text:
    76438.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. YANCEY.
    (371 SE2d 883)
   Deen, Presiding Judge.

On August 27, 1985, James Yancey was injured when the tractor-trailer he was driving was forced off the road to avoid striking another vehicle that suddenly stopped in front of him. The other vehicle immediately left the scene. On May 9, 1986, Yancey commenced this action against the unknown motorist, and served his own insurer, State Farm Mutual Automobile Insurance Company (State Farm), as a carrier of uninsured motorist coverage. Yancey also served Michigan Mutual Insurance Company (Michigan Mutual), which had issued a policy to Yancey’s employer, as an uninsured motorist insurer.

Michigan Mutual answered the complaint on behalf of Jane Doe, the unknown uninsured motorist. Neither State Farm nor Michigan Mutual answered the complaint in their own names. On September 18, 1986, this answer was withdrawn; on the following day, in consideration of his receipt of $7,000, Yancey released Michigan Mutual of any liability as uninsured motorist carrier. On September 25, 1986, Yancey filed a motion for judgment on the pleadings, on the grounds that no answer to his complaint was on record and the time for filing an answer had expired. On October 3, 1986, the trial court entered judgment on the pleadings for Yancey on the issue of liability. On November 17, 1986, following a trial on the issue of damages, a jury awarded Yancey $250,000; based on that verdict, the trial court immediately entered judgment for Yancey against State Farm in the amount of $45,000, representing the coverage limits of the three policies State Farm had issued to Yancey. State Farm was not notified of the trial and did not participate in it.

State Farm subsequently moved “to vacate and set aside judgment and, in the alternative, for new trial in conjunction with a motion to open default.” The trial court denied the motions on November 18, 1987, and this direct appeal followed. Held:

1. State Farm contends that its motions should have been granted because (1) it was never properly served with the complaint or any other pleadings; (2) the simultaneous entry of judgment against both the uninsured tortfeasor and State Farm was illegal; (3) the issue of insurance coverage was improperly introduced to the jury; (4) the case was improperly tried before a state court jury serving in the superior court; (5) the evidence did not support the jury’s verdict; and (6) the appellee violated Rule 15 of the Uniform Superior Court Rules by failing to file a certificate of default prior to obtaining a final judgment. This court may not address some of the above issues because State Farm has not followed the appropriate appellate procedure.

A. Issues (1) and (6) concern nonamendable defects which appear, if at all, on the face of the record or pleadings, and thus would be the subject matter of a motion to set aside under OCGA § 9-11-60 (d). Appeals from orders denying such motions to set aside must follow the discretionary appeal procedures pursuant to OCGA § 5-6-35 (a) (8). State Farm failed to do so, and this appeal, with regard to these issues, must be dismissed. Radford v. IPD Printing & Distrib., 184 Ga. App. 64 (360 SE2d 656) (1987).

B. Regarding issue (2), the appeal is untimely. In this case, State Farm’s attack on the allegedly illegal judgment would have to be the subject matter of its motion for new trial. However, “ ‘ “[objections which go to the judgment only, and do not extend to the verdict, cannot properly be made grounds of a motion for new trial. A motion for new trial seeks to set aside the verdict. No new trial is necessary to correct a judgment or decree. If a judgment or decree is erroneous or illegal, direct exception should be taken.to it at the proper time.’” [Cit.]” Sands v. Lamar Properties, 159 Ga. App. 718, 719 (285 SE2d 24) (1981). Since the notice of appeal in this case was filed on November 24, 1987, over one year past the date of the judgment, the appeal of this issue was untimely.

2. Jurors actually summoned for service in the state court were seated for service in the superior court in this case. State Farm contends that although OCGA § 15-12-130 allows for jurors selected for service in the superior court to serve in another court with concurrent jurisdiction, no statutory provision exists for jurors selected for service in the state court to serve in the superior court. State Farm, however, demonstrates no harm resulting from the use of state court jurors in this’case, and we find none. The qualifications for service as a juror on the State Court of Tift County are the same as for service on the superior court. Ga. Laws. 1971, p. 2477.

3. During voir dire, the trial court asked if any of the prospective jurors were connected in any way with State Farm, and counsel for the appellee asked if any jurors worked for State Farm. State Farm contends that allowing counsel to ask whether any of the prospective jurors worked for State Farm improperly emphasized the fact of insurance coverage, thus requiring reversal of the verdict. We find no abuse of discretion in allowing counsel for the appellee to ask this one question. See Parsons v. Harrison, 133 Ga. App. 280 (1) (211 SE2d 128) (1974).

Decided July 6, 1988

Rehearing denied July 22, 1988

John S. Sims, Jr., for appellant.

Craig A. Webster, for appellee.

4. State Farm also contends that the evidence does not support the verdict, because there was no corroborating witness as required by OCGA § 33-7-11 (b) (2). However, one witness testified that she saw the appellee swerve into the other lane to avoid hitting what she described as an “object big enough to be a car”; this witness later stated simply that she had observed the appellee’s predicament to have been “either hit the car or come over into my lane.” This testimony sufficiently corroborated the appellee’s testimony that he had to swerve into the other lane to avoid colliding with the Jane Doe vehicle that pulled into his lane and stopped suddenly.

Appeal affirmed in part and dismissed in part.

Sognier, J., concurs. Carley, J., concurs in Divisions 1A, 2, 3 and 4 and in judgment.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    76605.
    DACOSTA v. ALLSTATE INSURANCE COMPANY.
    (372 SE2d 7)
   Banke, Presiding Judge.

The appellant sustained personal injuries in a collision involving an uninsured motorist while riding as a guest passenger in an automobile owned by Coats and being operated by Coats’ son. The collision occurred in Georgia; however, Coats was a Tennessee resident at the time, and her vehicle was insured under a policy of automobile insurance issued by the appellee, Allstate Insurance Company in Tennessee. That policy contained an uninsured motorist endorsement specifying that “[a]ny amount payable under the terms of this coverage because of bodily injury . . . sustained in an accident by a person who is an insured under this coverage shall be reduced by . . . the amount paid and the present value of all amounts payable on account of such bodily injury under any workmen’s compensation law. . . .”

Because the appellant had been in the service of a Georgia employer when the accident occurred, he received compensation for his injuries pursuant to the Georgia Workers’ Compensation Act, OCGA § 34-9-1 et seq. He subsequently filed the present action seeking to recover damages for the alleged negligence of the uninsured motorist in causing the collision. Allstate filed defensive pleadings in its own name after being served as the uninsured motorist carrier pursuant to OCGA § 33-7-11 (d), and it thereafter moved for partial summary judgment on the issue of whether it was entitled to the benefit of a Tennessee law allowing an insurer’s liability for uninsured motorist benefits to be offset by any collateral benefits received by the injured person. See Tenn. Code Ann. § 56-7-1205. The appellant responded that the Georgia uninsured motorist statute, which does not provide for any such offset, was controlling. The trial court ruled in favor of Allstate on the issue, and this appeal followed. Held:

The policy contains no suggestion that the law of any state other than Tennessee is to govern its construction. Georgia follows the doctrine of lex loci contractus. General Tel. Co. of the Southeast v. Trimm, 252 Ga. 95 (311 SE2d 460) (1984). Under this doctrine “ ‘[w]here a pleaded contract not only is executed in a foreign State, but contains nothing to indicate by the place of performance or otherwise that it was intended to be construed as a Georgia contract, it will be treated as a contract of the foreign State, and governed by its laws. . . .’ [Contracts made and performed in another state will be enforced unless such state’s laws are contrary to the public policy of the enforcing state. ... ‘A contract should not be held unenforceable as being in contravention of public policy except in cases free from substantial doubt where the prejudice to the public interest clearly appears.’ [Cit.]” Terry v. Mays, 161 Ga. App. 328, 329 (291 SE2d 44) (1982). See also Nationwide Gen. Ins. v. Parnham, 182 Ga. App. 823 (4) (357 SE2d 139) (1987).

We reject the appellant’s contention that the public policy of this state is contravened by allowing Allstate to offset the workers’ compensation benefits received by the appellant against the amount of uninsured motorist benefits which would otherwise be due him under the policy. The mere fact that the two states have different laws in this regard does not mean that the Tennessee law cannot be enforced. See Terry v. Mays, supra. Accord Howard v. Doe, 174 Ga. App. 415 (330 SE2d 370) (1985); Tenn. Farmers Mut. Ins. Co. v. Wheeler, 178 Ga. App. 73 (1) (341 SE2d 898) (1986). It has been held that the Legislature’s purpose in enacting the Georgia uninsured motorist statute was “to protect the insured as to his actual loss.” State Farm &c. Ins. Co. v. Murphy, 226 Ga. 710, 714 (177 SE2d 257) (1970). Because enforcement of the Tennessee statute will not operate to frustrate that policy, we hold that the trial court did not err in granting the appellee’s motion for partial summary judgment. It necessarily follows that the trial court did not err in failing to grant summary judgment to the appellant on this issue.

Judgment affirmed.

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

Decided July 11, 1988

Rehearing denied July 22, 1988

Thomas E. Brennan, Gene A. Major, Jonathan M. Engram, for appellee.


text:
    76739. 76740.
    HULSTZMAN et al. v. STATE FARM FIRE & CASUALTY COMPANY. TIMMONS et al. v. STATE FARM FIRE & CASUALTY COMPANY.
    (372 SE2d 9)
   Banke, Presiding Judge.

The appellee, State Farm Fire & Casualty Company, filed this declaratory judgment action seeking to ascertain its obligations under a “Rental Dwelling Policy” covering certain residential premises occupied by appellants Fannie Lou Hulstzman and Vannie O. Floyd. The policy was issued to the owners of the premises, James and Margaret Christie, who are not parties to the present litigation. While the coverage was in force, an acquaintance of Ms. Hulstzman and Mr. Floyd allegedly caused an automobile collision after being served alcoholic beverages on the premises as their guest. Appellants Carolyn and Edgar Timmons and their minor child, Frances, subsequently filed suit against Hulstzman, Floyd, and certain other individuals seeking to recover for injuries they had allegedly sustained in this collision. The Christies were at one time named as defendants in that action, but all claims against them were subsequently dismissed.

