text:
    A93A0473.
    MIZE v. THE STATE.
    (432 SE2d 621)
   McMurray, Presiding Judge.

Defendant William Mark Mize and co-defendants Myra Jean Porter and Ricky Lane Williams were tried jointly before a jury and convicted of the arson of a house owned by co-defendant Porter. The verdict was entered on March 27, 1987, and defendant filed, pro se, a timely motion for new trial. Co-defendant Williams also filed a motion for new trial which was denied via an order entered July 5, 1989. He then appealed in Williams v. State, 195 Ga. App. 376 (393 SE2d 506), and this Court entered the following account of the evidence adduced at trial: “Tim Summers, a fire investigator, testified that he examined the house after the fire and found ‘pour patterns’ from flammable liquids tattooed into the floor by the fire, and that he concluded there was more than one point of origin for the fire. The latter was confirmed by Thomas Beck, Assistant Fire Chief of the City of Commerce, who testified that the rear bedroom and the laundry room appeared to be separate points of origin of the fire.

“Terry Howard and Robert McGinley testified that on the night of the fire, they were in front of the Porter house on their way to visit a neighbor when they met a man carrying a paper bag who pointed a gun at them. They continued on to the neighbor’s home, and turned and saw the man, later identified as [co-defendant Williams], enter the Porter home. When they had completed their visit, about 30 or 40 minutes later, Howard and McGinley saw [co-defendant Williams] running down the street toward a small green Ford automobile which picked him up. About 5 or 10 minutes later, Howard and McGinley noticed fire trucks going in the direction of the neighborhood they had just visited and followed them back to the scene of the fire. They both testified they saw [co-defendant] Porter, [defendant] Mize, and others arrive at the scene in Porter’s car, a green Ford which they identified as the same car they had seen pick up [co-defendant Williams].

“Douglas McGinnis testified that he had pled guilty to the charge of conspiracy to commit arson stemming from the fire at the Porter house. He implicated [co-defendant] Porter, [defendant] Mize, and [co-defendant Williams] as having conspired to burn down the house, and testified that [co-defendant Williams] was brought in from Alabama to help [defendant] Mize. Pam Patrick, [co-defendant] Myra Jean Porter’s sister, testified she was present when [co-defendant] Porter, [defendant] Mize, and McGinnis discussed their plan to burn the house, and [co-defendant Williams] was brought in because [defendant] Mize felt he could not do it alone. She and others, including [defendant] Mize, drove to Boaz, Alabama to get [co-defendant Williams] and bring him back to Georgia to assist [defendant] Mize. She testified that [defendant] Mize had told her he and [co-defendant Williams] had put flammable liquid in bottles and put rags in them and had thrown them through windows in the laundry room and the back bedroom.” Id. at 377 (2).

Defendant’s pro se motion for new trial was not considered until after the filing of an amended motion for new trial by defendant’s court-appointed attorney in April 1992. Thereafter, the trial court considered the amended motion for new trial and, on August 3, 1992, entered an order denying the amended motion for new trial. This appeal followed. Held:

1. In his first enumeration, defendant contends the trial court erred in failing to allow his attorney to cross-examine Pam Patrick, co-defendant Porter’s sister, regarding criminal charges pending against the witness in Madison County, Georgia. This contention is not supported by the record. The trial transcript reveals that defense counsel was given full and fair opportunity to cross-examine Pam Patrick as to criminal charges pending against her in Madison County, Georgia.

2. Next, defendant contends the trial court erred in refusing evidence that co-indictee Doug McGinnis was involved in prior similar acts of arson, arguing that such evidence would have impeached Mc-Ginnis’ testimony that he is not experienced in setting fires and that he played a minor role in the arson of the Porter house. This contention is without merit.

First, the record does not show that the trial court limited defense counsel’s cross-examination of McGinnis in the manner alleged. Second, defense counsel offered no proof at trial that McGinnis actually committed prior criminal acts of arson so as to be admissible for impeachment purposes. McCarty v. State, 139 Ga. App. 101 (1) (227 SE2d 898). Third, we find any such limitation upon cross-examination of McGinnis harmless as it is unlikely that the jury’s verdict would have been influenced by testimony regarding the degree of Mc-Ginnis’ involvement in the crime. See Williams v. State, 195 Ga. App. 376, 377 (2), 378, supra.

