text:
    A90A2381.
    McGRAW v. THE STATE.
    (405 SE2d 53)
   Beasley, Judge.

McGraw was found guilty of unlawfully and without authority and with intent to commit a theft therein entering the Hall County Courthouse Annex property and evidence room and unlawfully taking more that 28 grams of cocaine and a mixture with a purity of ten percent or more of cocaine. The case had been transferred from the juvenile court. See In the Interest of T. M., 195 Ga. App. 342 (393 SE2d 448) (1990). Following denial of his- motion for new trial, as amended, he appeals his convictions for trafficking in cocaine, OCGA § 16-13-31 (a) (1), burglary, OCGA § 16-7-1 (a), and felony theft by taking, OCGA § 16-8-2. He was not sentenced on the theft charge because it was deemed merged with the burglary as a matter of fact.

Appellant filed 17 enumerations of error, denominated “A” through “Q” inclusive and, six weeks later, one “supplemental” enumeration and supporting brief. See Court of Appeals Rule 27 (a). The late documents will not be considered inasmuch as enumerations of error may not be amended after the original filing time has expired and an additional brief cannot be used to argue enumerations not addressed in the original brief. See Zilka v. State, 194 Ga. App. 471, 472 (391 SE2d 23) (1990); Quick v. State, 166 Ga. App. 492, 493 (1) (304 SE2d 916) (1983). Appellant’s timely enumerations will be addressed in numbered divisions rather than by letter and in a sequence attempting greater clarity of the issues raised. Expansions and enlargements of the enumerated errors in the brief are not considered. Newberry v. State, 184 Ga. App. 356, 357 (1) (361 SE2d 499) (1987). We have considered an amicus curiae brief addressing solely Enumerations N & P regarding the conduct of voir dire.

1. Appellant contends that the trial court erred in denying his “Motion to Dismiss the Indictment” on the merits and on the bases that the motion was improper in style and untimely (Enumeration A).

Pretermitting questions of style and timeliness, the substantive challenge to the indictment, i.e., that Count 1, the trafficking charge, did not adequately set out the crime and that the dates of the alleged offenses were not sufficiently stated, was without merit. Count 1 stated the essence of the trafficking statute; the time frame alleged, between September 1, 1985 and September 20, 1987, was a sufficient allegation as to dates. It does not appear that the failure to allege a specific date, which defendant knew was unknown to the State, “materially affected his ability to present a defense.” Massengale v. State, 164 Ga. App. 57, 58 (1) (296 SE2d 371) (1982). See Hutton v. State, 192 Ga. App. 239, 241 (4) (384 SE2d 446) (1989).

2. Appellant contends that he should be granted a new trial because the trial court so interfered with appointed trial counsel’s performance that appellant was denied effective assistance of counsel as guaranteed under the Sixth Amendment to the Federal Constitution (Enumeration N). He targets the court’s requiring trial counsel, prior to trial, to reveal intended questions for voir dire and thus to reveal intended trial strategy. Trial counsel is appointed appellate counsel.

(a) Counsel’s assertion of his own ineffectiveness in this regard was not raised in appellant’s motion for new trial, “supplemental motion for new trial,” or “extraordinary motion for new trial,” nor is there any indication by citation to the record that it was raised before the trial court. Appellant has waived the issue. Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988); Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986).

(b) Control of the pursuit of voir dire is within the trial court’s sound legal discretion, see Whitlock v. State, 230 Ga. 700, 706 (5) (198 SE2d 865) (1973). Requiring submission of proposed voir dire by criminal defense counsel has been upheld absent a finding of manifest abuse of discretion by the trial court. See Thompson v. State, 154 Ga. App. 704, 705 (2) (269 SE2d 474) (1980). We find none which prejudiced defendant.

3. Appellant contends that the trial court erred in refusing to allow trial counsel to ask certain questions on voir dire and thereby deprived him of a meaningful voir dire and a fair trial (Enumeration P). Appellant lists 36 questions which he claims the trial court refused to allow and cites a portion of the transcript where counsel “objected, and perfected the record in that regard.”

(a) The citation to the exchange between the court and defense counsel reflects that defense counsel did not make any objection to the court’s decision on each question but lodged only a bare objection at the conclusion of the court’s rulings without giving any basis. This court will not consider a basis of objection which was not considered by and ruled on by the trial court. See Brinson v. State, 191 Ga. App. 151, 152 (2) (381 SE2d 292) (1989).

(b) The citation reveals significant disparity between the number and denomination of the proposed questions ruled on in the exchange and those which appellant now sets forth. The trial court mentions 33. Because of such disparity, it is impossible to tell with certainty, even from review of the actual individual voir dire, which has not been cited by appellant, what questions were omitted and whether or not any omission was the result of the court’s ruling or of defense tactics. Appellant has not shown a violation of OCGA § 15-12-133.

4. Appellant contends the court erred in denying his motion in limine asking that the State’s witnesses be instructed not to mention any drug use on the part of appellant on the basis that such evidence would improperly place his character in issue (Enumeration B).

Appellant’s objection at trial was not so broad. Defense counsel requested no mention of drug use unless the State could “lay the proper foundation — unless it [was] connected to the [missing] cocaine.” Counsel opined that in such instance, the evidence might be introduced as a similar act. The State responded that evidence of drug usage was part of the res gestae and relevant to the question of motive for taking the cocaine. The court ruled that it would allow evidence of appellant’s drug usage limited to the time frame of the indictment.

The correctness of the court’s ruling is moot because appellant fails to allege or demonstrate that the State presented any evidence of his drug use either before, during, or after the period alleged in the indictment. Appellant was not harmed by the court’s ruling. “In order for an alleged error to be grounds for reversal, appellant must show not only error, but also ensuing harm. [Cit.]” Bowen v. State, 170 Ga. App. 49, 50 (1) (316 SE2d 33) (1984).

5. Appellant contends that the court erred in denying his motion in limine seeking to prohibit the State from introducing testimony or other evidence that he was a co-defendant in a pending indictment with State’s witness Lowe (Enumeration C).

Appellant cannot now complain of any error in denying the motion because he himself induced the court’s action and introduced the subject evidence. See Griffith v. State, 188 Ga. App. 789, 790 (374 SE2d 359) (1988). The court denied the motion essentially on the representation by appellant’s counsel that he intended to introduce evidence of the pending charge in cross-examination of Lowe, reasoning that such action by appellant’s own counsel would open the door for the State. Through cross-examination and the introduction of certain exhibits, the defense itself rather than the State made the jury aware of appellant’s involvement in the unrelated pending charge.

6. Appellant’s contention that the trial court erred in allowing the State to bolster Lowe’s testimony (Enumeration D) is considered abandoned because he fails to provide any supporting legal authority or to make any supporting legal argument. Court of Appeals Rule 15 (c) (2).

7. Appellant contends that the trial court erred in allowing a GBI agent to testify to hearsay, that he spoke with appellant’s mother and that she gave the agent a list of appellant’s associates (Enumeration E).

Appellant did not object at trial, as he now does on appeal, to testimony about obtaining the list but only to revelation of the names on the list. Moreover, an objection based on hearsay was inappropriate. OCGA § 24-3-1 (a).

8. Appellant contends that the trial court erred in allowing a detective to testify that a set of scales and vial, commonly known as drug paraphernalia, were found atop a hutch in the living room in appellant’s girl friend’s apartment at a time when appellant was on the premises, constituting the improper introduction of his character into evidence (Enumeration G).

The testimony was elicited by the State in direct rebuttal of appellant’s earlier testimony on cross-examination that he did not recall whether any drug items were in the apartment in which he spent a considerable amount of time, but that scales were not. “A witness may be impeached by disproving the facts testified to by him.” OCGA § 24-9-82. Even if drug familiarity or usage by appellant, i.e., bad character, could be inferred from the presence of the drug paraphernalia, appellant “may not use the character evidence rule [OCGA § 24-9-20 (B)] as a sword.” State v. Byrd, 255 Ga. 665, 667 (341 SE2d 455) (1986).

9. Appellant contends that the trial court erred in not allowing him to introduce defendant’s exhibit 4, an alleged affidavit by State’s witness Passmore containing prior consistent statements (Enumeration F).

This court is unable to review the trial court’s initial ruling because appellant fails to point out where in the massive record the objected-to ruling may be found, as required by Rule 15 (c) (3) (i) & (ii). Regardless, the substance of the statement contained in the exhibit was explored by the defense on cross-examination of Passmore.

The complaint of admonishment of defense counsel by the trial court is not reached. Newberry, supra.

10. Appellant contends that he is entitled to a new trial because the trial court erred in not allowing into evidence the favorable results of a polygraph examination administered by a State expert (Enumeration H).