State Farm brought the present declaratory judgment action being notified that all of the parties to the Timmonses’ action were looking to the Christies’ rental dwelling policy to satisfy any judgment the Timmonses might recover, and after receiving a demand from Hulstzman and Floyd to be provided with a legal defense in that action. These appeals are from the grant of State Farm’s motion for summary judgment in the declaratory judgment action. Held,-.

1. The Christies’ “Rental Dwelling Policy” extends liability coverage as follows: “COVERAGE L — BUSINESS LIABILITY. If a claim is made or a suit is brought against any insured for damages because of bodily injury, personal injury, or property damage to which the coverage applies and which arises from the ownership, maintenance, or use of the insured premises, we will: a. Pay up to our limit of liability for which the insured is legally liable; and b. Provide a defense at our expense by counsel of our choice. . . .” (Emphasis from original.)

The policy definition of “insured” encompasses persons named in the policy declarations, their employees while acting in the scope of their employment, and any person or organization while acting as real estate manager for the named insured. Clearly, none of the appellants in this case can, by any stretch of the imagination, be fit into any of these categories. It follows that State Farm has no obligation to them under the terms of the policy. “Where the language fixing the extent of liability of an insurer is unambiguous and but one reasonable construction is possible, the court must expound the contract as made.” Cotton States Mut. Ins. Co. v. Bowden, 136 Ga. App. 499, 500 (221 SE2d 832) (1975).

2. The appellants contend that to “exclude” them from coverage under the policy would be violative of “[t]he public policy of this state ... to provide indemnification for innocent parties where they have been exposed to unreasonable risks of harm.” Generally speaking, “[a]n insurance company may fix the terms of its policies as it wishes, provided they are not contrary to law, and it may insure against certain risks and exclude others. ‘If the terms of the contract are clear and express, the courts cannot extend or enlarge the contract by implication or construction so as to embrace an object or limitation distinct from that originally contemplated and not included in the express provisions.’ (Cit.)” Fokes v. Interstate &c. Ins. Co., 59 Ga. App. 680, 681 (2 SE2d 170) (1939).

In those cases where restrictions or limitations have been imposed by the courts on the right of an insurer to define and limit the risk or liability assumed under the terms of a policy, it has been on the basis of mandatory statutory provisions specifying the minimum coverage to be provided. See, e.g., Smith v. Southeastern Fidelity Ins. Co., 258 Ga. 15 (1) (365 SE2d 105) (1988) (involving “no-fault” motor vehicle accident coverage); Bass v. State Farm Mut. Auto. Ins. Co., 128 Ga. App. 285, 287-288 (196 SE2d 485) (1973) (involving uninsured motorist coverage). We are aware of no statute which requires a landlord to obtain insurance in any amount against his own liability for injuries resulting from the use of the rented premises, much less to insure against the liability of others in this regard. Consequently, we find the appellants’ public policy argument to be without merit.

3. Being unable to discern any reasonable ground upon which the appellants might have anticipated the reversal of the trial court’s judgment, we assess a $500 penalty against the appellants pursuant to Rule 26 (b) of this court for pursuing a frivolous appeal. The trial court is hereby directed to enter judgment against the appellants in such amount, jointly and severally, upon the return of the remittitur in the case.

Judgment affirmed with damages.

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

Decided July 13, 1988

Rehearing denied July 22, 1988.

Brinson Williams, Jr., Clarence L. Martin, for appellants.

Martin Kent, for appellee.


author: Benham, Judge.

text:
    76213.
    KURTZ v. WILLIAMS.
    (371 SE2d 878)
   Benham, Judge.

Appellant Kurtz is the superintendent of Central State Hospital and appellee Williams is an employee there. Williams filed suit against Kurtz, alleging that Kurtz had libeled and slandered him by saying that Williams, a married man, was having an extramarital affair with another hospital employee in his office during office hours. The trial court entered judgment on the jury award to appellee of $1.00 in general damages and $10,000 in exemplary damages.

1. Contrary to appellant’s assertion, appellee’s suit against appellant was not barred by the doctrine of official immunity. The purchase of insurance for department employees under OCGA § 45-9-1 after passage of Art, I, Sec. II, Par. IX, of the 1983 Georgia Constitution waived appellant’s official immunity to the extent of the insurance coverage. Martin v. Ga. Dept. of Public Safety, 257 Ga. 300 (2) (357 SE2d 569) (1987). See also Cooper v. Swofford, 258 Ga. 143 (368 SE2d 518) (1988).

2. Appellant contends the trial court erroneously denied his motion for summary judgment and motion to reconsider and vacate the denial of summary judgment. “ ‘ “After verdict and judgment, it is too late to review a judgment denying a summary judgment, for that judgment becomes moot when the court reviews the evidence upon the trial of the case.” [Cit.] ’ Thus, appellant’s contentions concerning the denial of [his] motion for summary judgment [and the refusal to reconsider that decision] will not be pursued further.” Hardaway Constructors v. Browning, 176 Ga. App. 530 (2) (336 SE2d 579) (1985).

3. Asserting there was no publication of the slander, appellant contends the trial court erred in denying his motion for directed verdict.

Appellant testified that he had received an anonymous, handwritten note informing him that appellee and a female employee were having an affair while on the job. Appellant informed the hospital’s deputy superintendent of the contents of the note and asked the chief of appellee’s division to look into the matter. At a meeting called to discuss the possible transfer of certain personnel, including appellee, from their unit because of problems therein, appellant informed those in attendance (the deputy superintendent, the personnel director, and the chief of appellee’s division) of the contents of the anonymous note.

“Slander or oral defamation consists in: (1) Imputing to another a crime punishable by law. . . .” OCGA § 51-5-4 (a) (1). “Publication is indispensable to recover for slander. [Cit.]” Walter v. Davidson, 214 Ga. 187, 190 (104 SE2d 113) (1958). Generally, publication is accomplished by communication of the slander to anyone other than the person slandered. Pavlovski v. Thornton, 89 Ga. 829 (2) (15 SE 822) (1891). Over the years, however, an exception to the broad definition of publication has evolved: when the communication is intracorporate, or between members of unincorporated groups or associations, and is heard by one who, because of his/her duty or authority has reason to receive the information, there is no publication of the allegedly slanderous material, and without publication, there is no cause of action for slander. Walter v. Davidson, supra; Madden-Lee v. Day’s Inns of Amer., 184 Ga. App. 485 (361 SE2d 714) (1987); Carter v. Willowrun Condominium Assn., 179 Ga. App. 257 (1) (345 SE2d 924) (1986); Griggs v. K-Mart Corp., 175 Ga. App. 726 (334 SE2d 341) (1985); Monahan v. Sims, 163 Ga. App. 354 (294 SE2d 548) (1982); Sigmon v. Womack, 158 Ga. App. 47 (279 SE2d 254) (1981); Davis v. Hosp. Auth. of Fulton County, 154 Ga. App. 654 (3) (269 SE2d 867) (1980); Jackson v. Douglas County Elec. &c. Corp., 150 Ga. App. 523 (1) (258 SE2d 152) (1979); King v. Masson, 148 Ga. App. 229 (1A) (251 SE2d 107) (1978); Melton v. Bow, 145 Ga. App. 272 (2) (243 SE2d 590) (1978), aff'd 241 Ga. 629 (247 SE2d 100) (1978); Neal v. McCall, 134 Ga. App. 680 (4) (215 SE2d 537) (1975); LuAllen v. Home Mission Bd., 125 Ga. App. 456 (188 SE2d 138) (1972); King v. Schaeffer, 115 Ga. App. 344 (5) (154 SE2d 819) (1967); Garrett v. Lockheed Aircraft Corp., 98 Ga. App. 443 (106 SE2d 333) (1958); Beck v. Oden, 64 Ga. App. 407 (13 SE2d 468) (1941); Central of Ga. R. Co. v. Jones, 18 Ga. App. 414 (1) (89 SE 429) (1916). The legal fiction that no publication has occurred when the above criteria are met is based on the sentiment that “[statements by either in the hearing of the other concerning such matters are the legal equivalent of speaking only to one’s self. . . .” Walter v. Davidson, supra, Division 2.

In the case at bar, those who heard the slander from appellant were within the administration of the hospital and had a duty or authority that gave them reason to receive the information: the hospital’s deputy superintendent was responsible for everything for which the superintendent was responsible inasmuch as the two men worked as a team in managing the hospital; it was appropriate and routine for the division chief to attend a meeting at which problems in a unit within his division were to be discussed; and the personnel director had a duty to advise the superintendent and deputy superintendent with regard to the implementation of personnel matters.

Decided July 1, 1988

Rehearing denied July 25, 1988

Michael J. Bowers, Attorney General, H. Perry Michael, Senior Assistant Attorney General, William C. Joy, Senior Assistant Attorney General, Patricia Downing, Assistant Attorney General, John A. Draughon, for appellant.

George L. Dickens, Jr., for appellee.

Contrary to appellee’s assertion, the exception to the publication rule is not a conditional defense destroyed by proof of malice but, rather, an element of the tort of slander or libel. Whether the communication was made maliciously and with knowledge of falsity is immaterial when there has been no publication, for without publication there is no libel or slander. King v. Masson, supra; LuAllen v. Home Mission Bd., supra; Beck v. Oden, supra. See also Griggs v. K-Mart Corp., supra; Ray v. Henco Electronics, 156 Ga. App. 394 (2) (274 SE2d 602) (1980). The “qualified privilege” mentioned in Madden-Lee v. Day’s Inns, supra at 486, refers to OCGA § 51-5-7. See also Land v. Delta Airlines, 147 Ga. App. 738 (2) (250 SE2d 188) (1978). That conditional privilege is lost upon proof of malice. OCGA § 51-5-9. However, before a plaintiff reaches the questions of conditional privilege and loss thereof, the plaintiff must prove the elements of the tort, including publication. If a personnel report is written by a supervisor who has the duty to write the report and it is sent to the keeper of personnel records, there is no publication of that report, and any allegedly defamatory material contained therein, no matter how malicious, is not actionable. However, if the same malicious report is sent to others who do not have a duty or authorization to receive it, the report is published, and the plaintiff, having proved the elements of the tort, need only establish that the author acted maliciously in writing and sending the report in order to establish a right to damages.