3. Defendant contends he was denied due process of law because of the delay in considering his motion for new trial.

The factors to be considered in determining a due process violation because of post-trial delay is “the ‘(l)ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.’ [Barker v. Wingo, 407 U. S. 514, 530 (92 SC 2182, 33 LE2d 101)].” Graham v. State, 171 Ga. App. 242, 249 (7), 250 (319 SE2d 484). In the case sub judice, the delay in considering defendant’s pro se motion for new trial was over five years, but the reason for the delay is not shown in the record. Nonetheless, it is undisputed that the delay was not caused by defendant and that defendant “tried repeatedly through various channels to obtain a hearing in this matter, including letters, petitions, and a Writ of Habeas Corpus.” However, these circumstances alone do not demand reversal of defendant’s conviction as “[t]he mere passage of time is not enough ... to constitute a denial of due process.” Hughes v. State, 228 Ga. 593, 595 (1a) (187 SE2d 135).

Decided June 10, 1993.

Donna L. Avans, for appellant.

Timothy G. Madison, District Attorney, Jeffrey G. Morrow, Assistant District Attorney, for appellee.

“ ‘Unless it clearly appears that the delay . . . prevented the presentation of an adequate appeal or impaired a defense which would otherwise be available to an appellant where a new trial is ordered due to trial error, an appellant has not suffered the prejudice which turns a [post-trial] delay into a violation of due process of law.” Proffitt v. State, 181 Ga. App. 564, 566 (3) (353 SE2d 61). In the case sub judice, defendant argues that he is prejudiced by incarceration during the post-trial delay. This argument is without merit. This Court refuses “ ‘to hold that post-conviction incarceration, in and of itself, is a violation of due process of law. . . . Graham v. State, 171 Ga. App. 242, 250 (7), supra.” Proffitt v. State, 181 Ga. App. 564, 566 (3), 567, supra. Defendant also argues that he is prejudiced because memories of witnesses have faded and witnesses have vanished. This argument is also without merit as we find no basis for new trial requiring the presence of witnesses.

4. Defendant, on his own behalf, filed a supplemental enumeration of errors and brief when his appellate counsel filed an enumeration of errors and a brief.

“ ‘Neither our State Constitution, see Ga. Const. 1983, Art. I, Sec. I, Par. XII, nor the Federal Constitution provides defendant with a right to simultaneous representation by counsel and self-representation. Smith v. State, 194 Ga. App. 327 (390 SE2d 304) (1990); Cargill v. State, 255 Ga. 616, 622 (3) (340 SE2d 891) (1986). Thus, we do not consider those errors raised or arguments made by defendant himself. He is obligated to bring them to the attention of his counsel in a timely manner for counsel’s consideration and incorporation in the enumerations of error and brief if counsel deems them worthy and appropriate.’ Coursey v. State, 196 Ga. App. 135, 137 (5) (395 SE2d 574).” Loden v. State, 199 Ga. App. 683, 691 (10) (406 SE2d 103).

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

       Doug McGinnis was indicted with defendant Mize and co-defendants Porter and Williams, but he entered a guilty plea prior to trial to a charge of conspiracy to commit arson. McGinnis testified at trial and implicated defendant Mize and co-defendants Porter and Williams in the conspiracy to commit arson. He also testified that he played a minor role in the conspiracy to commit arson and that he is not experienced in starting such fires.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A93A0719.
    PARKER v. BRINSON et al.
    (432 SE2d 626)
    Decided June 10, 1993.
    Anthony L. Parker, pro se.

      Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Kay D. Baker, Staff Attorney, for appellees.
   McMurray, Presiding Judge.