There was no express stipulation that the test results would be admitted into evidence. Appellant argues that inasmuch as he was “enticed” by the State to undergo the polygraph, the State entered into an implied stipulation. He further argues that fundamental fairness required admission of the evidence.

“It has been stated and reiterated that ‘(u)nder the law as it now exists in this State, results of polygraph tests are admissible only upon the express stipulation of the parties.’ Sustakovitch v. State, 249 Ga. 273, 275 (290 SE2d 77) (1982); State v. Chambers, 240 Ga. 76 (239 SE2d 324) (1977).” (Emphasis supplied.) Dunlap v. State, 195 Ga. App. 700 (394 SE2d 626) (1990). Neither the legislature nor the Supreme Court has provided for admission under the theory of a stipulation implied by the circumstance of favorable evidence for the accused. See Dunlap, special concurrence at 701. Compare United States v. Piccinonna, 885 F2d 1529 (11th Cir. 1989). The polygraphist’s warning to defendant before the test was administered, that the evidence could and would be used against him, did not constitute a stipulation of admissibility by the State. Nor did the State’s stipulation of another’s test in another case affect admissibility of this exam in this case.

11. Appellant decries his thwarted plans to produce a certain witness at trial and argues that this failure to have the testimony entitled him to a new trial “based upon the surprise” of the witness’ “unavailability” (Enumeration I). This presents nothing for review because appellant fails to articulate any ruling, much less error, by the trial court which resulted in trial without the witness. Because he was placed on the horns of a dilemma during trial with respect to that witness’ expected testimony that another person admitted taking the drugs, he chose not to call him when he learned that the witness would recant. This choice did not entitle defendant to a new trial at which to deal more adroitly with the problem. Thus it was not an abuse of discretion to deny a new trial on this ground.

12. Appellant contends that the trial court erred in failing to grant his “supplemental motion for new trial,” really an amendment to the original motion, based on prosecutorial misconduct (Enumeration J). He maintains that the State withheld certain exculpatory information possessed by the GBI in violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). In his motion, he refers to information about Steve Hill. At the hearing, he bottomed the amendment on a statement to the GBI by a person who supposed that a certain woman had stolen the drugs.

Appellant fails to show a Brady violation. Even assuming that the subject unsupported statements of a woman named Davenport could be characterized as exculpatory in regard to the appellant, which he has not demonstrated, the record shows without dispute that the Sate did not wilfully or intentionally conceal from the defense this information. It was possessed by the GBI but had not been given to the district attorney either. See Cato v. State, 195 Ga. App. 619 (1) (394 SE2d 413) (1990).

13. Appellant contends that the trial court erred in failing to grant a new trial because of alleged prosecutorial misconduct and newly discovered evidence surrounding ostensibly inculpatory or impeaching information about State’s witness Hill (Enumeration K).

(a) The record does not support the allegations of the State’s awareness of the extent of any mental illness suffered by Hill at the time he testified. Nor does it support allegations of certain plea negotiations regarding a plea of guilty but mentally ill to pending charges occurring at or before defendant’s trial. Thus, the alleged newly discovered evidence regarding Hill’s mental health condition and situation vis-a-vis pending charges when he testified as a State rebuttal witness did not require a new trial at which he could be impeached so as to create a reasonable doubt of defendant’s guilt.

(b) As to the revelation to the defense during trial of the existence of a “cocaine poem” arguably linking the witness to cocaine usage, the court offered to declare a mistrial based upon a perceived Brady violation but the defense refused and asked that the trial go forward since his motion for a continuance was denied.

(1) “[T]he mandate of Brady is not violated when the ‘material is (made) available to the defendant during trial, since Brady does not require a pre-trial disclosure of the materials. (Cits.)’ [Cit.]” Assad v. State, 195 Ga. App. 692, 693 (1) (394 SE2d 617) (1990).

(2) Even assuming a Brady violation, the defense refused the offered remedy. It was not error to deny a new trial after conviction when defendant had already refused a new trial, based on the same ground, during the course of the original trial.

14. Appellant contends that the trial court erred in denying his motion for a continuance upon learning the existence of the Hill “cocaine poem,” because the revelation constituted unfair surprise (Enumeration Q).

As already noted, appellant refused the remedy of a mistrial offered by the court. Appellant argues that a mistrial would have put him at a tactical disadvantage by giving the State foreknowledge of his cross-examination of State’s witnesses, so that he was entitled as a matter of law to a continuance to find Hill. Since Hill did testify later in the case, whether or not a continuance should have been granted was rendered moot.

Moreover, appellant’s basis for requesting the continuance was not the late awareness of the poem, which he now argues, but rather so that appellant could secure the presence of Hill. See Brinson, supra at 152 (2).

15. Appellant contends that the trial court erred in quashing a post-trial subpoena served on witness Hill’s psychologist, seeking the production of Hill’s treatment records for the purpose of showing newly discovered evidence (Enumeration L). He claims he was entitled to the records to establish Hill’s mental illness and whether Hill had told the doctor he had a cocaine problem. He argues that the psychologist’s testifying at Hill’s sentencing hearing waived the psychologist-client privilege, OCGA § 43-39-16.

The evidence was apparently sought for impeachment purposes, and appellant as movant for a new trial on the basis of newly discovered evidence fell short of satisfying the required showing. See Humphrey v. State, 252 Ga. 525, 528 (3) (314 SE2d 436) (1984). Furthermore, appellant’s cited authority does not support his contentions of any waiver of the psychologist-client privilege under the stated circumstances, much less the asserted extent of waiver.

16. Appellant contends that the trial court erred in failing to grant his post-trial motion to disqualify the district attorney and his assistants (Enumeration M). The motion was filed at the time of the hearing on the motions for new trial.

A district attorney may be disqualified to engage in a prosecution from interest or relationship. OCGA § 15-18-5 (a). Appellant’s numerous allegations of misrepresentation and other prosecutorial misconduct stemming from the district attorney’s political and personal interest are unsupported by the record. The gist of the allegations of interest is that the district attorney purposefully suppressed certain information which would have impeached witness Hill, in order to protect a member of the district attorney’s staff who was romantically involved with Hill. As requested by appellant, this court has examined certain documents in an unrelated criminal case against Hill which the trial court placed under seal. The contents are irrelevant to a determination of the issue of legal disqualification.

(a) There is no showing whatsoever that the individual alleged to have been linked with Hill was in any manner involved in appellant’s prosecution. The district attorney and other members of his staff directly handling appellant’s case would not have been legally disqualified under a theory of imputed disqualification. Holiday v. State, 258 Ga. 393, 397 (9) (369 SE2d 241) (1988).

Decided February 13, 1991

Rehearing denied March 28, 1991

Watson & Watson, Herman A. Watson III, for appellant.

C. Andrew Fuller, District Attorney, Leonard C. Parks, Jr.,

Thomas W. Malone, Assistant District Attorneys, for appellee. Thomas W. Malone, amicus curiae.

(b) There is no showing whatsoever that the district attorney or any member of his staff engaged in appellant’s prosecution had any knowledge of a colleague’s alleged involvement with Hill.

(c) There is a complete failure to show any intentional attempt by the district attorney or his office to suppress information, including that pertaining to Hill, relevant and exculpatory to appellant’s prosecution and in violation of Brady. See Divisions 12 & 13, supra.

Disqualification was not required.

17. Appellant contends that he should be granted a new trial because the trial court interfered with presentation of his defense and by other conduct demonstrated prejudice against him (Enumeration 0). The only specific conduct complained of which has not been dealt with above is an alleged in camera conference during trial. In it the court allegedly informed appointed defense counsel that after trial the court would request an opportunity to review the bill which defense counsel would submit to the county indigent defense committee in order to assure that there were no charges for time expended on unnecessary functions. Appellant argues that fear that counsel’s bill would be reviewed and cut “chilled” defense counsel’s representation.

The subject conference was not recorded, so a review of what transpired is not possible. See Meier v. State, 190 Ga. App. 625 (1) (379 SE2d 588) (1989). The one-paragraph statement in affidavit form by the prosecuting attorney is an insufficient substitute in this case. OCGA § 5-6-41 (h).

Moreover, appellant submits no authority, and we know of none, to support the proposition that the trial court had no authority to review the bill to assure that it was proper in all respects and to advise during trial of its intention to do so.

Nor does appellant specify any curtailment of representation resulting from the court’s action regarding fees.

Judgments affirmed.

Pope and Andrews, JJ., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A91A0050.
    DURDEN et al. v. THE STATE.
    (405 SE2d 50)
   Andrews, Judge.

Pursuant to a search warrant, Spalding County police officers found approximately one pound of marijuana at the residence of David Durden and Penny Durden. At a bench trial both were convicted of violations of the Georgia Controlled Substances Act. The Durdens claim that the trial court erred by failing to grant their motion to suppress the evidence found in the search.