In the case at bar, there was no proof that the slanderous material was ever published. Therefore, the trial court erred in denying appellant’s motion for directed verdict.

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    76700.
    REAHARD v. IVESTER et al.
    (371 SE2d 905)
   McMurray, Presiding Judge.

This appeal arises from the grant of summary judgment to appellees in their suit to recover rentals alleged to be due under a lease contract. Appellant Ralph M. Reahard entered into an agreement with Mr. and Mrs. Douglas Ivester to lease an apartment for a period of 21 months, beginning on August 20, 1985. Rent was to be payable monthly in advance at a rate of $1,600 a month for five months through December 20, 1985; $1,700 a month for five months through May 20, 1986; $1,800 a month for five months through October 20, 1986; and $1,900 a month for the last six months through April 20, 1987.

A deposit of $1,500 was also required in Paragraph 5 of the lease “as security for resident’s fulfillment of the conditions of this agreement.” The deposit was to be returned within 30 days after the premises was vacated if the lease term had expired or been terminated by both parties, all money due the lessors had been paid, and the premises was not damaged.

Paragraph 7 of the lease allowed early termination “[provided resident is not in default hereunder at the time of giving notice, strictly complies with all the provisions of this paragraph, and termination is as of the last day of a calendar month ... by (a) Giving management thirty (30) days written notice; plus (b) Paying all monies due through date of termination; plus (c) Paying an amount equal to one month’s rent or one-fourth of the balance due under the rental agreement, whichever is the lesser amount, as liquidated damages; plus (d) Paying a prorated portion of the amount of $1,500.00 as expenses for repainting and cleaning based on the ratio of the number of months remaining in the initial term to the number of months originally in the initial term.”

On May 19, 1986, appellant wrote appellee Douglas Ivester advising that he planned to vacate the premises “no later than July 1st.” Appellee Ivester responded by a letter dated May 28, 1986, stating that appellant would “be required to abide by the terms of our agreement [under which] (a) The termination must be the last day of a calendar month; that will place the earliest termination date on June 30, 1986. Therefore, the rent for the last ten days of June will be 10/ 30 x $1800 [ = ] $600. ... (b) You are required to pay one month’s rent as liquidity damages at $1,800.00, the current rate . . . . (c) You are required to pay a further fee calculated as follows:

Number of months remaining (11)

Original term (21)

(.5238) x $1500.00 or $785.71

[for a total of) $3,185.71 ...”

Appellant mailed appellee Douglas Ivester a check for $600 dated June 6, 1986, accompanied by a note explaining that this represented the “first part of payments” and that he would “send more later this month.” Appellee Douglas Ivester’s reply letter thanked him for the partial payment and reminded appellant that the balance due was $2,585.71, which must be received by June 25 to effect the termination and to avoid any late charges. Appellant made no further payments, but on June 30, 1986, he wrote to inform the appellees he had moved out of the rental property, stating that before he could make a final payment on any amounts due he needed written verification that the property had been inspected and “the full amount of the $1,500 deposit will be returned on or before August 1, 1986.”

Appellee Douglas Ivester immediately responded, enclosing a copy of the lease and pointing out that the rental agreement was specific as to actions to be taken to terminate the lease. He reiterated exactly what steps appellant must take under the agreement and emphasized that because he had not yet complied, the lease continued in effect so that the amount then owed was $4,404.28 (consisting of two months rent at $1,800, late fee for July payment owed, and pro rata share of $1,500 deposit). After receiving a reply to this letter from appellant’s attorney asserting that the amount due under the terms of the lease was $2,514.28, less the security deposit of $1,500, for a total of $1,014.24, appellee Ivester turned the matter over to his own lawyers, who reaffirmed his willingness to terminate the lease if the payments required by Paragraph 7 of the agreement were timely made.

On August 1, 1986, appellant tendered a check for $1,085.71 and offered to allow appellees to retain the $1,500 security deposit in exchange for terminating the lease. Appellees rejected this offer as being $600 less than due under Paragraph 7, returned the check to appellant and continued to send monthly notices regarding the additional rent and late fees as they accrued. Appellant never tendered an amount accepted by appellees and on January 15, 1987, a new tenant leased the premises at a monthly rental of $1,700, or $200 a month less than what appellant would have then been obligated to pay.

Appellees filed the instant suit on February 6, 1987, and moved for summary judgment. Appellant answered and filed a counterclaim seeking damages and expenses of litigation for the appellees’ fraud and deceit, which appellees moved to dismiss. After considering the pleadings, arguments, evidence and theories of recovery of both parties, the trial court granted the appellees’ motion for summary judgment. Considering the motion to dismiss appellant’s counterclaim as a motion for summary judgment since matters outside the pleadings were submitted and considered, the court also entered judgment against appellant on his counterclaim. Held:

1. Appellant Reahard contends that summary judgment was improper because he was entitled to have a jury determine “the effect” of the terms set out in appellee Douglas Ivester’s letters to terminate the lease. On the contrary, however, these letters merely restated the clear and unambiguous terms of the lease agreement and correctly computed the amounts due thereunder. As with other contracts, the construction of the provisions of a lease is generally one for the court to determine as a matter of law. OCGA § 13-2-1; Peachtree on Peach-tree Investors v. Reed Drug Co., 251 Ga. 692, 694 (1) (308 SE2d 825) (1983). “Where the language of a [lease] is clear, unambiguous, and capable of only one reasonable interpretation, no construction is necessary or even permissible. [Cit.]” Stern’s Gallery of Gifts v. Corp. Property Investors, 176 Ga. App. 586, 593 (4) (337 SE2d 29) (1985). “A surrender of premises by a lessee has no legal effect until accepted by the lessor. [Cits.]” Kimber v. Towne Hills Dev. Co., 156 Ga. App. 401, 402 (1) (274 SE2d 620) (1980). Since it is apparent under the undisputed facts that appellant did not tender an amount necessary to effect a termination under Paragraph 7 of the lease, and his abandonment of the premises did not relieve his obligation to pay rent, this issue could properly be determined by summary judgment. See Stern’s Gallery of Gifts, supra, at 594 (4).

2. It follows that appellees were entitled as a matter of law to recover interest on their damages calculated pursuant to the terms of the lease from the date of filing the complaint through the date of judgment under OCGA § 13-6-13. See Braner v. Southern &c. Ins. Co., 255 Ga. 117, 119 (1) (335 SE2d 547) (1985); International Indem. Co. v. Terrell, 178 Ga. App. 570 (2) (344 SE2d 239) (1986).

3. Appellant contends that the trial court erred in granting the security deposit to the appellees without an accounting and a proper finding because there are substantial issues of fact regarding the actions of the parties. This argument is without merit. Appellant never sought an accounting, and Paragraph 5 of the lease does not require refunding the security deposit until after all sums owing under the lease have been paid in full, which has not yet been done. “The lessor merely enforced the terms of the lease, as agreed to by the lessee.” Hardin v. Macon Mall, 169 Ga. App. 793, 794 (1) (315 SE2d 4) (1984).

4. Appellant’s assertion that the trial court “apparently dismissed the counterclaim without comment,” thereby leaving genuine issues of material fact to be decided by a jury, is patently without basis. The trial court expressly ruled and entered judgment on this issue pursuant to OCGA § 9-11-56 (b), having considered matters outside the pleadings presented to it. Moreover, appellant has made no showing of what false representations or fraudulent acts were purportedly made, nor who perpetrated them or how he was harmed or suffered any damage in relying on them. There was absolutely no evidence to support his argument that “after accepting the termination, [the Ivesters] led Mr. Reahard to believe that an agreement had been reached, then kept changing the terms.”

Decided July 11, 1988

Rehearing denied July 25, 1988

Paul H. Wyatt, for appellant.

H. Quigg Fletcher III, for appellees.

Since he failed to set forth any facts sufficient to support a claim for fraud, the trial court did not err in granting summary judgment against appellant on his counterclaim. Howard v. American Business Equip., 184 Ga. App. 550, 551 (2) (362 SE2d 127) (1987). “[A] party may not withstand a motion for summary judgment merely by frantically waving a flag of fraud. . . . Moreover, it was not error to grant summary judgment in the main action even though the [appellant] had a pending counterclaim. [Cit.]” Finnegan v. Davidson Co., 184 Ga. App. 537, 538 (362 SE2d 117) (1987). We find no grounds for reversal.

5. Appellees’ motion for an assessment of damages for a frivolous appeal pursuant to OCGA § 5-6-6 is denied.

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Deen, Presiding Judge.

text:
    76834.
    GOSS v. THE STATE.
    (372 SE2d 5)
   Deen, Presiding Judge.

The appellant, Austin Goss, was convicted of burglary, aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. On appeal, he contends that the trial court erred in allowing the State to introduce evidence of prior difficulties between the victim and himself.

Around midnight on June 17, 1985, Goss and his nephew, Tommy Greenway, went to the mobile home of J. C. Smith, who owed Goss money for some previous drug purchases. Smith saw that Goss and Greenway were armed with handguns and chains, and he ran into his bedroom and fetched a rifle. Greenway forced open the door, saw Smith and fired; Smith returned fire with his rifle, and shot and killed Greenway. Goss then fired several shots through the door and departed.

The State was allowed to present Smith’s testimony that he had purchased “crack” or “speed” from Goss on previous occasions for his own use and to sell; that Goss had warned him about bad things happening to one who does not pay him; and that he owed Goss $350 at the time of the shooting. The State was also allowed to present the testimony of Smith’s wife about her multiple purchases on credit of “speed” from Goss, resulting in an outstanding balance of almost $500. Approximately 2-3 weeks before the shooting, Goss had come to their mobile home trying to collect, and ended up pushing Smith’s wife down on the bed, getting on top of her with his knees on her arms, and kissing and slobbering all over her. Goss’s efforts were interrupted when Smith’s daughter started biting him, and he left.

Decided July 7, 1988

Rehearing denied July 25, 1988

William L. Reilly, for appellant.