This case is controlled by Howard v. Jonah, 208 Ga. App. 542 (430 SE2d 833). To the extent this prison inmate’s “tort negligence and medical indifference” action (brought against the warden of the prison, the warden’s predecessor, two deputy wardens and the medical director) sets forth a medical malpractice claim, the trial court did not err in dismissing it (for failure to satisfy the requirements of OCGA § 9-11-9.1). However, to the extent this action sets forth a civil rights claim under 42 USC § 1983 for deliberate indifference to an inmate’s medical needs, the trial court erred in dismissing it.

Judgment affirmed in part and reversed in part.

Cooper, J., concurs. Beasley, P. J., concurs in judgment only.


author: Beasley, Presiding Judge.

text:
    A93A0914.
    JENKINS v. THE STATE.
    (432 SE2d 270)
   Beasley, Presiding Judge.

Jenkins was convicted of possession of cocaine with intent to distribute and sentenced as a recidivist. OCGA § 16-13-30 (b). His motion for a new trial was denied.

The evidence, construed to favor the verdict, showed that two Savannah police officers were on patrol in plainclothes in an unmarked car when they observed a group of men standing on a street corner. When the officers slowed the car, the group began to disperse. Most of the group headed north, but Corporal Walker noticed one of the men (Jenkins) heading south holding what appeared to be an open bottle of beer, which violated the city’s open container ordinance. Walker stepped out of the car and approached him. Jenkins threw down the bottle and fled. Having confirmed that it was a beer bottle that the runner had discarded, Walker took chase shouting “Police officer! Stop! Police officer!” Jenkins continued to run. He tripped over a rope fencing off a garden, and Walker observed a plastic bag containing a white substance fall from his person. Jenkins immediately retrieved the bag and continued running. As Walker caught up with him, Jenkins crossed the street, climbed a low fence, and fell into some bushes, where Walker struggled with him.

While Walker was chasing Jenkins on foot, Officer Busby turned the car and followed. He observed a white object fall from Jenkins’ person as he climbed over the fence. Busby left the car, picked up the bag Jenkins had dropped, and helped Walker handcuff him. Walker looked at the bag Busby had retrieved and recognized it, from the way it was packaged, as the same bag he had observed Jenkins drop and retrieve when he had tripped over the rope earlier.

Five hundred seventy two dollars were found on Jenkins’ person during a search at the scene. Busby field-tested the substance in the bag, which proved positive for cocaine. He delivered the bag to the crime lab, which found the 41 rocks in the bag to be ten grams of cocaine.

Jenkins testified he was carrying the cash because he owed money on a furniture bill. He had intended to pay as much as he could that day but had spent most of the afternoon and evening with his grandmother, who had called and asked if he could arrange for the repair of two windows that had been broken. He denied being associated with the group on the street corner and possessing drugs or a beer. He testified that he ran because he did not know Walker was an officer and was afraid because of the large amount of cash he was carrying.

His grandmother testified that he did repair her window that day, but stayed only about an hour and a half.

In his sole enumeration of error, Jenkins contends the trial court gave an incomplete charge on circumstantial evidence in that, despite his admitted failure to request it, the court did not charge the jury on OCGA § 24-4-6. This statute provides: “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Compare Suggested Pattern Jury Instructions, Vol. II, Criminal Cases (2d ed.), p. 12.

In the charge, the court defined direct and circumstantial evidence and reasonable doubt and instructed the jury fully on the presumption of innocence and the State’s burden of proving every element of the crime and every material allegation of the indictment beyond a reasonable doubt.

“Where the case against the defendant is close or doubtful and is composed solely of circumstantial evidence, it is reversible error for a trial court to fail to charge [this statute],” Jones v. State, 243 Ga. 584, 585 (1) (255 SE2d 702) (1979), even absent a request. However, where the case is neither close nor doubtful, or “[w]here there is some direct evidence, it is not error to fail to charge on circumstantial evidence absent a written request to charge. [Cits.]” Id. There having been no request, Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991), which held that a charge on circumstantial evidence must be given on request where the State’s case depends, in whole or in part, on circumstantial evidence, does not apply.

Decided June 10, 1993.