The events that led to the search of the Durdens’ residence began on Interstate Highway 75 in Henry County, Georgia. A Georgia Bureau of Investigation agent was traveling on Interstate 75 in his unmarked vehicle, and approached the Durdens’ vehicle traveling in the same direction. As he pulled alongside to pass, he saw a passenger in the rear seat take a puff from what appeared to be a marijuana cigarette. The agent maintained his position and observed the rear seat passenger place a hand-rolled cigarette to his mouth, take a breath and hold it in, and then pass the cigarette to Penny Durden in the front seat. The agent, who had been assigned to narcotics work for at least five years, based on these observations and his experience in observing the use of marijuana, stopped the Durdens’ vehicle to investigate his suspicions. According to the agent, the following events and colloquy transpired at the stop: The driver, David Durden, got out of the vehicle and gave the agent his driver’s license.

“GBI agent: I saw you guys smoke a joint.
“Mr. Durden: Yes Sir.
“GBI agent: Give it to me please.”

. Mr. Durden walked to the vehicle, got the marijuana cigarette from Mrs. Durden, and gave it to the agent. Not knowing if the appellants had more contraband, the agent decided to try a bluff, and said, “That’s not all you have. Let’s have the rest of it.”

Mr. Durden produced another marijuana cigarette from under the sun visor of the vehicle. The agent then continued his questioning.

“GBI agent: Are you sure this is all you have?
“Mr. Durden: Yes sir, that’s all we have.
“GBI agent: In this case you don’t mind if I look in your car do you?
“Mr. Durden: No sir.”

The agent then removed a camera bag from the rear seat of the vehicle, asked for permission to open it and receiving no response, opened it and discovered over one pound of suspected marijuana. At that point he placed the Durdens and the passenger under arrest.

Thereafter, the Durdens were read their rights against self-incrimination and transported to the sheriff’s department, where they signed a written waiver of their rights. A standard inventory search of the vehicle by the sheriff’s department prior to impoundment revealed another pound of marijuana in the trunk of the car. The Durdens gave statements regarding the marijuana in the vehicle, and, in response to further questioning, stated that they had a small quantity of marijuana at their residence in another county. After they refused to consent to a search of their residence, this information was used to obtain a search warrant for the residence. In executing the warrant, police officers found just under one pound of marijuana hidden in and around the residence.

The gravamen of the Durdens’ contentions is that the evidence gathered at the residence should be suppressed as the fruits of the earlier illegal stop, search and arrest. We disagree. Based on his observations and experience, the GBI agent formed an articulable suspicion sufficient to stop the Durdens and investigate whether they were in possession of marijuana. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968); State v. Hodges, 184 Ga. App. 21 (360 SE2d 903) (1987). Thereafter, the investigation was narrowly directed to the purpose of the stop. State v. Webb, 193 Ga. App. 2, 4 (386 SE2d 891) (1989). The agent’s initial statement to Mr. Durden that he saw them smoking a joint went directly to the suspicions giving rise to the stop. When Mr. Durden responded affirmatively and produced the marijuana, the agent had probable cause at that point to arrest the Durdens and conduct a search of the vehicle.

As an exception to the warrant requirements of the Fourth Amendment, police may conduct a warrantless search of an automobile when such facts and circumstances exist as would lead a reasonably prudent person to believe the automobile contained contraband. Carroll v. United States, 267 U. S. 132 (45 SC 280, 69 LE 543) (1925); Hodges, supra at 24; McKinney v. State, 184 Ga. App. 607, 609-610 (362 SE2d 65) (1987). Mr. Durden’s response confirming the presence of marijuana confirmed the agent’s strong suspicions and established probable cause. Compare Vincent v. State, 178 Ga. App. 199, 200 (342 SE2d 382) (1986) (physical precedent) (strong suspicion insufficient foundation for probable cause, where on investigation driver denied presence of contraband). Probable cause authorized the agent to search every part of the vehicle which might have concealed marijuana, including the trunk and closed containers such as the camera bag. United States v. Ross, 456 U. S. 798 (102 SC 2157, 72 LE2d 572) (1982); Love v. State, 254 Ga. 697, 699 (334 SE2d 173) (1985). Marijuana was later found in the trunk of the vehicle pursuant to a routine inventory at the sheriff’s department. We need not decide whether an inventory search was proper since the warrantless trunk search had a probable cause basis.

Decided February 7, 1991

Rehearing denied March 28, 1991

Edea M. Caldwell, for appellants.

W. Fletcher Sams, District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.

After the initial stop and search of the vehicle, the Durdens were arrested and given the Miranda warnings. They waived those rights and voluntarily elected to give statements and respond to custodial questioning. See Askew v. State, 193 Ga. App. 61-62 (387 SE2d 25) (1989). The search warrant was based in part on the Durdens’ statements that they were in possession of marijuana located at their residence. These statements were clearly sufficient probable cause for issuance of the warrant. See Campbell v. State, 226 Ga. 883 (178 SE2d 257) (1970); Mitchell v. State, 239 Ga. 456, 458 (238 SE2d 100) (1977) (magistrate may rely on information related by one officer to another officer who gives the affidavit).

The Durdens’ version of the events was that the residence search was tainted by an illegal initial stop and coercive police conduct during their custodial questioning. On appeal we must accept the resolution of factual disputes, credibility and inconsistencies between the testimony of witnesses made by a trial judge at a suppression hearing, unless such determinations are clearly erroneous. State v. Louis, 185 Ga. App. 529, 530 (364 SE2d 896) (1988). Unless evidence in the record demands a finding to the contrary, the trial court’s determination will not be reversed on appeal. State v. Betsill, 144 Ga. App. 267, 268 (240 SE2d 781) (1977). On the present record, we find no clear error in the trial court’s refusal to grant the appellants’ motion to suppress.

Judgment affirmed.

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

       The GBI agent did not arrest the Durdens at that point, but delayed the arrest and continued questioning for the admitted purpose of establishing more evidence of guilt, before he finally arrested the Durdens and gave them the warnings required by Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 1694) (1966). Even if the arrest should have arguably been made and Miranda warnings given when probable cause was first established, the delay did not affect the search of the vehicle and subsequent arrest because they were independently based on probable cause established pursuant to initial questioning after a valid Terry stop.

       Since the search was valid on probable cause grounds, we do not reach the issue of whether Mr. Durden consented to the search by giving the agent permission to “look in [his] car.” Compare State v. Diaz, 191 Ga. App. 830 (383 SE2d 195) (1989) (consent to “look inside” automobile not consent to full-blown search of interior).


text:
    A91A0367.
    DANIELS v. THE STATE.
    (405 SE2d 88)
   Andrews, Judge.

Daniels appeals the denial of his motion for discharge and acquittal based on failure to comply with his speedy trial demand under OCGA § 17-7-170.

Daniels, a Florida resident, was indicted in April 1990 for one count of selling cocaine and one count of trafficking in cocaine. A co-defendant was also charged in these two counts and with one additional count of selling. Attorneys Cox and Calhoun asked the district attorney not to issue a warrant for defendant’s arrest, but agreed that he would voluntarily appear for arraignment.

Defendant did not appear. Attorneys Cox and Calhoun filed their formal appearance in the case on May 30,1990. An arrest warrant was issued for Daniels that day, but counsel again asked the district attorney not to forward the warrant to Florida for execution, agreeing that Daniels would voluntarily present himself to the court on June 4.

While the court’s record did not reflect it, defendant contended that he filed a demand for speedy trial on May 31, 1990, the last day of the March term. His counsel so testified and the court determined the issue of discharge “pretermitting the issue of the filing of the motion.” We will do likewise. The demand was one of several motions filed, including a Brady motion and a motion to suppress the results of electronic surveillance.

The four terms of court begin in December, March, June, and September. Thus, defendant was indicted in the March term, his demand filed the last day of that term, and he was arraigned upon his appearance in Georgia on June 4, during the June term. His motion for discharge and acquittal was filed in the September term.

The court denied the motion on the basis that defendant, at the time his demand for trial was made, was not present in Georgia to pursue the trial he demanded as required by OCGA § 17-7-170, making the demand ineffective until June 4, 1990, giving the State until the end of the September term to try him.

Defendant’s sole enumeration alleges error in the following statement in the court’s order denying his motion for discharge: “The court notes that before defendant can be tried under indictment for the crime charged, he must be arraigned or waive arraignment. Hard-wick v. State, 231 Ga. 181 [(200 SE2d 728) (1973)].”