Roger G. Queen, District Attorney, for appellee.

Goss contends that the above testimony of both Smith and Smith’s wife should have been excluded, because its prejudicial effect far outweighed whatever probative value it may have had. “Although evidence of prior difficulties should be received with care and should not be admitted at all if there is no probative connection with the present case, Barnes v. State, 157 Ga. App. 582 (277 SE2d 916) (1981), where the evidence sheds light on the defendant’s conduct toward the victim, its relevance outweighs its prejudicial effect.” Cooper v. State, 256 Ga. 234 (347 SE2d 553) (1986). In this case, evidence of the previous drug sales between Smith and Goss that created Smith’s debt to Goss certainly helped explain Goss’s motivation or conduct on the night of the shooting. The testimony of Smith’s wife was one step further removed, but it possessed sufficient probative value to be admissible, for the same reason as Smith’s testimony.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    76861.
    SHIVERS v. THE STATE.
    (372 SE2d 2)
   Deen, Presiding Judge.

James Shivers appeals from his conviction of the sale of cocaine in violation of the Georgia Controlled Substances Act.

1. Appellant asserts error in the denial of his motion for continuance on the ground that he was not arraigned prior to his trial. The record shows that on January 4, 1988, appellant, acting in his own behalf, filed a demand for speedy trial. Arraignment was noticed on March 2 and set for March 7, 1988, on which date appellant filed a motion to dismiss the indictment or to change venue. After a hearing that same day this motion was denied. The next day the trial commenced and after a jury was selected appellant requested to dismiss his attorney. The trial court declined to do so and defense counsel at that time moved for a continuance to avoid proceeding immediately from arraignment to trial. The trial court denied a continuance on the ground that formal arraignment was waived by the filing of the demand for speedy trial and other motions.

We find no error. Where a defendant has filed motions and obtained rulings on issues of law in the case before demanding formal arraignment, by his conduct he has waived such a request. Shorter v. State, 155 Ga. App. 609 (1) (271 SE2d 741) (1980); Ferrell v. State, 149 Ga. App. 405 (3) (254 SE2d 404) (1979); Hiatt v. State, 144 Ga. App. 298 (5) (240 SE2d 894) (1977). Pretermitting any question of whether the demand for speedy trial was filed in accordance with OCGA § 17-7-170, appellant in effect entered a plea to the merits by presenting the court with an issue of law when he filed his motion to dismiss the indictment, thus waiving arraignment. Croft v. State, 180 Ga. App. 705 (350 SE2d 34) (1986).

2. Appellant’s motion to dismiss the indictment, or in the alternative to change venue, was based upon the allegation that the State had entered into a plea agreement with him which the State unilaterally revoked after acceptance; and that actions of the State through an assistant district attorney in making statements to a newspaper reporter regarding the pending case, which referred to appellant’s prior criminal record, evidenced blatant prosecutorial vindictiveness against him. However, the transcript of the motion hearing discloses that no agreement was ever reached in this regard. Negotiations were instituted on appellant’s behalf by his wife while he was incarcerated. She testified that she assumed that a disposition had been agreed upon and conveyed the recommendation to appellant, but he did not agree “completely” with the proposed resolution. She also stated that she did not and could not accept the State’s offer on behalf of her husband because her husband would have to make that determination himself, and that there was never any agreement between the State and appellant.

Even if a plea agreement had been reached, the State’s revocation of it would not give rise to dismissal of the indictment, but at most to enforcement of the plea. The district attorney’s quoted remarks in regard to appellant’s “taking advantage” of the judicial system likewise present no basis for dismissal. The trial court replaced the only two jurors who had read the newspaper article with the alternate jurors prior to trial. “ ‘Harm as well as error must be shown affirmatively by the record to authorize a reversal.’ [Cit.]” Daniels v. State, 184 Ga. App. 689, 691 (2) (362 SE2d 775) (1987).

3. Appellant contends that the State failed to prove a chain of custody of the contraband involved in the case. The evidence presented showed that an undercover officer bought a piece of “crack” cocaine from appellant, wrapped it in a piece of aluminum foil chewing gum paper and took it back to the Camden County Sheriff’s Department, where he turned it over to a deputy the same day. He told the deputy who he had bought it from and the time and place he bought it, and saw the deputy record this on an information sheet. The deputy testified that he packaged the suspected cocaine in a small zip-lock bag, filled out the contraband form with the information obtained from the undercover officer who purchased it, and stapled the form on the zip-lock bag to mail it to the state crime lab. The forensic chemist testified that he received the specimen as described by the deputy and entered a unique crime lab identification code number on it. After analyzing it and determining that it was cocaine, he enclosed the small zip-lock bag containing the contraband in a heat-sealed plastic bag to preserve it for trial.

While the burden is on the State to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution, it need not negate all possibility of tampering but must establish only “reasonable assurance” of the identity of the confiscated evidence. Kelly v. State, 182 Ga. App. 7, 9 (2) (354 SE2d 647) (1987). The chain of custody was sufficiently established here. Spead v. State, 187 Ga. App. 359 (370 SE2d 213) (1988). See Pope v. State, 256 Ga. 195 (6) (345 SE2d 831) (1986); Tyson v. State, 184 Ga. App. 309 (2) (361 SE2d 386) (1987).

4. We do not agree with appellant that a mistrial should have been granted because his character was put in issue in a response made by the undercover officer during cross-examination. It does not appear from the transcript that when the officer mentioned a previous drug buy he had made that he was implicating appellant, but on the contrary that he was referring to a sale from another person for which appellant was not being tried. This was the conclusion reached by the trial judge after the tape of the testimony was replayed, and accordingly he declined to attempt to clarify the answer to the jury because that would “raise more questions than it answers.” The court did instruct the officer “not to make any reference at all to any other charges that might involve Mr. Shivers,” and no further objection was raised by appellant. “ ‘In the absence of a demonstration that a mistrial was essential to preservation of a defendant’s right to a fair trial, it is not an abuse of discretion to deny a motion for a mistrial even where no curative instructions were given. [Cit.]’ [Cit.]” Collins v. State, 183 Ga. App. 243, 244 (3) (358 SE2d 876) (1987). We find no grounds for reversal.

Judgment affirmed.

Sognier, J., concurs. Carley, J., concurs in Divisions 2 and 3 and in the judgment.

Decided July 5, 1988

Rehearing denied July 25, 1988.

Clyde M. Urquhart, W. Bruce Maloy, John J. Ossick, Jr., for appellant.

Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.


author: Beasley, Judge. Deen, Presiding Judge, Birdsong, Chief Judge,

text:
    76099.
    FLOYD v. THE STATE.
    (372 SE2d 287)
   Beasley, Judge.

Floyd appeals his conviction of 24 counts of theft by taking (OCGA § 16-8-2) and five counts of forgery (OCGA § 16-9-1), crimes committed while he was Clerk of the State Court of Glynn County.

1. The first question on appeal is whether the trial court erred in denying defendant’s motion to dismiss the indictment. Appellant seeks not a new trial but rather an exoneration of the twenty-nine charges of which he was found guilty. In this connection, the sole ground urged below, and here, is that the district attorney’s office engaged in prosecutorial misconduct by forcing defendant’s attorney to turn over certain of his financial records during the investigation, in violation of his right to due process of law under the Fifth and Fourteenth Amendments of the United States Constitution.

Thus, as presented by appellant, we must determine whether these constitutional provisions require dismissal of the indictment and in effect, judgment of acquittal, when the state obtained records in the manner and under the circumstances of this case. We are bound to consider only those rulings of the trial court enumerated as error by appellant. OCGA § 5-6-40; Slaughter v. Linder, 122 Ga. App. 144, 148 (2) (c) (176 SE2d 450) (1970); Irvin v. Askew, 241 Ga. 561, 566 (2) (246 SE2d 682) (1978). See MacDonald v. MacDonald, 156 Ga. App. 565 (1) (275 SE2d 142) (1980). We also are confined to only those grounds raised below in connection with the error enumerated. Franklin v. State, 184 Ga. App. 396 (1) (361 SE2d 700) (1987); Brantley v. State, 177 Ga. App. 13, 14 (1) (338 SE2d 694) (1985). The function of this court is to correct errors of law committed by the lower courts and raised properly here. Fowler v. State, 155 Ga. App. 76 (2) (270 SE2d 297) (1980).

Appellant does not here challenge the denial of his motion to suppress evidence, and for good reason. Suppression of the evidence gains nothing other than another trial on the same evidence, as the evidence in question was not tendered or referred to in the trial. Appellant apparently recognized, in not appealing the suppression ruling, that even if the evidence should have been suppressed, he sustained no harm from the jury’s consideration of it because it was not introduced. Harm as well as error must be shown to authorize reversal by an appellate court. Anderson v. State, 183 Ga. App. 313 (3) (358 SE2d 888) (1987). Stewart v. State, 180 Ga. App. 266, 267 (2) (349 SE2d 18) (1986), succinctly states the rule: “The burden is on the party claiming error not only to show error, but error which injured him, and unless the error resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right, an appellate court will not reverse.”

Although appellant urges that he was harmed by this evidence because it led to the testimony and documents concerning his personal expenditures through his Federal Credit Union and American Express accounts, that is not so. The receipts and credit account statements which Claire turned over were just partly analyzed by the state and, although tending to show appellant was spending more than he was drawing in compensation as clerk, they were not used at trial. The state had better evidence of his living beyond legitimate means through records received directly from these same creditors and others pursuant to court orders of September 1986, four months before the box was delivered to the detective. None of its contents were used in the trial or to gain evidence which was admitted at trial. “A constitutional error is harmless, if there is no ‘reasonable possibility that the evidence complained of might have contributed to the conviction.’ Fahy v. Connecticut, 375 U. S. 85, 86-87 (84 SC 229, 11 LE2d 171) (1963). The test is . . . whether the evidence complained of may have influenced the factfinder’s deliberations, see Harrington v. California, 395 U. S. 250, 254 (89 SC 1726, 23 LE2d 284) (1969).” Harryman v. Estelle, 597 F2d 927, 929 (5th Cir. 1979). The application of this principle is illustrated in Chambley v. State, 177 Ga. App. 630 (1) (340 SE2d 635) (1986), and is appropriate here.