M. Ross Becton, Jr., for appellant.

Spencer Lawton, Jr., District Attorney, Jon C. Hope, Assistant District Attorney, for appellee.

Regardless of whether the case against Jenkins was close or doubtful, it is clear that direct, as well as circumstantial, evidence was presented: two officers testified they saw him drop a bag that later proved to contain 41 rocks of crack cocaine. It was not error for the court to fail to charge the jury on OCGA § 24-4-6.

Judgment affirmed.

Cooper and Smith, JJ., concur.


text:
    A93A0969.
    SIMMONS v. THE STATE.
    (432 SE2d 623)
   McMurray, Presiding Judge.

Defendant Simmons appeals his conviction of armed robbery and possession of a firearm by a convicted felon. Held:

1. An enumeration of error complaining of the denial of a motion for new trial on the general grounds raises an issue as to the sufficiency of the evidence to authorize defendant Simmons’ conviction. The evidence considered in the light most favorable to upholding the verdict of the jury shows that Balkcom, Johnson, and Stephens were searching for Balkcom’s children who had not arrived home as scheduled. They drove to a nearby store and asked some people on the corner if they had seen the children. One person, Taylor, defendant’s co-defendant, replied affirmatively, offered to show them where the children were, and instructed the three to pull across the street to wait for him. See Taylor v. State, 207 Ga. App. 220 (427 SE2d 587). Later, Taylor and a passenger, defendant Simmons, arrived in a car and waved for Balkcom, Johnson, and Stephens to follow. Taylor and defendant Simmons led the way for a distance before they stopped, got out of their car, and approached the following vehicle. Taylor and defendant Simmons, each of whom was armed with a handgun, ordered Stephens and his companions to lie on the ground, and took Stephens’ wallet and keys. The State also introduced proof of defendant Simmons’ previous felony conviction. We find that there was sufficient evidence to authorize a rational trier of fact to find defendant Simmons guilty beyond a reasonable doubt of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Orman v. State, 207 Ga. App. 671, 672 (2) (428 SE2d 813).

2. Defendant enumerates as error the denial of a motion in limine which sought to exclude the identification testimony of the victims. While Stephens was unable to identify defendant Simmons as one of the robbers, both of his female companions did so. Stephens and his female companions were at a police station when Taylor and defendant Simmons were brought in after their arrest only a few hours after the robbery. Defendant argues that this show-up was impermissibly suggestive and likely tainted the identification testimony at trial.

“The [defendant] also contends that the trial court erred in denying his motion to suppress the in-court identification testimony as tainted by an impermissibly suggestive one-person show-up identification. This court has thoroughly considered the dangers inherent in the practice of bringing single suspects to confront witnesses for the purpose of pre-trial identification, in particular, the danger of the ‘ “substantial likelihood of irreparable misidentification.” (Cit.)’ (Daniel v. State, 150 Ga. App. 798, 799 (1) (258 SE2d 604) (1979)). To evaluate that likelihood, we apply the test enunciated in Neil u. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) which requires that we consider the witnesses’ opportunity to view the suspect at the time of the offense, the witnesses’ degree of attention, the accuracy of the witnesses’ prior description and their level of certainty. However, both state and federal courts have also recognized consistently those countervailing considerations which may render the one-on-one confrontation permissible if not desirable. These include the necessity of a speedy police investigation and the necessity to resolve promptly any doubts as to identification so as to enhance the accuracy and reliability of the identification, thus expediting the release of innocent subjects. Bennefield v. Brown, 228 Ga. 705 (187 SE2d 865) (1972); Arnold v. State, 155 Ga. App. 782 (272 SE2d 751) (1980); see Bates v. United States, 405 F2d 1104 (D.C. Cir. 1968).” Weathers v. State, 202 Ga. App. 849, 851 (2) (415 SE2d 690). See also Hood v. State, 199 Ga. App. 774, 775-776 (406 SE2d 120), and Killens v. State, 184 Ga. App. 717, 720 (3) (362 SE2d 425). Under the totality of the circumstances, we find no substantial likelihood of misidentification in the case sub judice. Defendant was apprehended just hours after the robbery and positively identified by the two female witnesses, who had ample opportunity to view defendant at the time of the crime and who had given accurate descriptions to police. The trial court did not err in denying the motion in limine seeking to exclude the identification testimony.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Decided June 10, 1993.