While that is a correct statement, that language was not the basis for the court’s denial of the discharge and was mere dicta as far as the conclusion of the court that defendant’s voluntary absence from Georgia when his demand was filed made the demand “ineffective” until his appearance in Georgia on June 4.

Decided March 13, 1991

Rehearing denied March 28, 1991

John R. Calhoun, William 0. Cox, for appellant.

Spencer Lawton, Jr., District Attorney, Elise 0. Gray, Assistant District Attorney, for appellee.

“In order for a demand for trial pursuant to the provisions of OCGA § 17-7-170 to serve as the predicate for an absolute acquittal because of the failure of compliance therewith, it is necessary that the filing comply with the provisions of the statute and that the defendant be physically present in the court to pursue the trial he has demanded.” Luke v. State, 180 Ga. App. 378, 379 (349 SE2d 391) (1986). Voluntary absence from the court amounts to a waiver of the demand for trial and defendant is not entitled to discharge and acquittal. Holmes v. State, 136 Ga. App. 572 (222 SE2d 121) (1975); Flagg v. State, 11 Ga. App. 37 (2) (74 SE 562) (1912).

There is no basis for reversal on the ground enumerated.

Judgment affirmed.

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

       Defendant is correct that an accused can waive arraignment through his conduct or that of his counsel without being physically present in court, Baskin v. State, 137 Ga. App. 840, 841 (225 SE2d 77) (1976), but that does not mean his presence is not required for purposes of the speedy trial demand.

       See in this regard Kirk v. State, 194 Ga. App. 801, 802 (392 SE2d 249) (1990).


author: McMurray, Presiding Judge. Sognier, Chief Judge,

text:
    A90A1626.
    JAMISON v. THE STATE.
    (405 SE2d 82)
   McMurray, Presiding Judge.

Defendant filed a motion to suppress after he was indicted for the offense of trafficking in cocaine. The evidence adduced at a hearing on the motion to suppress revealed the following:

On September 5, 1989, Agent Terrell Toles, an experienced law enforcement officer assigned to the Drug Enforcement Administration Task Force (“DEA”), and DEA Agents “Souza and Barnes” were on duty at Atlanta’s Hartsfield International Airport, monitoring “inbound and outbound flights looking for either drugs or contraband or money derived from drugs and contraband going through the airport.” The agents were wearing casual clothing (“jeans, tennis shoes, a tee shirt”) and they displayed no weapons. At about 7:45 that morning Agent Toles observed defendant and Karl Jamison deplane a flight from Miami, Florida, a “major drug source [city].” Agent Toles noticed defendant and Karl Jamison because they were wearing clothing commonly used by drug traffickers to conceal contraband on their bodies, i.e., “baggy clothes, baggy jean type pants and baggy loose fitting shirts with the shirttails hanging out over the crotch area.” Agent Toles overheard either defendant or Karl Jamison “ask for connecting flight information to Columbia, South Carolina.” He then watched the men walking towards the area of their connecting flight. Agent Toles went to an airline’s computer and “brought up a reservation record for [defendant and Karl Jamison] and . . . discovered . . . that they were both paid for with cash and that they were both one way reservations. [He also discovered that there] was no telephone call back listed on the reservation record [and that] the reservations had been made just a few hours prior to the flight’s departure from Miami.” This information aroused Agent Toles’ suspicion because drug couriers most commonly make one-way flight reservations a few hours before departure, they generally leave no telephone call back number and they most often complete the transactions with cash. This method of travel makes drug traffickers less “traceable ...” and enables them to be available upon a moment’s notice to “complete their drug transaction.”

Agent Toles informed Agents Souza and Barnes “as to what [he] found out from the computer record and [he] informed them that [he] was going to attempt to interview [the suspects].” The agents went to the area of Karl Jamison’s and defendant’s connecting flight and they “spotted the [suspects] as they were walking down B Concourse towards the gate that they were to depart from.” The agents approached defendant and Karl Jamison “[f]rom the front” and, as they “got close to them[, the suspects] walked inside the men’s rest room.” Agent Toles followed them into the rest room and observed Karl Jamison “at one of the urinals . . . and . . . watched [defendant] enter one of the stalls on the other side of the rest room.” Agent Toles went inside a nearby bathroom stall so that he could “hear anything that [defendant] might be doing. . . The agent did not notice any sounds from defendant’s stall that were consistent with the use of rest room facilities and this led him to suspect that defendant entered the stall in order to check “himself to make sure that if he was concealing anything inside his clothes that it was straight and secure and wouldn’t fall out of his pants. . . .”

Agent Toles exited the rest room and informed Agents Souza and Barnes of the suspects’ activities. “A couple of seconds later [, defendant and Karl Jamison] walked outside of the rest room and proceeded down the concourse towards their gate again.” The agents then “walked up along side [the suspects] and [Agent Toles] displayed [his] credentials to [defendant] and said, excuse, me, ... I [am] a police officer and [then] asked [defendant] if [he] could speak to him for a second.” Defendant “stopped and indicated that it was okay for [Agent Toles] to speak to him.” Agent Toles “asked [defendant] if [he] could see his airline ticket and [defendant] pointed towards Karl [Jamison] and said, he has my ticket. . . . Karl [Jamison then handed] a Delta [Airline] ticket envelope to Agent Souza. Inside that ticket envelope was [defendant’s] ticket. [Agent Toles] then said to Karl [Jamison], is it okay if I look at your ticket and he said, yes, it was and [Agent] Souza handed the envelope and all the contents to [Agent Toles].” Agent Toles inspected the airline tickets and confirmed the information he had obtained from the airline’s reservation computer. However, he also learned “that there was one baggage claim check stub attached to the ticket envelope indicating that there was just one piece of checked luggage between the two of them.” Agent Toles recognized this as another drug courier characteristic, i.e., the suspects were traveling light so as to be responsive to the last minute and unpredictable nature of the drug distribution business.

Agent Toles returned the tickets to the suspects and asked them “if they had any form of identification that [he] could look at.” Defendant and Karl Jamison produced their South Carolina driver’s licenses and, after inspecting the identification and returning it to the suspects, Agent Toles explained to the Jamisons that he and the other agents were “narcotics agents and [informed the suspects] that [they] were looking for drugs and narcotics and the proceeds of those coming through the airport. . . .’’At that point, defendant “became extremely nervous and fidgety. His breathing was real panted, his hands were quivering and he moved around from one spot to the next. Not a long way away, but just fidgeting back and forth from foot to foot.” Agent Toles noticed defendant’s changed behavior and was aware that “[e]verytime [he had] interviewed a drug courier that was in the process of couriering drugs [that the courier] got nervous.”

Agent Toles then “asked [the suspects] if it would be okay if [he or the other agents] could search them and their one piece of checked luggage. ...” Defendant’s nervous demeanor became even more pronounced and Karl Jamison “quickly spoke up and said, I don’t care if you search the suitcase, but I don’t want you to search us.” Agent Toles “asked him, do you have a problem being searched and . . . indicated that it’s just a quick pat of [the] body and [that the agents] can do it in private so that nobody will see it.” Defendant “then said to [Agent Toles], no, the suitcase is okay, but not us.” Agent Toles said “[t]here [is] a hallway just to the right, ... a small cove-way that leads to a jetway. [He] then pointed to this cove-way . . . and . . . said, it’s really no big thing, guys, we could go right over there and do it real fast. ...”

Defendant was getting “ready to leave [as Agent Toles] was talking [and, in the middle of the conversation, defendant] quickly jumped to his right and took off running up the concourse away from the direction that [the suspects] had been walking toward their gate. [Agent Toles] ran a few steps behind [defendant] and tackled him. . . .” Defendant was then subdued and Agent Toles searched defendant “and felt several hard, unnatural bulges around [defendant’s] groin and crotch area.” Defendant was then placed under arrest and taken into police custody. The objects found in defendant’s “crotch area” were identified as “[a]bout 2.2 pounds” of cocaine.

After the close of evidence, the trial court found probable cause for defendant’s arrest and search and specifically cited defendant’s flight from the law enforcement officers. Nonetheless, defense counsel pressed defendant’s version of the events leading to the search and arrest, but the trial judge stated that he didn’t “believe a thing [that] either [defendant or Karl Jamison] said when they contradicted the officer” and held that “it ripened into probable cause at the moment [defendant] ran taking in all the other facts and circumstances.”

Defendant’s motion to suppress was denied. The case was then tried before the trial court, without a jury, and defendant was found guilty of the offense charged. Defendant now appeals and contends the trial court erred in denying his motion to suppress. Held:

“Theoretically, there are at least three kinds of police-citizen encounters: verbal encounters involving no coercion or detention [which do not invoke the Fourth Amendment]; brief ‘stops’ or ‘seizures’ which must be accompanied by a reasonable suspicion; and ‘arrests’ which must be supported by probable cause. McAdoo v. State, 164 Ga. App. 23, 26 (295 SE2d 114), citing United States v. Berry, 670 F2d 583, 591 (5th Cir. 1982).” Verhoeff v. State, 184 Ga. App. 501, 502 (2), 503 (362 SE2d 85).