What appellant wanted by his motion to dismiss the indictment and claims he is entitled to is a bar to prosecution. He urges that he was denied due process because of what the assistant district attorney wrote in the letter, even if it did not have the effect on Claire Floyd of producing incriminatory evidence by illegal coercion or by evoking fear in her which constituted coercion, and even if it did not produce evidence used in trial. Thus he appears to urge that the court must sanction the State for its writing and delivering such a letter, requested by the addressee (who is not the defendant) and including a statement suggesting prosecution if the addressee does not comply.

The trial court conducted a hearing on the motion to dismiss, as well as on another motion, just prior to trial. At the hearing, defendant’s estranged wife, two police detectives, and the district attorney testified. The court had an earlier hearing on a motion to suppress the same evidence, which it denied after considering the testimony of the same two detectives plus another officer and Claire Floyd, as well as the letter from the assistant district attorney to Claire. Defendant does not contend that denial was error.

In ruling on the motion to dismiss, the court found as fact that there was no attorney-client relationship existing between Claire Floyd and defendant with respect to the items she turned over to the detective because they had no connection with the lawsuits in which she had been representing him. The court also found as fact that there was no prosecutorial misconduct in obtaining these documents. These findings are conclusive unless they are clearly erroneous, which they are not. See Muff v. State, 254 Ga. 45, 48 (2) (b) (326 SE2d 454) (1985), regarding findings at a suppression hearing. The principle is a general one, see, e.g., Conyers v. State, 249 Ga. 438, 441 (3) (291 SE2d 709) (1982), and would apply here as well.

Other than the statement itself in the letter that “Failure to [turn over the papers] may result in criminal prosecution for withholding evidence,” there is no evidence of coercion. The letter from the assistant district attorney to Claire Floyd was prepared at the request of her attorney, who asked the assistant district attorney to give her a letter “directing” her to give the papers. Claire had filed an action for separate maintenance December 11 and, although she had been given complete authority over defendant’s belongings and affairs by his letter to his daughter just after he left town in September, and she considered his things to have been abandoned by him, she was concerned because they were now adversaries. The sentence extracted in the quote above was added after the assistant consulted with the district attorney. When Claire picked it up at the courthouse, she did not even consult with her attorney again but instead, the next day, called the detective about where to deliver the records and then did so, obtaining a receipt she had prepared. She was concerned that she would be implicated in his wrongdoing, because she and defendant had some joint accounts and because she was the beneficiary of some of his cash and credit expenditures and because she knew there was a boxful of hundred dollar bills in the house.

Never did she intimate, in the motion to suppress hearing, or at the motion to dismiss hearing, or at trial, that she felt coerced or threatened in any way by the now-highlighted sentence. In fact, a review of her testimony, whether taken in its totality in these proceedings or only that portion which appears in the subject motion hearing, clearly shows that she did not wish to assist in the defense but cooperated from the beginning with the state. When the regular audit in August and September revealed the irregularities and appellant suddenly vanished without notice to her or anyone else after being confronted with some questions by the auditors, it is manifest that she became anxious to distance herself from him.

Claire never asserted or suggested that her Fourth Amendment rights were violated, or that she felt threatened or coerced by the district attorney. There is no evidence the state even knew of these papers or sought them before she voluntarily met with the district attorney. There is no evidence of lack of voluntariness but instead that she was willing, if not anxious, for the state to have them. And she justified her exercise of authority and control over them by pointing to defendant’s instructions in the letter he wrote to his daughter after he disappeared.

Nor did Claire ever say or imply that her action was prompted by prosecutorial coercion, or that she delivered the box of papers because she felt threatened by the prosecutor. It is the effect of the letter on her that counts, in considering voluntariness. The controlling factor is not the contents of the letter per se but the effect thereof on the addressee, because it is her action which defendant complains yielded incriminating evidence.

Thus a finding of fact by this court, that she was coerced, is not compelled by the evidence presented to the trial court. The latter viewed the letter in the context in which it was given as well as the broader context of Claire’s relationship with defendant and the history of the circumstances as well as what was anticipated by her.

Nor is there fault with the trial court’s finding that the papers Claire took to the detective were unrelated to the attorney-client relationship which had existed. This relationship is what appellant based his motion to dismiss on and bottoms his appeal on. That is the sole ground we are confined to considering. Franklin, supra; Brantley, supra; Fowler, supra.

It was undisputed that Claire had represented her husband in four legal matters: a suit for slander against a hospital concerning his paternity of a certain child born there, a suit to declare him not the father of that child, an injunction action against his brothers concerning some business venture, and a proceeding regarding his father’s estate. By the time the papers were given to the detective on January 10, she had stopped acting as his attorney, even though she had not entered formal withdrawals, and the matters had either been turned over to someone else or were concluded. Thus the evidence at the motion hearing just before trial supports the trial court’s ruling on this ground.

Consequently, despite defendant’s protestations, this case does not involve illegally forced extraction of a client’s papers from that client’s attorney for the purpose of criminal prosecution. What the assistant district attorney wrote, when viewed in the light of the circumstances as to the operative effect of the sentence, or letter, unjustified though it may be, does not require acquittal in order to preserve defendant’s federal constitutional right to due process of law.

2. The trial court did not err in refusing to sever the indictments, as to forgery, false swearing and theft, since they were based upon the same conduct or constituted part of a single scheme or plan, in appellant’s conduct as clerk of court, and the matter of severance lying within the sound discretion of the trial court. Griffin v. State, 180 Ga. App. 682 (350 SE2d 270) (1986).

3. The trial court’s polling of the jury upon request was properly done. See Green v. State, 246 Ga. 598 (17) (272 SE2d 475) (1980).

Judgment affirmed.

Benham, J., concurs. Been, P. J., concurs specially. McMurray, P. J., Carley and Pope, JJ., concur in the judgment only. Birdsong, C. J., Banke, P. J., and Sognier, J., dissent.

Deen, Presiding Judge,

concurring specially.

While concurring fully in Divisions 2 and 3 of the majority opinion, I cannot concur with all that is said in Division 1.

Initially, it must be noted that Floyd appeals from the denial of his motion to dismiss the indictment, and not from any unsuccessful attempt to suppress evidence. This court’s review should be narrowly limited to that issue, rather than branching off on to a suppression of evidence issue.

In this case, Floyd’s motion to dismiss essentially had two factual predicates, i.e., (1) that the prosecutor had demanded materials from Floyd’s attorney, and (2) that the demand was coercive. Review of the record, however, fails to bear out either fact. Floyd’s wife had previously served as his attorney in some civil actions, but at the time of the prosecutor’s request for the materials, not only was she no longer his attorney, she was well on her way to no longer being his wife. Concerning any contention that Floyd’s wife was coerced into surrendering the materials, it appears from the record that Floyd’s estranged wife actually was willing to cooperate with the prosecutor.

There was no “instinct with coercion” in this case. The trial court properly denied the motion to dismiss, and Floyd’s conviction should be affirmed.

Birdsong, Chief Judge,

dissenting.

A majority of this court today has condoned the use of, and in effect said that it is proper and right for the prosecution to simply write, a letter to a person (in this instance an attorney) and say: “You are hereby directed immediately to turn over [certain] evidence to the District Attorney’s office to be used in the prosecution of [a criminal case]. Failure to do so may result in criminal prosecution for withholding evidence. . . .”

The majority treats cavalierly the statement quoted: “Failure to do so may result in criminal prosecution for withholding evidence.” Threats of criminal prosecution are seriousl

The majority apparently sees nothing in the least harmful or unreasonable in approving such a threat. Can the police come to your door in the night and demand, under threat of arrest, that you give them whatever in your house they think might assist them in a criminal case? Can the state prosecutor hand-deliver a letter to you commanding you to turn over whatever he desires, or face prosecution, ergo imprisonment? Can any policeman stop you on the street or in your car and order you to hand over your purse or wallet or briefcase, or anything belonging to someone else which you control or possess? Wherein lies the difference?

Nothing now stands in the way of the State’s full enjoyment of this succulent fruit, except, apparently, the imposition of a burden newly placed upon the criminal defendant to prove the particular evidence was actually introduced at trial. This burden is terrible, awful to contemplate in any trial, but in a complex trial with dozens and dozens of documents obtained from many sources, and all commingled and confused, the burden is near impossible. And so, this Golgothian obligation is not a hinderance to the State’s gathering of evidence, for the mere imposition of this defendant’s burden gives license to the State to demand anything by threat, so long as it is not actually introduced at trial, or is used in a way that cannot be traced.

It is disturbing that the decisions written by the United States Supreme Court, the federal and all state courts upholding the Fourth Amendment constitutional rule of law and warrant against oppressive, intrusive state actions, have been apparently overlooked.

The majority asserts the evidence turned over by “Claire” was “just partly” analyzed by the State and, although tending to show appellant was spending more than he was drawing in compensation as clerk, “they were not used at trial.” The contextual truth, proven unequivocally by the record, is that the detective analyzed as much of the evidence as he pleased, wrote a report with conclusions, and gave the report to the DA; and then he gave the evidence to the DA, who reorganized it and rearranged it and admitted in court, in defense of using and introducing some arguably tainted evidence from defendant’s mailbox, that the mailbox evidence had gotten mixed in with the evidence turned in by Mrs. Floyd “so that the officers cannot identify specifically what” came in the mailbox or was gotten from Mrs. Floyd. And he argued that the use of the so-called mailbox evidence obtained by state warrant in September 1986, was somehow justified or harmless because some of it had been returned to Mrs. Floyd, and “in any event on January 10, 1987, they were subsequently turned back over to the police [by Mrs. Floyd] and they came back into the possession of the police in January anyway, at least some of the items probably. I think it is very difficult to tell because of the volume of mail that was coming in. The offices cannot identify specifically what it was.”

Thus, the prosecutor himself admits he very well, even presumably, might be introducing some of the evidence that came from Mrs. Floyd.