Lori C. Obenauf, for appellant.

Willis B. Sparks III, District Attorney, Charles H. Weston, Assistant District Attorney, for appellee.


text:
    A93A1320.
    STEEDLEY et al. v. HUNTLEY’S JIFFY STORES, INC. et al.
    (432 SE2d 625)
   McMurray, Presiding Judge.

This is the second tort action appealed to this Court arising from a motor vehicle collision in which six individuals were killed when a truck driven by Scott Steedley collided with a passenger van carrying fifteen people. We will not repeat the facts set out in our earlier decision. See Manuel v. Koonce, 206 Ga. App. 582 (425 SE2d 921). The plaintiffs in this action are Scott Steedley and his parents, W. J. Steedley and Vesta Lee Steedley. Plaintiffs seek to recover damages for the injuries suffered by Scott Steedley in the collision from defendants Huntley’s Jiffy Stores, Inc. and Pamela Gail Youmans, who allegedly furnished alcohol to Scott Steedley with knowledge that he would be driving. This appeal is taken from the grant of defendants’ motion for summary judgment. Held:

1. Before addressing the merits of plaintiffs’ enumerations of error, we note that plaintiffs’ brief and enumerations of error were not timely filed and that this failure is the subject of a motion to dismiss by defendants. While we exercise our discretion in this instance to deny defendants’ motion to dismiss, we urge compliance with the mandates of our rules in this and other matters, and point out the hazards including dismissal of appeals and contempt citations which await those who fail to do so. Also, we deny defendants’ motion to supplement the record since the deposition which defendants seek to add to the record on appeal is not relevant under our analysis of the issues raised by plaintiffs’ enumerations of error.

2. Scott Steedley’s action against these defendants is foreclosed since a consumer of alcohol, even an underage consumer, may not recover from the provider of that alcohol for injuries resulting from consumption of the alcohol. “Having determined that providing alcohol to a noticeably intoxicated 17-year-old automobile driver may be found to be the proximate cause of injuries to third persons, we should explain why providing alcohol to a noticeably intoxicated 17-year-old automobile driver does not make the provider liable for injuries to the 17-year-old consumer. See Shuman v. Mashburn, 137 Ga. App. 231 (223 SE2d 268) (1976), and Riverside Enterprises, Inc. v. Rahn, 171 Ga. App. 674 (320 SE2d 595) (1984), discussed in the appendix. Although the provider owes a duty not to provide alcohol to a driver who is noticeably intoxicated, the driver also owes a duty to exercise ordinary care for his own safety. See Shuman v. Mashburn, supra. As between provider and consumer, the consumer has the last opportunity to avoid the effect of the alcohol, by not drinking or not driving, and thus as between the two, the negligence of the consumer is the greater. Hence, notwithstanding the fact that the provider as well as the consumer should foresee the possibility of injury to the consumer, the consumer cannot recover for his injuries from the provider. Riverside Enterprises, Inc. v. Rahn, supra.” Sutter v. Hutchings, 254 Ga. 194, 198 (fn. 7) (327 SE2d 716). This rule was not altered by the enactment of OCGA § 51-1-40. See the last sentence of OCGA § 51-1-40 (b).

Decided June 10, 1993.

Sutton & Associates, Berrien L. Sutton, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, J. Floyd Thomas, for appellees.