In the case sub judice, defendant argues the DEA agents did not have reasonable suspicion to make the initial encounter; that he was taken into police custody (arrested) without probable cause when Agent Toles “pointed to a coveway and with his hand on [defendant’s] shirt told [defendant and Karl Jamison that] they could go right over there and do [a search] real fast” and that defendant’s flight was insufficient to support probable cause for his search and arrest. Any challenge to the trial court’s finding that probable cause existed for defendant’s arrest, utilizing defendant’s version of the events leading to his arrest and reasoning that defendant’s “behavior in taking two running steps [does not evidence] the sort of consciousness of guilt to justify characterizing his behavior as ‘flight’ ” is illogical. Defendant’s arguments are supported only by his version of the events leading to his arrest and it would be illogical to ignore the trial court’s role as factfinder and to discount direct testimony supporting the trial court’s finding that probable cause existed for defendant’s search.

“On motion to suppress evidence, the trial judge sits as the trior of facts, hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. West v. West, 228 Ga. 397, 398 (185 SE2d 763).” State v. Swift, 232 Ga. 535 (1), 536 (207 SE2d 459). See Santone v. State, 187 Ga. App. 789 (1), 790 (371 SE2d 428); Jones v. State, 184 Ga. App. 328 (361 SE2d 693); and State v. Peacock, 178 Ga. App. 96, 97 (342 SE2d 364).

In the case sub judice, the DEA agents’ initial encounter with defendant did not amount to a brief “stop” or “seizure” which required reasonable suspicion. “[Ajirport stops of individuals by police, if of extremely restricted scope and conducted in a completely non-coercive manner, do not invoke the Fourth Amendment.” United States v. Berry, 670 F2d 583, 594, supra. Agent Toles testified that the DEA agents were dressed casually and that their weapons were not displayed on the morning that they approached defendant and Karl Jamison. He further testified that the encounter with defendant and Karl Jamison was of “a conversational tone . . .”; that the conversation was not threatening or coercive; that neither defendant nor Karl Jamison attempted to terminate the conversation; that the suspects did not indicate that they did not wish to talk to the agents; that the suspects did not attempt to leave before defendant “quickly jumped up . . .” and ran and that nothing was done “to objectively manifest [to the suspects that they] weren’t free to leave.” This testimony and testimony showing the consensual nature in which defendant and Karl Jamison submitted to Agent Toles’ questioning was sufficient to authorize a finding that defendant was free to leave throughout the encounter with the DEA agents and that defendant’s Fourth Amendment rights were not then violated. See Calixte v. State, 197 Ga. App. 723 (2) (399 SE2d 490), and Verhoeff v. State, 184 Ga. App. 501, 502 (2), supra. Further, we agree with the trial court that “it ripened into probable cause at the moment [defendant] ran taking in all the other facts and circumstances.” The evidence which supports this finding is Agent Toles’ testimony that defendant exhibited several characteristics of a typical drug courier; that defendant exhibited untypical behavior inside a public rest room; that defendant displayed anxiety upon learning that the DEA agents were drug enforcement officers, i.e., defendant became “fidgety[, his] breathing was real panted, his hands were quivering and he moved around from one spot to the next[,] back and forth from foot to foot” and that defendant “quickly jumped to the right and took off running . . .” in a direction inconsistent with defendant’s connecting flight while Agent Toles was talking to defendant and Karl Jamison about how a consensual search could be performed. Consequently, the trial court did not err in denying defendant’s motion to suppress. See Travis v. State, 192 Ga. App. 695, 696 (385 SE2d 779).

Judgment affirmed.

Banke, P. J., Birdsong, P. J., Pope, Beasley and Andrews, JJ., concur. Sognier, C. J., Carley and Cooper, JJ., dissent.

Sognier, Chief Judge,

dissenting.

I dissent because the arrest of Marvin Keith Jamison was without probable cause and therefore his motion to suppress should have been granted. This court has addressed the effect of flight on probable cause to arrest in the context of airport stops. See Brown v. State, 188 Ga. App. 417 (373 SE2d 99) (1988) (defendant properly arrested when, after consenting to body search, he decided to call attorney first, walked nervously past telephones 20 to 30 yards away, was followed by agents from one airport concourse to another concourse, passing other telephones, before running from officers up an escalator) and Banks v. State, 187 Ga. App. 280, 281 (1) (370 SE2d 38) (1988) (after voluntarily disclaiming any ownership of totebag he was carrying, defendant first started to go with officers to discuss the matter then turned and bolted). See also Brown v. State, 190 Ga. App. 38 (378 SE2d 357) (1989) (defendant properly arrested as a party to the crime based on the behavior of defendant’s travelling companion who assaulted a DEA agent and fled) and State v. Reid, 247 Ga. 445 (276 SE2d 617) (1981) (defendant consented to body search, then ran into parking lot, discarding bag with contraband 100 feet from place where apprehended). The facts of these cases are in marked contrast to the evidence adduced at the hearing on appellant’s motion to suppress.

The transcript of the hearing establishes that appellant and his brother, Karl Jamison, were stopped by three DEA agents because the brothers exhibited several characteristics of the drug courier profile and because Agent Terrell Toles had not overheard appellant make any noise while inside an airport bathroom stall. It is uncontro-verted that being stopped in the airport by three DEA agents did not unduly alarm appellant, who appeared “fairly calm” to Toles. It is also uncontroverted that both appellant and his brother cooperated fully with the agents, telling the agents their correct names, allowing the agents to inspect their airline tickets, which were in their correct names, and providing the agents, at the agents’ requests, with South Carolina driver’s licenses identifying them as the persons named on the tickets. The only additional piece of suspicious information raised by the stop was Toles’ discovery that the two brothers had only one piece of checked baggage between them.

Toles admitted at the hearing that the stop of appellant and his brother demonstrated no irregularity, so he requested that the brothers submit to a consensual search. Toles testified that Karl responded “quickly” that the agents could search the luggage but could not search them. Toles responded by asking if Karl had a problem being searched and indicated that it was “just a quick pat of your body and we can do it in private so that nobody will see it.” After appellant, in turn, told Toles “no, the suitcase is okay, but not us,” Toles nevertheless pointed to a small hallway to their right and said “it’s really no big thing, guys, we could go right over there and do it real fast.” It was during this conversation about searching appellant’s person that Toles noticed that appellant had become extremely nervous and fidgety, shifting back and forth from foot to foot. Toles stated that up to the point where appellant refused a body search the agents had done nothing to manifest to the brothers that they were not free to leave and that the brothers had not indicated they wanted to end the conversation or tried to leave. However, as Toles was making his third request that the brothers submit to a body search, appellant “quickly jumped to his right and took off running up the concourse” in the direction of the rest room and away from his departure gate. Toles’ own testimony established that the running involved was “[j]ust a couple of steps” before appellant was tackled and knocked cleanly to the floor. Appellant was then handcuffed and body searched, leading to the discovery of the contraband.

Toles testified, based on his experience, that the circumstances surrounding the stop of appellant did not present the DEA agents with an articulable suspicion that appellant was committing a crime until the moment appellant “broke and ran.” The trial court denied appellant’s motion because “taking in all the other facts and circumstances,” Toles had an articulable suspicion which ripened into probable cause to arrest at the moment appellant ran.

“It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion, [cit.], though the arresting officer need not have in hand evidence which would suffice to convict. The quantum of information which constitutes probable cause — evidence which would ‘warrant a man of reasonable caution in the belief’ that a felony has been committed, [cit.] — must be measured by the facts of the particular case. The history of the use, and not infrequent abuse, of the power to arrest cautions that a relaxation of the fundamental requirements of probable cause would ‘leave lawabiding citizens at the mercy of the officers’ whim or caprice.’ [Footnote omitted; cit.]” Wong Sun v. United States, 371 U. S. 471, 479 (83 SC 407, 9 LE2d 441) (1963).