The statement that none of the evidence was used at trial is simply not true. There is, of the dozens and dozens of documents in evidence, State’s Exhibit 16.06, which is a series of American Express charge receipts labeled “cardmember’s copy,” and for which there is no warrant, as there was for another Amex account bearing another account number. The S16.06 receipts showed an expenditure of more than $2,500 for unspecified travel, on the account of Wayne Floyd, “Clerk of State Court.” Assuredly these came from the possession of the “cardmember” (Floyd), and not from the offices of American Express, for the Amex agent at trial merely identified S16.06, a “cardmember’s copy” which the State produced to him, and said he had “copies” of them in his files. Assuredly they did not come in the mailbox in September 1986, because one is dated January 1985, and the other is dated July 1986. At trial, while the detective was identifying the boxes of evidence he received from Mrs. Floyd, the prosecutor openly removed an American Express folder from a box because, he said, it did not “belong” there. It must reasonably be presumed that S16.06, cardholder’s copies of receipts of an Amex account, for which there was no warrant, and which presumably did not come out of the mailbox up to two years after they issued, may well have come from the evidence turned over by Mrs. Floyd, and were in the “errant” Amex folder removed from the box at trial by the prosecutor. The State certainly did not prove otherwise.

Moreover, merely removing a file from the box because it did not “belong” there is a clear admission of commingling and confusion of evidence, so that it cannot be represented as a fact that “the evidence in question was not tendered or referred to at trial,” and that “none of [its] contents were [sic] used in the trial or to gain evidence which was admitted at trial.”

While it is true the trial court held a hearing on the motion to suppress and denied it, as well as the motion to dismiss at trial, this alone does not mean it found the State had borne its burden to prove none of the evidence was used; the trial court deemed the letter not to be coercive and, therefore was not overly concerned with whether any evidence thus produced would be used. No factual basis whatever exists to assert none of the evidence was used or introduced.

It is also patently untrue that the evidence “clearly shows that she did not wish to assist in the defense but cooperated from the beginning with the State.” In fact the evidence clearly shows she was very concerned lest she be thought to be “cooperating” with the State, and that she expressly avoided any such implication, for she was aware of the need to protect herself as an attorney who had (or did have) an attorney-client relationship with the defendant. She expressly denied to the questioning prosecutor that she had ever, at any time, offered to donate legal assistance to the State in its prosecution. It may indeed be a reasonable inference that “she became anxious to distance herself from [Floyd]”; but how does this fact prove that therefore her particular response to the prosecutor’s threat was entirely voluntary?

There is no evidence that Mrs. Floyd “was willing, if not anxious, for the State to have this evidence.” This is distortion of the facts in the record; it is sheer imagination, as is the proof of “voluntariness” which the majority sees emanating from the fact that “Claire’s” attorney requested the prosecutor to “put it in writing.” The greenest lawyer seeking to protect his client demands a threat be put in writing.

But finally, the marvel of this fact-finding expedition is the naked statement, without sequiter, that the actual threat in the letter “was added after the assistant consulted the district attorney.” What does this contribute towards proving the threat was not a threat, as the majority implies?

The whole truth as testified to by the prosecutor is that he and his boss decided to add the threat after his conversation with Mrs. Floyd’s attorney. Yet the majority’s version of this episode is offered in proof of the voluntariness and eager cooperativeness of “Claire’s” actions, which are further proved, it seems, by the “fact” that she did not again consult with her lawyer after receiving the letter, but “called the detective about where to deliver the records and then did so, obtaining a receipt she had prepared.” What do these statements mean? What do they prove? They are, respectively, a statement reciting only half of the evidence and then a statement which proves nothing; yet apparently their mere presence in the body of overwhelming “facts” is mesmerizing.

In Rogers v. Richmond, 365 U. S. 534 (81 SC 735, 5 LE2d 760), a case involving a coercive threat, the United States Supreme Court condemned this sort of judicial fact-finding, as well as the “facts” so found: “In the present case, while the trial judge ruled that each of petitioner’s confessions was ‘freely and voluntarily made and accordingly was admissible in evidence,’ he reached that conclusion on the basis of considerations that undermine its validity. He found that the pretense of bringing petitioner’s wife in for questioning ‘had no tendency to produce a confession that was not in accord with the truth.’ . . . [The Connecticut appellate court held]: ‘Proper court authorization should have been secured before the defendant was removed from the jail. There is nothing about his illegal removal, however, to demonstrate that he was thereby forced to make an untrue H statement. The same can be said concerning the refusal to admit I counsel to see the defendant . . . before he was brought before the I coroner.’ [Cit.]” (Emphasis supplied.) Id. at 541-543. I

The Supreme Court said in Rogers, at pp. 545-546: “We are I barred from speculating it would be an irrational process — about the weight attributed to the impermissible consideration of truth and falsity which . . . may well have distorted, by putting in improper perspective, even [the trial court’s] findings of historical fact. . . . In coerced confession cases coming directly to this Court from the highest court of a State in which review may be had, we look for ‘fact’ to the undisputed, the uncontested evidence of record. [Cit.] This is all that we may look to, in the absence of detailed state-court findings of historical fact. ... Of course, so-called facts and their constitutional significance may be so blended that they cannot be severed in consideration. . . . [I]n any event, there must be a foundation in fact for the legal result. [Cit.]” Id., 546.

In this case, the entire “factual” construction by the majority concludes (in reality, speculates) that this threatening letter did not coerce Mrs. Floyd, and that her fears of being implicated in Floyd’s crimes and her concern to protect herself as a lawyer had no impact at all upon her response to the letter or vice versa, and that the evidence, particularly the fact that her attorney requested the demand be in writing, clearly proved “Claire” happily, eagerly and anxiously cooperated with the State. These speculations represented as “fact” are not merely false. They are also irrelevant, and they apply the wrong legal standard.

In Bumper v. North Carolina, 391 U. S. 543 (88 SC 1788, 20 LE2d 797), police officers merely pretended to have a warrant when they did not. Nothing so unpleasant as a threat of criminal prosecution was made. The subject of the search, Bumper’s grandmother, testified she voluntarily, of her own free will, allowed the officers to search her house. Yet the Supreme Court held her consent was not voluntary, as a matter of law, for any consent was vitiated by the false claim of “lawful authority” to search, by which the officers “announce [d] in effect that the [subject had] no right to resist the search.” The officers’ act of pretending to have a warrant was “instinct with coercion”; that is, it was inherently coercive in inception and in nature, though by her own account it apparently brought Bumper’s grandmother no actual fear. The threat of criminal prosecution made in this case was infinitely worse.

Although appellant does not complain on appeal of the trial court’s refusal to suppress this illegal evidence, he complains of the prosecutor’s misconduct in coercing the evidence, for which the obvious first remedy would be suppression. United States v. Morrison, 449 U. S. 361, 365-366 (101 SC 665, 66 LE2d 564). The allegation of prosecutorial misconduct therefore encompasses suppression of the evidence as a lesser remedy than dismissal. Moreover, the entire incident is one error, enumerated sufficiently to include the trial court’s failure to suppress the evidence, for the coerced production and use of the evidence are inextricably intertwined with the appellant’s right to have it suppressed if it is illegal. OCGA § 5-6-48 (f); see Clark v. State, 180 Ga. App. 280 (2) (348 SE2d 916).

In the Fourth Amendment right to be free from unreasonable search and seizure inheres the fundamental principle that the government does not have the right to simply demand whatever evidence it likes, under threat of criminal prosecution or other penalty. This is the bedrock upon which the Fourth Amendment rests. Out of it spring the requirements for warrant, probable cause, consent, lawful arrest, or exigent circumstances. See generally OCGA Title 17, Chapter 5. .

A third party possessing common authority over or other sufficient relationship to the premises or effects sought to be inspected or seized, may indeed consent voluntarily to search or seizure. See United States v. Matlock, 415 U. S. 164 (94 SC 988, 39 LE2d 242). But when the prosecution seeks to justify such a warrantless search or seizure by proof of consent, the burden is upon the prosecution to prove the consent was voluntary. Id.; Schneckloth v. Bustamonte, 412 U. S. 218, 224-265 (93 SC 2041, 36 LE2d 854). Whether the consent to a seizure was voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined by a careful scrutiny of the “totality of all the surrounding circumstances,” the inquiry being whether the seizure is the product of an essentially free and unconstrained choice of the party, or whether his will was overturned and his capacity for self-determination critically impaired. Id., pp. 225-226.

The United States Supreme Court in Schneckloth asseverated that the Fourth and Fourteenth Amendments require that a consent “not be coerced, by explicit . . . means, by implied threat or covert force.” Id., p. 228. If a search or seizure is found to be coerced “by threats or force, or granted only in submission to a claim of lawful authority,” it has been found invalid and the search or seizure unreasonable. Id., p. 233. But an act which is coercive by its nature, like this one, vitiates any supposed consent, {Bumper, supra) and when such an act is proved, the question of voluntariness is not a matter for speculation. Rogers, supra.

It is unnecessary to determine whether in this case the demand and threat were made upon Mrs. Floyd in her capacity as appellant’s wife or as his attorney; or whether she was in fact his wife and/or his attorney when this letter was served upon her; or whether any privilege was breached in either event; or whether she had been given authority of the documents or had possession of or access to the documents by virtue of her position of wife or attorney; or whether she could, in any case, have validly consented to turn over the documents as evidence. Viewing the prosecution’s position in all these matters in its most favorable aspects, Mrs. Floyd’s delivering up of this evidence was not voluntary. It was coerced, under a false claim of lawful authority. Bumper, supra. The threat informed her she had no right to resist the demand. Id.

She could not be prosecuted for “withholding evidence,” for it is not a crime in Georgia simply to “withhold evidence,” whatever that means. She could not even be prosecuted for obstruction of justice (see OCGA § 16-10-24), for one does not obstruct justice except by “knowingly and willfully obstructing] or hindering] any law enforcement officer in the lawful discharge of his official duties,” (emphasis supplied), which this demand by threat clearly was not.

But this particular threat, though empty, was never idle, for the mere tender of an empty threat ensured the prosecutor a degree of immunity from suspicion of coercion, while at the same time, since he insisted on it so seriously as to put it in writing, he plainly meant something by it.