3. The parents’ claim under OCGA § 51-1-18 (a) is foreclosed by our decision in Burch v. Uokuni Intl., 192 Ga. App. 861 (386 SE2d 889). Burch involved an action by a parent for injuries to his child who was 19 years of age, beyond the age of majority but underage in relation to the right to consume alcohol. While Scott Steedley is both a minor and underage, we find no merit in plaintiffs’ argument that the Burch decision should be distinguished on the facts. Our reasoning in Burch was directed toward avoiding a circumvention of the rule from Sutter v. Hutchings, 254 Ga. 194, 198 (fn. 7), 200, supra, that a provider of alcohol cannot be held liable to a consumer of alcohol for injuries sustained as a result of such consumption. Since the Sutter rule is applicable to all underage consumers of alcohol, including those who are minors, it follows that the Burch rule is likewise applicable and governs under the circumstance of the case sub judice. The superior court did not err in granting defendants’ motion for summary judgment.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A92A0587.
    CITY OF ATLANTA v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al.
    (434 SE2d 175)
   McMurray, Presiding Judge.

Our prior judgment in City of Atlanta v. MARTA, 204 Ga. App. 387 (419 SE2d 330), wherein this court affirmed the trial court’s denial of the City of Atlanta’s motion for judgment notwithstanding the verdict, having been reversed by the Supreme Court of Georgia in City of Atlanta v. MARTA, 262 Ga. 743 (425 SE2d 862), our prior judgment is vacated, and the judgment of the trial court is reversed.

Decided June 11, 1993.

Michael V. Coleman, Joe M. Harris, Jr., Sarah I. Mills, for appellant.

Gorby, Reeves, Moraitakis & Whiteman, Nicholas C. Moraitakis, Michael E. Fisher, Martha D. Turner, for appellees.

Judgment reversed.

Cooper and Blackburn, JJ., concur.


author: Cooper, Judge.

text:
    A93A0124.
    A. B. C. DRUG COMPANY, INC. v. SWEAT et al.
    (432 SE2d 627)
   Cooper, Judge.

Appellee Shirley Sweat sprained her knee when she fell in appellant’s store. She sued appellant for personal injuries and her husband sued for loss of consortium. The trial court denied appellant’s motion for summary judgment, and we accepted this interlocutory appeal to determine whether summary judgment should have been granted.

Viewing the relevant evidence in a light most favorable to appellees as nonmovants on a motion for summary judgment, it appears that Mrs. Sweat slipped in a silver-dollar-sized spot of clear liquid in one of the aisles of appellant’s store. Otis Peace, one of appellant’s employees, was stocking shelves about seven feet away at the time. He was bent over, with his back to the area of aisle containing the spot of liquid, until he turned to ask Mrs. Sweat if he could help her at the moment of her fall. It was Peace’s responsibility to periodically inspect the aisle for hazards, and he had done so ten to fifteen minutes prior to the fall.

1. Appellant argues that summary judgment should have been granted because there is no evidence that appellant had knowledge of the alleged substance on the floor. “While a proprietor is liable to invitees for his failure to exercise ordinary care in keeping the premises safe, to establish a proprietor’s liability for a slip and fall attributable to a foreign substance on the floor, the customer must show that the proprietor knew of the foreign substance or should have known of it had ordinary care been exercised. [Cit.] . . . When an action is based on constructive knowledge, to avoid summary judgment for the defendant, the plaintiff must establish a question of fact whether the foreign substance remained on the floor for a sufficient length of time for knowledge of it to be imputed to the proprietor, showing that he had an opportunity to discover the defect and correct it. [Cit.] This may be done by showing that employees of the proprietor were in the area and easily could have seen the hazard and corrected it, or by showing that the proprietor failed in his duty to exercise ordinary care in inspecting the premises to keep them safe. [Cit.]” Smith v. Winn-Dixie Atlanta, 203 Ga. App. 565 (417 SE2d 202) (1992). There is no suggestion of actual knowledge in this case, and the only evidence arguably showing constructive knowledge is the presence of Peace on the aisle. However, it is undisputed that Peace’s back was toward the spot of liquid prior to Mrs. Sweat’s fall and that Peace inspected the area no more than 15 minutes earlier. In Queen v. Kroger Co., 191 Ga. App. 249 (1) (381 SE2d 413) (1989), this court held that even though employees were working in the vicinity of the foreign substance, no genuine issue as to constructive knowledge existed where the employees were facing another direction and the area had been inspected no more than 20 minutes earlier. See also Mazur v. Food Giant, 183 Ga. App. 453 (1) (359 SE2d 178) (1987). Appellees’ reliance on Hardin v. Super Discount Market, 205 Ga. App. 646 (423 SE2d 18) (1992) (physical precedent only) is misplaced because there was evidence in Hardin that one of the defendant’s employees had a full and unobstructed view of the puddle of foreign substance, which was white rather than clear and two to three feet across rather than the size of a silver dollar. Accordingly, no issue with respect to appellant’s knowledge of the foreign substance was established, and the trial court erred in denying appellant’s motion for summary judgment.