The law is clear that Toles and the other officers were entitled to detain appellant and his brother for the limited amount of time necessary to investigate the circumstances invoking suspicion, primarily the drug courier profile characteristics the brothers exhibited. However, because our courts have recognized that the drug courier profile is applicable as much to innocent as to suspect individuals, Bothwell v. State, 250 Ga. 573, 578 (300 SE2d 126) (1983); see also Del Rio v. State, 171 Ga. App. 381, 383 (1) (320 SE2d 236) (1984), the courts have restricted the scope of such a stop to obtaining identification and asking those questions reasonably related to the circumstances that justified the initiation of the momentary stop. Pullano v. State, 169 Ga. App. 377, 380 (312 SE2d 857) (1983). Here, appellant and his brother were stopped, the agents made their inquiries, appellant fully cooperated with the officers, and no irregularities were uncovered by the agents. Since it is well established that exhibition of certain characteristics listed on the drug courier profile does not automatically establish reasonable suspicion for an arrest, United States v. Berry, 670 F2d 583, 600 (5th Cir. 1982), followed in Bothwell, supra, as Agent Toles acknowledged in his testimony, an examination of those “other facts and circumstances” considered by the trial court reveals that they presented no legal basis for arresting appellant.

Turning to appellant’s nervousness and foot shifting, stressed by the majority, since it is uncontroverted appellant was fairly calm up to the point Toles requested he voluntarily consent to a body search, and since Toles testified that Karl Jamison “quickly” declined Toles’ request, it would appear that this suspicious nervousness arose only when Toles began making his repeated requests for the brothers to submit to a body search. It also appears that after having fully cooperated with Toles up to this point, appellant did not “break and run” until the explicit refusals by both appellant and his brother to consent to such a search had been ignored and Toles had indicated to appellant a nearby hallway where the body search could be conducted.

Since Toles testified that appellant was not in custody, that he had no reasonable basis to arrest appellant, and that he could not require appellant to submit to a body search, the inescapable conclusion is that from Toles’ point of view, appellant was absolutely free to leave. As a result, there existed nothing from which Toles could have thought appellant was “breaking” when appellant “ran” two steps. “The term ‘flight’ signifies not merely a leaving, but a leaving . . . under a consciousness of guilt and for the purpose of evading arrest, and the mere going away from the scene of a crime is not always flight in the sense that evidence is thus furnished of a consciousness of guilt.” 22A CJS Criminal Law, § 743. See, e.g., Renner v. State, 260 Ga. 515 (3) (a) (397 SE2d 683) (1990) (evidence indicated that defendant’s departure “was occasioned by a consciousness of guilt”). The reasoning behind that definition likewise applies to the mere “going away from” the presence of a law enforcement officer. See Richardson v. State, 113 Ga. App. 163, 164 (2) (147 SE2d 653) (1966). However, while flight, in connection with other circumstances, can constitute probable cause for arrest without a warrant, see Green v. State, 127 Ga. App. 713, 715 (194 SE2d 678) (1972), appellant’s behavior in taking two running steps does not evidence the sort of consciousness of guilt to justify characterizing his behavior as “flight.”

Decided March 12, 1991

Rehearing denied March 29, 1991

William E. Frey, for appellant.

An explanation for appellant’s behavior is presented not only on the basis that appellant, not being in custody, was legally free to depart at any time (and, arguably, in any manner) he chose, or on the fact that Toles’ testimony, having established that from his point of view he believed appellant was free to depart, leaves uncontroverted appellant’s testimony that his intent in moving from Toles was not to flee. The evidence adduced at the hearing also offers another explanation. It is based on Toles’ testimony that after appellant and his brother had cooperated with the officer and after they had explicitly denied his requests made to each of them to allow him to search their bodies, an invasion of their privacy to which the brothers were not legally required to submit, Toles ignored their responses and persisted, even to the point of indicating to the brothers where the search could be conducted. It was at that point, according to Toles, that appellant “broke and ran.” However, as with the fleeing defendant in Wong Sun, supra, appellant’s flight of two steps signified a consciousness of guilt no more clearly than it did a natural desire to avoid the persistence of an officer who refused to take “no” for an answer.

Given the cooperation provided by appellant and his brother, their open acknowledgment of each other and their relationship, compare Brown, 190 Ga. App. at 39, the legal identification they produced, compare Banks, supra at 281 (1), and the lack of nervousness they displayed until Toles pressed for a body search, compare Brown, 188 Ga. App. at 417-418, appellant’s two running steps from the noncustodial presence of an officer who would not accept appellant’s refusal as an answer could not have warranted a man of reasonable caution in the belief that a felony had been committed. Wong Sun, supra at 479. “A contrary holding here would mean that a vague suspicion could be transformed into probable cause for arrest by reason of ambiguous conduct which the arresting officers themselves have provoked. [Cit.]” Id. at 484. Therefore, I would reverse the trial court’s denial of appellant’s motion to suppress.

I am authorized to state that Judge Carley and Judge Cooper join in this dissent.

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


author: Pope, Judge. Beasley, Judge,

text:
    A90A1654, A90A1655.
    SMITH v. THE STATE (two cases).
    (405 SE2d 107)
   Pope, Judge.

In Case No. A90A1654, appellant Danny Smith appeals his conviction for attempted armed robbery; in Case No. A90A1655, Smith appeals his conviction for armed robbery. The two crimes occurred on separate dates and were the subject of separate indictments, but were tried in a single trial.

1. Smith first argues that the manner of consolidation of the two indictments for trial violated Uniform Superior Court Rule 31.3. However, this objection, which was made orally during a pre-trial motion hearing and not before the judge who tried the case, was not transcribed. Therefore, we have nothing to review. Williams v. State, 188 Ga. App. 496 (3) (373 SE2d 281) (1988).

2. “[Smith] next argues that the trial court erred in denying his motion for severance, relying upon Bradford v. State, 126 Ga. App. 688 (191 SE2d 545) (1972), for the proposition that consolidation of separate indictments is impermissible unless the defendant has consented to such. However, the Supreme Court has . . . held as follows: ‘The underlying consideration regarding the issue of a joint trial on two or more indictments is whether undue or great risk of prejudice from a joint disposition of charges would result. Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975). Where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the discretion of the trial judge. Coats v. State, 234 Ga. 659 (217 SE2d 260) (1975).’ Jackson v. State, 249 Ga. 751, 758 (295 SE2d 53) (1982). This court has also ruled, subsequent to the 1972 Bradford decision, that the decision to grant a severance lies within the discretion of the trial court even where the offenses are separately indicted. See Green v. State, 159 Ga. App. 28 (283 SE2d 19) (1981); Schamber v. State, 152 Ga. App. 196 (262 SE2d 533) (1979).” Little v. State, 165 Ga. App. 389, 390-391 (2) (300 SE2d 540) (1983). It is clear that the absolute rule set out in Division 1 of Bradford v. State, 126 Ga. App. 688 (191 SE2d 545) (1972) that separate indictments may never be tried together absent the consent of the defendant, is no longer viable. We hereby overrule it.

The question in the present case is whether the trial court abused its discretion in consolidating the two indictments for trial. We think not. The evidence showed the two crimes were part of a single scheme or plan. The armed robbery occurred on October 24, 1988, at a Majik Market near Smith’s residence. Smith entered the store when only the female clerk was present. Feigning a purchase, he told the clerk: “This is a robbery.” The clerk testified that Smith had what appeared to her to be a gun concealed under his shirt. When the clerk hit the wrong button and the register made noise, Smith accused her of setting an alarm. She denied this, gave him money, got on the floor as ordered and Smith fled. Two months later, in the same area, Smith entered Nadine’s, a bar, when only the female bartender was present. He pretended to be seeking a job. When told there was no opening, but that he could leave his name and number, he pretended to write on a tablet given to him by the bartender. Then he told her he was robbing her. The bartender noticed he had his hand in the pocket of his jacket and something was sticking out. She backed to the register. As she tried to open it, it made a lot of noise. Smith accused her of setting an alarm and fled when he saw her pick up the phone. Each of the two women positively identified Smith as the man who confronted her. In addition, testimony was introduced showing that Smith was seen walking back and forth in front of a hair salon in the same shopping center as Nadine’s on the day the attempted armed robbery at Nadine’s occurred. Smith loitered outside the hair salon until only the female proprietor was left inside. Because Smith’s behavior (walking back and forth and staring inside the salon) made her nervous, she locked the door prior to closing. Smith could see her through the plate glass. When she was alone, he rapped on the glass and asked if she cut black men’s hair. She said no and began to turn oif the lights to leave. She testified Smith stood where he could see her and indicated to her through gestures that he could see her. She called police to get an escort to her car. The robbery attempt at Nadine’s occurred shortly thereafter.

The evidence shows a common plan to rob establishments in which only a lone female was present. Smith acted alone and operated similarly in each case. The separate instances meet the requirements of similar offenses. The trial court did not err in allowing the two indictments to be tried together.

3. Nor did the trial court err in denying Smith’s motion for mistrial based upon evidence of a map showing the location of both the Majik Market and Nadine’s introduced during the phase of the trial dealing with the armed robbery. The trial court gave curative instructions to the jury that each offense was to be considered separately and judged solely on the evidence relating to that indictment and instructed the prosecution not to refer to the map again. Based upon the reasoning set out in Division 2, supra, and upon the instructions of the trial court to the jury, we find no error.