In any case, it is not necessary that Mrs. Floyd actually state that she was coerced and her delivery of the evidence was involuntary. The threat was “instinct with coercion,” because the prosecutor “announce [d] in effect that [Mrs. Floyd had] no right to resist the [seizure],” (Bumper, p. 550) under threat of criminal prosecution.

With coercive threat proven, the prosecution has the burden to prove that none of the evidence obtained thereby was used. In Wong Sun v. United States, 371 U. S. 471, 485 (83 SC 407, 9 LE2d 441), the Supreme Court said: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source, they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.” (Emphasis supplied.) Under this statement of the law, I cannot find this constitutional violation was harmless beyond a reasonable doubt (see Shepherd v. State, 239 Ga. 28, 29 (235 SE2d 533); Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133)) because as the State concedes, it was analyzed and used to show appellant spent more money than he had incoming, and to establish his cash flow; clearly the State has failed to show none of it might have found its way into court, and in fact I conclude from the record that some of it did find its way into court and incriminated the defendant by its nature.

“ ‘Whenever a party is deprived of his rights, the presumption of the law is that he has been injured unless the contrary plainly appears.’ ” Massey v. State, 220 Ga. 883, 894 (142 SE2d 832).

I do not think that the prosecutor’s misconduct in obtaining this evidence, admittedly using it in the prosecution, and keeping it in such a state that it could not be (or was not) said one way or the other exactly what was contained in it or whether it was actually introduced, should be laid at the appellant’s feet in the form of forcing appellant to prove this evidence was actually used at trial. To do so would invite the State to profit from its unlawful seizure of the evidence by failing to keep account of what was. seized.

Whether the prosecutor’s conduct in making this demand by threat can be viewed as “misconduct” for any purpose under the Rules and Regulations of the State Bar of Georgia, in the circumstances of this appeal, his making of the threat of criminal prosecution if appellant’s wife/attorney resisted this seizure, while presumably knowing he could not lawfully do so, was misconduct in view of the most basic Fourth Amendment guarantee. See also Standard 56 of the Rules and Regulations of the State Bar of Georgia, Part IV. It was deliberate, “instinct with coercion” (Bumper, supra) and it did in fact coerce her to give up the evidence. The appropriate remedy for this misconduct (see Wilcox v. State, 250 Ga. 745 (301 SE2d 251)) was at the very least the suppression of the evidence. See United States v. Morrison, supra.

The State contends that the error if any, was harmless, even beyond a reasonable doubt, because the other legal evidence against Floyd was overwhelming. See Hamilton v. State, 239 Ga. 72, 76-77 (235 SE2d 515). In the first place, however, the State did not bear its burden to prove this illegal evidence was not used (see Schneckloth); therefore, we cannot say some of it is not part of the “overwhelming” evidence.

The threshold question is why, if the prosecution’s proper case was so overwhelming, it would seek to obtain evidence as it did in this case; and why, if as the majority says the State had so many other legitimate sources of evidence, such as warrants for bank records, it failed to get a warrant for this evidence or issue a subpoena duces tecum. We can only conclude the State found it fruitful and necessary to demand production of this evidence under threat of criminal prosecution, for the reason stated in the letter: to seize evidence “to be used in the prosecution,” and to lead to other, legal evidence. On principle, I cannot see how we can say this misconduct resulted in “harmless error,” for since the majority has said it was not even error, there looms ahead the certain prospect that in another case, a prosecution will deliberately, qualmlessly seek to obtain evidence in this fashion in hopes of ultimately obtaining enough good evidence to render any bad evidence “harmless,” and then, by keeping it in such a condition as to make it virtually impossible to say whether it was used, contend the defendant cannot prove harm. The Supreme Court has said this suppression is necessary to “[deter] lawless conduct by [law enforcement] officers ... or [to close] the doors of the . . . courts to any use of evidence unconstitutionally obtained. [Cit.]” Wong Sun, supra, p. 486.

Decided July 15, 1988

Rehearing denied July 26, 1988

Randall M. Clark, for appellant.

W. Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

Besides, it is difficult to see how the prosecution can show the error to be harmless in the face of overwhelming evidence, when obviously, as a threshold proposition, it considered this evidence important and necessary enough to obtain in this fashion while (as it now claims) there was available so much other legal evidence.

Upon the strongest and soundest constitutional grounds, I respectfully dissent.

I am authorized to state that Presiding Judge Banke and Judge Sognier join in this dissent.


author:
Banke, Presiding Judge. Deen, Presiding Judge, Beasley, Judge,
      Sognier, Judge,

text:
    76470.
    DAVIS v. UNION CAMP CORPORATION.
    (371 SE2d 898)
   Banke, Presiding Judge.

The claimant in this workers’ compensation case suffered a disabling head injury on March 7, 1985, while at work for the employer. From that date until June 27, 1985, he continued to receive his full wages pursuant to a “Salary Continuation Plan” offered by the employer. After June 27, 1985, the benefits available to the claimant under the “Salary Continuation Plan” were exhausted, and the employer began paying him workers’ compensation benefits for temporary total disability. He requested a hearing on the following issues: (1) Whether he was entitled to receive workers’ compensation disability benefits in addition to his salary for the period between March 7 and June 27, 1985, and (2) whether the employer should have been required to implement certain treatment recommendations made by his rehabilitation specialist. The administrative law judge ruled against him on both these issues and also granted a request by the employer for a change of physicians. These rulings were upheld on appeal to the full board and to superior court, whereupon we granted the claimant’s application for a discretionary appeal to this court. Held:

1. Strangely enough, the claimant’s position that he was entitled to receive disability benefits during the period after the accident when he was being paid his full salary pursuant to the “Salary Continuation Plan” appears to be well taken. Board Rule 220 (b), as it existed at the time in question, specified as follows: “An injured employee who receives regular wages during disability shall not be entitled to weekly benefits for the same period. The Form No. WC2 must state: ‘Employee elects to receive salary in lieu of weekly benefits.’ ” (Emphasis supplied.) (The rule was revised effective July 1, 1987, to specify that “[t]he Form WC1 or WC2” must contain the required statement). In St. Paul Fire &c. Ins. Co. v. Norman, 173 Ga. App. 198, 202 (2) (325 SE2d 810) (1984), this court held that, absent compliance with the board’s duly authorized rules, an employer was not entitled to a credit for salary paid to an employee in lieu of workers’ compensation disability benefits. See also State of Ga. v. Graul, 181 Ga. App. 573 (3) (353 SE2d 70) (1987), wherein this court upheld the board’s imposition of a civil penalty against an employer pursuant to OCGA § 34-9-18 (a), based on the employer’s failure to submit a Form WC2 reflecting that the claimant had made an election to receive annual and sick leave benefits in lieu of compensation.

The employer in this case never filed a Form WC2. Soon after the accident, the employer did file a Form WC1, “Employer’s First Report of Injury,” on which the words, “Salary Continued” were typed. However, no disclosure was made on this or any other writing submitted to the board suggesting that the claimant had made an election to receive his regular salary in lieu of workers’ compensation benefits; and the claimant testified without dispute at the hearing on his claim that he had never in fact been asked to make such an election. On the basis of the foregoing authorities, we are consequently constrained to hold that the employer was not relieved of its obligation to pay disability benefits during the period it continued to pay the claimant his regular salary pursuant to the “Salary Continuation Plan.”

We must reject the employer’s contention that because it filed a Form WC1, it was relieved, pursuant to board Rule 61 (b) (2), of any obligation to file a Form WC2 and thus of any obligation to specify that the claimant had made an election to receive salary in lieu of disability benefits. Rule 61 (b) (2) specifies in pertinent part, as follows: “Form WC2. Notice of Payment or Suspension of Benefits. Use Form WC1 to commence or suspend payment of weekly benefits when simultaneously filing an Employer’s First Report of Injury. For all other cases, including any change in weekly benefits, classification or rating of disability, file Form WC2. . . We find nothing in this language which could properly be construed as permitting the employer to avoid the disclosure requirement of Rule 220 (b) by the simple expedient of filing a Form WCl rather than a Form WC2. Certainly, the filing of a Form WCl would not have such an effect under the current version of Rule 220 (b), which permits the disclosure to be made on either the Form WCl or the Form WC2, and we do not believe that it was intended to have such an effect under the former version of Rule 220 (b), either. Rather, we interpret the former version of Rule 220 (b) as having required the submission of a Form WC2 containing the required disclosure in all instances where credit was sought for salary paid in lieu of disability benefits. Accordingly, we hold that the employer in this case was not entitled to claim such a credit and that the board’s ruling to the contrary should have been reversed by the superior court.

2. The administrative law judge’s decision not to authorize implementation of the recommendations of the claimant’s rehabilitation specialist was based on the stated assumption that the specialist had recommended a residential treatment program for the appellant lasting from six to nine months. However, it appears without dispute from the record and from the transcript of the hearing that what the rehabilitation specialist in fact recommended was merely a 7-day period of hospitalization for detoxification and evaluation, to be followed by further professional recommendations. It appearing that the rejection of the rehabilitation specialist’s recommendations was based upon a mischaracterization of the nature of those recommendations, we hold that the superior court also erred in affirming this portion of the board’s award, and we direct that the case be remanded to the board for reconsideration of this issue.

3. No abuse of discretion has been established with respect to the board’s decision to grant the employer’s motion for a change of physicians. Accordingly, that portion of the board’s award was properly affirmed by the superior court.

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

Birdsong, C. J., McMurray, P. J., Pope and Benham, JJ., concur. Deen, P. J., Carley, Sognier, and Beasley, JJ., concur in part and dissent in part.

Deen, Presiding Judge,

concurring in part, concurring specially in part, and dissenting in part.

While associating and concurring fully with Judge Sognier’s dissent concerning Division 1 of the majority opinion, and concurring fully with Division 3 of the majority opinion, I concur specially with Division 2 of the majority opinion which remands the case to the board for reconsideration of which detoxification, rehabilitation, and evaluation plan was appropriate; I believe that this issue must be reconsidered in light of prohibitions, pronouncements, and principles enunciated in Dan River, Inc. v. Shinall, 186 Ga. App. 572 (367 SE2d 846) (1988).