Decided June 11, 1993.

Walker & Sweat, Forrest W. Sweat, Jr., for appellant.

Thomas & Settle, Ronald B. Thomas, Michael P. Boggs, for appellees.

2. Because we have held in Division 1 that appellant’s motion for summary judgment should have been granted on the issue of appellant’s knowledge, we need not address appellant’s other enumerations of error.

Judgment reversed.

McMurray, P. J., and Beasley, P. J., concur.


author: Blackburn, Judge. Smith, Judge,

text:
    A93A0151.
    PORTER et al. v. THE STATE. STRICKLAND v. THE STATE.
    A93A0152.
    (432 SE2d 629)
   Blackburn, Judge.

These are two appeals from the convictions of four co-defendants for trafficking in cocaine. In the case of Porter v. State, Case No. A93A0151, three co-defendants, Porter, Lott, and Hutcheson, appeal their convictions. In Strickland v. State, Case No. A93A0152, Strickland appeals his conviction. We combined the cases because all four co-defendants were tried together and raise substantially the same issues on appeal.

The evidence used against the defendants was obtained as a result of two investigative warrants, issued by the Gwinnett Superior Court, which authorized a wire interception of three telephone lines. The defendants moved to suppress the tape recordings and the evidence resulting therefrom on the grounds that the warrants allowing the interception and the procedures used for the interception, recording, and storing violated state and federal law. The trial court denied defendants’ motion to suppress and defendants were convicted of trafficking in cocaine at the subsequent trial.

1. In their first enumeration of error, all defendants argue that the trial court erred in denying their motion to suppress due to the violations of federal and state law requirements for interception of wire transmissions. Defendants argue initially that the recordings obtained pursuant to the interception warrants were not submitted immediately upon completion to the superior court for judicial sealing as required by 18 USC § 2518 (8) (a).

Pursuant to the warrants, interceptions were conducted from February 20, 1991 until March 7, 1991. The tapes were not delivered to the superior court judge for sealing until March 28, 1991. On March 28, 1991, the superior court judge inspected the 81 tapes, containing communications intercepted pursuant to the interception warrants, which were brought to him in a sealed condition, having been sealed at some point by the police. The tapes were then sealed in boxes in the trial judge’s presence and under his directions. The state offered no explanation for the delay in taking the tapes to the court, other than the testimony of Officer Zimmerman, the lead investigator, who testified that he was unaware that federal law required that the tapes be submitted immediately to the court for sealing.

Federal law requires that “[t]he recording of the contents of any wire, oral, or electronic communication under this subsection shall be done in such way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions. Custody of the recordings shall be wherever the judge orders.” (Emphasis supplied.) 18 USC § 2518 (8) (a). “Section 2518 (8) (a) has an explicit exclusionary remedy for noncompliance with the sealing requirement, providing that ‘(t)he presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under subsection (3) of section 2517.’ ” (Footnote omitted.) United States v. Ojeda Rios, 495 U. S. 257, 260 (110 SC 1845, 109 LE2d 224) (1990) quoting 18 USC § 2518 (8) (a). The question in the case sub judice then becomes whether the sealing of the tapes by the police, which condition is later inspected by and approved by the judge issuing the warrant is sufficient to meet the requirements of immediate judicial sealing of the tapes as prescribed by 18 USC § 2518 (8) (a).