Judgments affirmed.

Sognier, C. J., McMurray, P. J., Banke, P. J., Birdsong, P. J., and Andrews, J., concur. Parley, Beasley and Cooper, JJ., dissent.

Beasley, Judge,

dissenting.

I respectfully dissent because Smith was entitled to separate trials on the two independent incidents of October 24, 1988, and December 27, 1988, even if they were similar.

They were not “crimes arising from the same conduct” so as to be governed by OCGA § 16-1-7, concerning which the court has discretion to order separate trials. Nor were they “ ‘a series of acts connected together or constituting parts of a single scheme or plan.’ ” Dingler v. State, 233 Ga. 462, 463 (211 SE2d 752) (1975). Thus, according to Dingler, defendant would have a right to severance if the charges had been joined in the same indictment. His right to object to consolidation, when the charges are in separate indictments, can be no less. Dingler involved separate crimes of the same general nature or species but different times, places, and persons, as here.

Bradford v. State, 126 Ga. App. 688 (1) (191 SE2d 545) (1972), addressing consolidation, as here, and not severance, is accurate law. In Loftin v. State, 230 Ga. 92, 93 (195 SE2d 402) (1973), the Court “recognize[d] the rule that a defendant cannot be tried simultaneously under two or more indictments for unrelated offenses without his consent, as stated in Bradford v. State, 126 Ga. App. 688 (191 SE2d 545) and as recognized by this court in numerous cases, . . .” As said there, this applies in jury cases, which this case is.

Jackson v. State, 249 Ga. 751, 757-758 (6) (295 SE2d 53) (1982), applied the rule of discretion to a case wherein the four crimes “were part of a continuous series of actions and conduct.” The Court reiterated that it is in such cases, “[w]here the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, [that] severance lies within the discretion of the trial judge.” That is not the situation here. Our recent case of Bridges v. State, 195 Ga. App. 851, 852 (2) (395 SE2d 30) (1990), distinguishes Bradford, because the charges in the two indictments against Bridges arose out of the same identical conduct and thus were governed by the prescription of OCGA § 16-1-7, which mandated consolidation absent a discretionary severance. Again, that is not the case here, and the decision in this case must follow that in Bradford. Continuing sales of the same type of contraband, which was the subject of the single trial in Little v. State, 165 Ga. App. 389, 390 (2) (300 SE2d 540) (1983), were properly denied severance because they “constitute[d] parts of a single scheme or plan.” Id. at 391. An armed robbery of one person at one store, and an attempt to commit an armed robbery against another person three months later at another location, do not comprise a single scheme or plan. Two robberies by snatching, two days apart, were regarded as separate and distinct offenses which could be tried together, with defendant’s consent, in Snell v. State, 158 Ga. App. 860 (282 SE2d 408) (1981). Snell, however, waived the right. Although defendant could consent to have them tried together, as occurred in State v. Shuman, 161 Ga. App. 304 (287 SE2d 757) (1982), and by waiver in Snell, he did not do so and instead objected. For this reason, he is entitled to a new trial.

Decided March 15, 1991

Rehearing denied March 29, 1991

Caleb B. Banks, for appellant.

Robert F. Mumford, District Attorney, Cheryl F. Custer, Assistant District Attorney, for appellee.

I am authorized to state that Judge Carley and Judge Cooper join in this dissent.


author: Beasley, Judge. Pope, Judge,

text:
    A90A1668, A90A1669.
    GILLIS v. GOODGAME; and vice versa.
    (404 SE2d 815)
   Beasley, Judge.

Nancy Gillis sued her physician (and his professional association) and James Goodgame, a radiological physicist, alleging defendants administered unnecessary radiation therapy to her after surgery for breast cancer. The affidavit of an expert witness was filed contemporaneously with the complaint, under OCGA § 9-11-9.1, but the affidavit addressed only the alleged professional negligence of the physician. Defendant Goodgame brought a motion to dismiss the claim against him, or in the alternative to grant summary judgment in his favor. His basis was that the services he rendered to plaintiff were professional services and plaintiff’s complaint alleged he had committed professional malpractice within the meaning of OCGA § 9-11-9.1 but failed to meet that statute’s requirements as to her claim against him. The trial court concluded from the record that defendant Goodgame “engaged in the practice of medicine as described in OCGA § 43-34-20 (3),” that plaintiff’s complaint alleged Goodgame was liable for medical malpractice failed to meet the requirements of OCGA § 9-11-9.1 as to Goodgame. Although the order shows on its face that evidence outside the pleadings was considered, making the motion one for summary judgment, the court ordered plaintiff’s complaint against Goodgame “dismissed without prejudice.” Later, the trial court ordered entry of final judgment in favor of Goodgame pursuant to OCGA § 9-11-54 (b). Plaintiff appeals (Case No. A90A1668) and defendant Goodgame cross-appeals (Case No. A90A1669).

Case No. A90A1669

We first address Goodgame’s cross-appeal because he argues that plaintiff’s appeal should be dismissed.

1. Plaintiff Gillis attempted to bring to this court a direct appeal of the December 1, 1989, order dismissing her complaint against defendant Goodgame. A notice of appeal was filed January 16, 1990 and this court docketed the case as Case No. A90A0874. By order dated April 2, 1990, however, the appeal was dismissed for lack of jurisdiction because the order was not one from which a direct appeal could be taken pursuant to OCGA § 5-6-34. On April 11,1990 the trial court issued its order of final judgment. It forms the basis for the current appeals. Goodgame contends the order of final judgment is a nullity because it was issued before this court transmitted the remittitur to the trial court by order dated April 13.

The reason a lower court order is void if it is entered before re-mittitur from the appellate court is that the lower court lacks jurisdiction to enter further orders until jurisdiction is returned to the lower court. See Marsh v. Way, 255 Ga. 284 (1) (336 SE2d 795) (1985); Talley v. City Tank Corp., 158 Ga. App. 130 (1) (279 SE2d 264) (1981). Even though this court docketed the earlier appeal of this case, the appeal was dismissed because this court lacked jurisdiction. Jurisdiction is not conferred by the improper filing of a notice of appeal but is conferred only by constitution and statute.

Thus, even though the appeal was docketed, jurisdiction never attached in this court. Even though the order granting final judgment to Goodgame was entered prior to the lower court’s receipt of the re-mittitur, the trial court did not lack jurisdiction to enter the judgment. In actuality, the trial court never lost jurisdiction of the case.

2. We reject Goodgame’s argument that the dismissal without prejudice is not a judgment which can be made final pursuant to OCGA § 9-11-54 so that plaintiff’s direct appeal is improper and should be dismissed. Dismissal without prejudice does not operate as an adjudication on the merits. OCGA § 9-11-41. Even though a dismissal without prejudice may allow the plaintiff to recommence his claim at a later date, it is nonetheless a dismissal of the subject action. Thus, it can be made a final judgment in a case in which other claims remain pending where, as here, the trial court expressly determines there is no just reason for delay. OCGA § 9-11-54 (b). Moreover, since the order is actually a grant of summary judgment to defendant Goodgame, it is an adjudication on the merits. No grounds exist for dismissing plaintiff’s appeal.

Case No. A90A1668

3. The trial court found, based on the deposition testimony of plaintiff’s radiologist, that defendant Goodgame engaged in the practice of medicine as defined by OCGA § 43-34-20 (3) so that an expert affidavit was required by OCGA § 9-11-9.1 because professional negligence was alleged.

Whether the trial court erred in finding that the certified radiological physicist was engaged in the practice of medicine when his allegedly negligent acts occurred is immaterial to the determination of whether an expert affidavit was required. It is true that since the legislature’s adoption of the rule of practice there has been no judicially perceived question that OCGA § 9-11-9.1 applies to medical malpractice. That may be because it was enacted as section 3 of the Medical Malpractice Act of 1987. See Housing Auth. of Savannah v. Greene, 259 Ga. 435, 437 (3) (383 SE2d 867) (1989). What has been the subject of debate is whether it applies to all professions or only to some and, if the latter, then to which professions and by what rationale.

The procedural prerequisite to malpractice suits became effective July 1, 1987. Ga. L. 1987, p. 887, sec. 3. It has been applied to the legal profession, Barr v. Johnson, 189 Ga. App. 136 (375 SE2d 51) (1988); Padgett v. Crawford, 189 Ga. App. 568 (376 SE2d 724) (1988), and Frazier v. Merritt, 190 Ga. App. 832 (380 SE2d 495) (1989); the engineering profession, Precision Planning v. Wall, 193 Ga. App. 331 (387 SE2d 610) (1989), and Kneip v. Southern Engineering Co., 260 Ga. 409 (395 SE2d 809) (1990); and the architectural profession, Housing Auth. of Savannah v. Gilpin & Bazemore/Architects &c., 191 Ga. App. 400 (381 SE2d 550), affirmed sub nom, Housing Auth. of Savannah v. Greene, supra. There is no case alleging malpractice which holds that the affidavit requirement does not apply to a given profession.

