party to the crime. Hull v. State, 265 Ga. 757, 758-759 (1) (462 SE2d 596) (1995).

2. In his fourth, fifth, and sixth enumerations of error, Hodges similarly contends the State did not prove beyond a reasonable doubt that he was a party to the crime of entering an auto. See Patterson, supra. After Hodges drove off in the victim’s car, police found it parked in the neighborhood but left it there. An eyewitness, who had reported the car to police, later saw a man enter the car and remove something. That man walked to the corner and handed a “box-type” item to the driver of another vehicle, got in the vehicle, and drove away. She reported the incident to police, who within minutes stopped Hodges and his uncle in a car matching her description. Hodges was driving, and under his uncle’s passenger seat police found the victim’s car stereo, which he testified had been removed from his car. This evidence allowed the jury to infer that Hodges was a party to this crime and sufficiently supports the conviction. Hull, supra.

3. Hodges’ contention that the court committed reversible error by failing to give an unrequested charge on circumstantial evidence has no merit. Eyewitness testimony provided direct evidence that Hodges committed acts making him a party to each of the charged crimes. Yarn v. State, 265 Ga. 787, 791 (2) (462 SE2d 359) (1995). Because the State’s case was not based entirely on circumstantial evidence, the failure to give this unrequested charge is not error. Stubbs v. State, 265 Ga. 883, 884 (1) (463 SE2d 686) (1995).

4. Finally, Hodges claims the trial court erred by allowing a rebuttal witness to testify even though her name was not on the list of witnesses the State supplied to the defense. Because this case was indicted before January 1, 1995, former OCGA § 17-7-110 applies. “The exclusion of testimony from a witness whose name has not been provided to the defense by the State pursuant to OCGA § 17-7-110 does not apply to rebuttal witnesses. [Cit.]” Leatherwood v. State, 212 Ga. App. 342, 343-344 (3) (441 SE2d 813) (1994). To the extent this witness’s testimony constituted an integral part of the State’s case and not mere rebuttal, we note that defense counsel admitted his knowledge of this witness through her testimony in the separate trial of Hodges’ co-defendant. Furthermore, defense counsel made no motion for continuance and no effort to interview the witness. Under these circumstances, we find no error. Bleckley v. State, 214 Ga. App. 860, 861 (3) (449 SE2d 351) (1994).

Decided July 10, 1996

Reconsideration dismissed July 31, 1996.

James W. Smith, for appellant.

Harry N. Gordon, District Attorney, James D. Love, Assistant District Attorney, for appellee.

Judgment affirmed.

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