Beasley, Judge,

concurring in part and dissenting in part.

1. I fully concur in Division 1 because the choice is the employee’s and not the employer’s, and the employer must report this election. I also concur in Division 3.

2. I respectfully dissent with respect to Division 2 because I perceive no need to remand the case to the board for reconsideration of an issue which was litigated and decided.

The letter from claimant’s attorney to the ALJ amending the request for a hearing asked that the hearing also determine whether the employer would be required to implement the treatment plan recommended by clinical psychologist Dr. O’Hara and the rehabilitation specialist, or instead could implement the plan for local hospitalization for detoxification purposes recommended by Dr. Tilliger and approved by the employer. As had been explained by the rehabilitation specialist in a letter to the employer’s workers’ compensation agent, Dr. O’Hara’s plan involved an initial program of detoxification and also pain management in Atlanta, during which other doctors could be brought in to complete a neurological evaluation. Following this, Dr. O’Hara could see the employee in Atlanta to reassess her recommendation for a 24-hour residential program for brain-injured adults.

At the hearing, it was brought out that this residential program would last for six to nine months and that the initial multi-purpose Atlanta program was desired because the employee did not have confidence in local doctors. The employer urged the plan recommended by Dr. Tilliger and Dr. Nash, the regional medical director of the employer, that the employee first undergo local detoxification and thereafter neuropsychological evaluation and then an assessment of rehabilitation needs. The evaluation would be done when the employee was drug-free, because the evaluation would be skewed if done during detoxification in accordance with the Atlanta-based plan.

All of this was aired in detail before the ALJ, who issued an award stating findings of fact and briefly outlining the competing plans. He then concluded: “The plan recommended by Dr. Nash is found to be the appropriate plan of action to take at this time. The request of claimant to obtain Board approval of the recommended course of action as outlined by Dr. O’Hara is denied at this time.”

From the record in this case, it does not appear that upon remand, any more needs to be done.

Sognier, Judge,

dissenting.

I respectfully dissent to Division 1 of the majority’s opinion. I do not believe, as the majority apparently does, that we are constrained by St. Paul Fire &c. Ins. Co. v. Norman, 173 Ga. App. 198, 202 (2) (325 SE2d 810) (1984) and State of Ga. v. Graul, 181 Ga. App. 573 (3) (353 SE2d 70) (1987), to hold that the employer must also pay disability benefits during the period it continued to pay the claimant his regular salary pursuant to the “Salary Continuation Plan.” Both Norman and Graul are easily distinguishable. The issue on appeal in Graul was not credit for a salary continuation but a penalty imposed on the employer. In fact, Graul supports the idea that a credit ought to be given, since in Graul we affirmed an award granting the employer credit for a salary continuation. Id. at 574. In Norman, our rejection of a credit for the salary continuation was based on the employer’s complete failure to follow former Rules 12 and 25. In that case, the employer filed nothing — not even a First Report of Injury — to indicate to the Board that the employee had been injured. Neither case involved the doctrine of substantial compliance, which I believe to be the main issue here.

In the case at bar we do not have an employer who totally failed to act, as in Norman, nor do we have the issue of whether a penalty should be imposed on the employer, as in Graul. Rather, the ALJ found that the employer had substantially complied with the Board’s rules, and this finding was affirmed by the Board. In so finding, the ALJ also implicitly found that the claimant’s acceptance and retention of the $328 weekly wage continuation, when he could have insisted upon the alternative $135 weekly workers’ compensation benefit, in fact amounted to an election by the employee to accept the salary. In my view, that finding was correct and this court should affirm the ruling below. First, it was supported by evidence in the record showing that forms had been filed, and that the Board had been informed that the claimant was injured, and was receiving salary in lieu of workers’ compensation benefits. “ ‘[T]he courts on appeal are bound by findings if supported by any evidence.’ ” Handcrafted Furniture v. Black, 182 Ga. App. 115, 117 (2) (354 SE2d 696) (1987).

Second, there is ample support in the law for such an affirmance. OCGA § 1-3-1 (c) provides that “[a] substantial compliance with any statutory requirement . . . shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law.” No express provision in the law provides that substantial compliance in this case shall be insufficient. Rather, in this case, where by continuing to receive his salary the claimant received an amount almost three times greater than the possible workers’ compensation benefit to which he might otherwise have been entitled, the majority’s slavish adherence to technical language in the rule simply creates a windfall for the claimant. It has long been established that “ ‘one ought not in equity and good conscience retain money where he would be enriched unjustly at the expense of another.’ [Cit.]” Intl. Indem. Co. v. Bakco Acceptance, 172 Ga. App. 28, 32 (322 SE2d 78) (1984). Yet such unjust enrichment is precisely the result of the majority’s decision here.

Decided July 8, 1988

Rehearing denied July 26, 1988

Phillip M. Eddings, for appellant.

B. H. Levy, Jr., James L. Elliott, for appellee.

Moreover, the majority’s position flies in the face of the express provision in Rule 220 (b) that “[a]n injured employee who receives regular wages during disability shall not be entitled to weekly benefits for the same period.” (Emphasis supplied.) “ ‘Where there is an apparent conflict between different sections of the same statute, the duty of a court is to reconcile them, if possible, so as to make them consistent and harmonious with one another. [Cit.]’ ” Oxford v. Macon Telegraph &c. Co., 104 Ga. App. 788, 791 (123 SE2d 277) (1961). The fact that this provision is a rule enacted by an agency pursuant to a grant of legislative authority does not change our duty, as such rules have the force of law. See American Med. Intl. v. Charter Lake Hosp., 186 Ga. App. 204, 207 (366 SE2d 795) (1988). The majority opinion, while mentioning the language of Rule 220 (b) prohibiting injured employees from receiving workers’ compensation benefits while receiving regular wages for the same period, simply ignores that language in reaching its conclusion. I do not believe this result is equitable or proper, nor do I think it is necessary here.

Since I concur in Judge Beasley’s dissent as to Division 2 of the majority, and with the majority as to Division 3, I would affirm.

I am authorized to state that Judge Carley joins in this dissent and Presiding Judge Deen joins the dissent to Division 1 of the majority.


text:
    76852.
    CAMARATA v. THE STATE.
    (371 SE2d 885)
   Deen, Presiding Judge.

Appellant Camarata was observed operating a vehicle in an erratic manner. He was arrested and agreed to have his blood and urine tested for the presence of alcohol or other drugs. The results showed: “The blood is positive for ethyl alcohol 0.06 grams%”; “Immunoassay techniques indicate the presence of tetra-hydrocannabinol [marijuana] and/or metabolites in the blood specimen”; and “Immunoassay techniques indicate the presence of tetra-hydrocannabinol and/or metabolites in the urine specimen.” Camarata was accused in separate counts of driving under the influence of alcohol, driving under the influence of drugs, and driving under the influence of alcohol and drugs.

Appellant filed a discovery motion and was given copies of the laboratory reports. He then filed a motion in limine seeking to prevent the State’s witness from testifying on matters not expressly included in the reports. The motion was based on the grounds that, since the testimony was essential to an understanding of the data in the reports, this testimony should be considered a part of the reports; and, since the exact contents of the expected testimony were not provided to defense counsel ten days before trial, this constituted a violation of OCGA § 17-7-211 which should render the testimony inadmissible. The motion was denied.

At trial the forensic toxicologist who had analyzed Camarata’s blood and urine testified that he had employed certain analytical methods approved by the State Crime Laboratory and that the tests had been performed in such a manner as to ensure the accuracy of the results. He further testified that the results were quantified in terms of nanograms (a unit of measurement representing one billionth of a gram) and that, on the basis of experience, a scale had been devised running from 0 to 250 nanograms, each point on the scale representing the degree of effect of a given drug on the human function. In further testimony the witness stated that the reading on Camarata had exceeded 250, and that, in combination, either two or more drugs, or alcohol and one or more drugs, exhibit a cumulative effect which could be functionally disabling even if one of the ingredients alone were not present in sufficient quantity to result in impairment. The defendant was found guilty of driving under the influence of alcohol and drugs. On appeal Camarata enumerates as error the denial of his motion to suppress the expert testimony. Held:

1. In Durden v. State, 187 Ga. App. 154, 158 (369 SE2d 764) (1988), a case factually similar to the instant case, this court held that the omission of the actual figures (i.e., the number of nanograms of the controlled substance found per milliliter of the defendant’s blood, urine, or other body fluid) from the forensic laboratory reports supplied to the defense by the State rendered the report in noncompliance with OCGA § 17-7-211. This noncompliance, we held, constituted reversible error because “the scientific evidence which was denied to the defense, in fact comprised the entire substance of the State’s case.” Durden, supra at 158.

In Box v. State, 187 Ga. App. 260 (370 SE2d 28) (1988), this court found, in factual circumstances closely similar both to Durden and to the instant case, that the omission of the actual figures was fatal to the prosecution’s case. On the authority of Durden and Box, therefore, we must reverse the judgment in the case sub judice.

Decided July 6, 1988

Rehearing denied July 26, 1988

Donald L. Hudson, Jr., David H. Jones, for appellant.

Ralph T. Bowden, Jr., Solicitor, H. Jackson Cotney, Jr., Gary D. Bergman, Assistant Solicitors, for appellee.

2. We note with concern the problem common to the instant case and those cases cited in Division 1, supra; namely, that the “results” printed on the forensic laboratory’s report have independent significance to an expert but not to the laity, leaving the latter dependent on the expert’s testimony at trial for a meaningful interpretation of the results. The forensic expert, through experience, immediately recognizes that a report which indicates “presence” of a controlled substance in the body fluids of the accused means “presence in a quantity sufficient to have a significant effect” and denotes, to the expert, a range of nanograms per milliliter which indicates impairment of a person’s ability to drive. As the State points out in its brief, the legislature has by statute created certain inferences in association with certain levels of alcohol in the blood. OCGA § 40-6-392. If similar legislation existed regarding tests for controlled substances, the latter would provide the same certainty as do the tests for alcohol content.

Judgment reversed.

Carley and Sognier, JJ., concur.