The plain language rule of statutory construction has been repeatedly applied to this procedural rule. The statute states clearly: “(a) In any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” OCGA § 9-11-9.1.

A year after the Act’s effective date, the Court of Appeals expressly held in Barr v. Johnson, supra at 137: “This statute applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.”

In Housing Auth. of Savannah v. Gilpin & Bazemore/Architects &c., supra, 401, the Court of Appeals recited the plain language of the statute and took it to apply to architectural services because “Architecture is a professional service which must be exercised with that degree of care and skill as is ordinarily employed by the profession under similar conditions and circumstances.” It cites as authority Hudgins v. Bacon, 171 Ga. App. 856, 859 (321 SE2d 359) (1984), a professional liability case against a contractor for negligence in building a house. In Hudgins, the court recognized that the law imposed upon “ ‘persons performing architectural, engineering, and other professional and skilled services’ ” a standard of care as is “ ‘ordinarily employed by their respective professions.’ ” Ibid. In reviewing the Housing Authority case, the Supreme Court agreed with the Court of Appeals, finding that the practice of architecture is recognized as a profession under Georgia statutory law (OCGA § 43-4-1 et seq; OCGA § 14-7-2 (2)), and that caselaw holds that “persons performing architectural and engineering services” are bound by professional standards of care.

In Greene, supra at 437, the Supreme Court explicitly explained its application of the plain language rule to this statute, and held that the statute “applies to ‘any action for damages alleging professional malpractice’ on the part of an architect or other professional.” The Supreme Court also reiterated this “plain language” position in Kneip, supra, requiring the affidavit when the allegations are malpractice and not simple negligence.

The legislature has not rewritten the statute since its application to malpractice other than medical, although invited to do so if it viewed the repeated judicial construction as misinterpretation of intent. See Precision Planning v. Wall, supra, special concurrence, and Kneip, supra at 411 (4).

The expert’s affidavit prerequisite serves a salutary purpose, which “is to reduce the number of frivolous malpractice suits being filed, . . .” 0-1 Doctors Memorial Holding Co. v. Moore, 190 Ga. App. 286, 288 (1) (378 SE2d 708) (1989). The plaintiff is simply required to show at the outset that it is not a frivolous suit. This serves to prevent putting a professional to great expense and adversely affecting his or her professional reputation unjustifiably. It also serves to prevent the clogging of the courts with such suits, which merely increase the costs of operating the courts and delay the resolution of meritorious suits. It simply contemplates that parties allegedly damaged by malpractice show up front, by expert’s affidavit, that they have some evidence of malpractice, which by its nature can “be established only by professional or expert testimony.” Kneip, supra at 410; Housing Auth. of Savannah, supra, 259 Ga. at 436 (1).

The statute makes no exceptions. It does not tie the definition of “profession” from the chapter on Professional Corporations to it, as the dissent has done. That chapter governs those occupations which are permitted to form professional corporations, a separate entity for business and tax purposes; it has nothing to do with the substance of malpractice, except a peripheral relationship, i.e., the professional corporation protects the professional’s personal assets. OCGA § 9-11-9.1, on the other hand, is remote in concept and placement in the Code; it is in the title on the Civil Practice Act, which governs the procedure for bringing and maintaining lawsuits.

The same is true of OCGA § 14-10-2 (2), which merely gives a definition of “professional service” for that chapter. The chapter is The Georgia Professional Association Act. It governs those associations and limits the professions which may form them, to professions which are licensed.

Both of these provisions are in the title on Corporations, Partnerships, and Associations, which has nothing to do with the rules of practice and procedure in civil cases. And neither of them covers all professions from which claims of malpractice might arise. Yet the procedural rule applies “In any action for damages alleging professional malpractice. . . .” Plaintiff’s complaint against Goodgame, by its nature and its language, alleges such.

Summary judgment to the radiological physicist was authorized.

4. The remaining enumeration is not meritorious.

Judgment affirmed.

Birdsong, P. J., Carley, Cooper and Andrews, JJ., concur. Sognier, C. J., McMurray, P. J., Banke, P. J., and Pope, J., concur in part and dissent in part.

Pope, Judge,

concurring in part and dissenting in part.

I concur in the opinion in Case No. A90A1669 but respectfully dissent to the opinion in Case No. A90A1668.

Defendant Goodgame argues that as a radiological physicist he is a professional and that for plaintiff to bring an action against him for negligent practice of that profession she. is required by OCGA § 9-11-9.1 to file with her complaint an affidavit supporting her claim against him. The issue presented by this case is whether the requirements of OCGA § 9-11-9.1 should be extended to a complaint for negligence against a radiological physicist. I conclude the statute was not intended to apply in such a case as this.

“[OCGA § 9-11-9.1] applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.” Barr v. Johnson, 189 Ga. App. 136, 137 (375 SE2d 51) (1988). The only Georgia statute in which “profession” is defined is OCGA § 14-7-2 (2), which lists only 16 occupations including “medicine and surgery” but not the occupation of defendant Goodgame. The term “professional service” is defined at OCGA § 14-10-2 (2) as “any type of professional service which may be legally performed only pursuant to a license from a state examining board pursuant to Title 43. . . .” The majority opinion rejects any analysis of the term “professional malpractice” which refers to these two sections of the Georgia Code. The majority opinion acknowledges, however, that the Georgia Supreme Court in Housing Auth. of Savannah v. Greene, 259 Ga. 435 (383 SE2d 867) (1989), referred to these other, unrelated, statutes in reaching the conclusion that architecture is a profession which is therefore included within the expert affidavit requirement. Justice Weltner has also recently suggested “that the term ‘professional’ should be limited for purposes of the requirements of OCGA § 9-11-9.1” by the definitions found at OCGA §§ 14-7-2; 14-10-2 and 43-1-24. See Creel v. Cotton States Mut. Ins. Co., 260 Ga. 499, 500 (397 SE2d 294) (1990) (Weltner, J., concurring specially).

Defendant Goodgame testified at his deposition that he was not required to be licensed or certified to practice his occupation by any state authority. The practice of radiological physics is certainly a learned skill but it is neither a “profession” as that term is defined by statute nor a service requiring a state license or certificate to practice. “The foregoing limitations suggest that [Goodgame] is not a ‘professional’ within the meaning of OCGA § 9-11-9.1.” Id.

Even though the expert affidavit statute has been interpreted by the appellate courts as applying to complaints against architects and engineers (see Housing Auth. of Savannah v. Greene, supra) and attorneys at law (see Padgett v. Crawford, 189 Ga. App. 568 (376 SE2d 724) (1988) and Barr v. Johnson, supra), the Georgia Supreme Court has recently acknowledged the courts may have interpreted the statute more broadly than the legislature intended when it enacted the statute as part of the Medical Malpractice Act of 1987. See Kneip v. Southern Engineering Co., 260 Ga. 409 (4) (395 SE2d 809) (1990). Therefore, I do not believe the requirements of the expert affidavit statute should be extended to this action alleging negligence in the performance of the services of a radiological physicist.

According to the majority opinion, in any case in which a plaintiff would be required to call an expert witness to prove the allegation of negligent performance of a skilled service, the plaintiff would be required to file the affidavit of an expert witness with the complaint. In my opinion, OCGA § 9-11-9.1 should not be extended this far. A complaint is not brought within the purview of OCGA § 9-11-9.1 simply because it alleges negligent performance of a skilled service and will require the testimony of an expert witness to establish the defendant did not meet the reasonable degree of care and skill ordinarily employed in the service.

Decided March 15, 1991

Rehearing denied March 29, 1991

Berrien L. Sutton, Ronald W. Hallman, for appellant.

Beckmann & Pinson, William H. Pinson, Jr., for appellee.

I am authorized to state that Chief Judge Sognier, Judge Mc-Murray and Judge Banke join in this opinion.

       To say it is “professional” malpractice is redundant. Webster’s Third International Dictionary defines “malpractice” as “a dereliction from professional duty whether intentional, criminal, or merely negligent by one rendering professional services that results in injury, loss, or damage to the recipient of those services or to those entitled to rely upon them or that affects the public interest adversely; the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services or to those entitled to rely upon them.”

        Kneip, supra at 410 (3), recognizes that suits against a professional which allege only simple negligence and not dereliction of professional duty do not require affidavits.