In Ojeda Rios, the Supreme Court addressed whether tapes which bore seals should be suppressed because the seals had not been attached immediately as required by the statute. Ojeda Rios, supra, 495 U. S. at 260. Therein, the government put tapes in sealed boxes for 82 and 118-day periods prior to taking them to the Court for sealing. The Supreme Court emphasized that 18 USC § 2518 (8) (a) “provides that ‘the seal provided for by this subsection1 (emphasis added) is a prerequisite to the admissibility of electronic surveillance tapes. The clear import of these provisions is that the seal required by § 2518 (8) (a) is not just any seal but a seal that has been obtained immediately upon expiration of the underlying surveillance order.” 495 U. S. at 263. The Court reasoned that “the seal [was] a means of ensuring that subsequent to its placement on a tape, the Government [had] no opportunity to tamper with, alter, or edit the conversations that [had] been recorded. It is clear . . . that Congress viewed the sealing requirement as important precisely because it limits the Government’s opportunity to alter the recordings.” Id. Thereafter, the Court concluded “that 2518 (8) (a) appliefd] to a delay in sealing, as well as to a complete failure to seal, tapes.” Id. at 264.

The state admits that the tapes were not judicially sealed until March 28, 1991; however, it argues that the tapes were “sealed” by the officers monitoring the surveillance recorders when the tapes were removed from the recorders. The tapes were then sealed in evidence bags and stored in a locked room with a locked steel door. The state asserts that all the requirements of § 2518 (8) (a) were met, but in reverse order, i.e., the tapes were sealed at the earliest possible moment and then made available to the court, rather than making the tapes immediately available to the court for sealing.

We do not agree that the sealing of the tapes performed by the officers can replace the immediate judicial sealing required by the statute. The purpose for having the tapes sealed immediately by the judge is to protect private citizens from the police. It follows therefore that to approve the immediate sealing of the tapes by the police, in lieu of the judge, would destroy the protective scheme established by the statute, as only the word of the police officer would be available to establish when such sealing occurred.

The officers’ “sealing” of the tapes did not strictly adhere to the statutorily prescribed procedures for the sealing of tapes containing conversations intercepted pursuant to 18 USC § 2518. The primary purpose behind the requirements contained in § 2518 (8) (a) “is to ensure the reliability and integrity of evidence obtained by means of electronic surveillance.” Ojeda Rios, supra at 263. Allowing the state to perform the sealing process and then submit it for judicial approval, whenever it is ready, presupposes the need for strict supervisory requirements. “The immediate sealing and storage of recordings of intercepted conversations under the supervision of a judge, is an integral part of [the] statutory scheme. (Emphasis supplied.) United States v. Gigante, 538 F2d 502, 505 (2d Cir. 1976). “Section 2518 (8) (a) provides for continuous judicial scrutiny of the entire process of obtaining and utilizing recorded conversations, and consequently requires their presentation to a judge ‘immediately’ — as the statute insists — upon the expiration of the authorizing order.” Id. at 506.

The state next argues that “[s]ometimes when Administrative requirements of the wiretap warrant statutes are not complied with, the burden is shifted to the defendants to show prejudice.” However, this argument was specifically rejected in Ojeda Rios, supra. See also King v. State, 262 Ga. 147 (414 SE2d 206) (1992), wherein the Georgia Supreme Court adopted the analysis of the Supreme Court stated in Ojeda Rios. The citizens of Georgia have the right to expect strict compliance with those statutes allowing invasions into their constitu: tionally protected rights. In Ojeda Rios, the Supreme Court determined “that proof of non-tampering could not substitute for a satisfactory explanation of the delay in transmission.” King, supra, 262 Ga. at 148. The Supreme Court held that the tapes should be suppressed unless the government had satisfactorily explained “not only why a delay occurred but also why it [was] excusable.” Ojeda Rios, supra at 265. In the present case, the state offered no explanation as to why the delay occurred other than that they were unaware of the immediacy requirement. The state’s sloppy compliance with the requirements set forth in 18 USC § 2518 is not excusably explained by an assertion that they were unaware of the requirements. Each department of the state which was involved with the present wiretapping operation; the police, the district attorney, and the judge, is charged with knowledge of the law. This is the case especially when their conduct is potentially violative of the privacy rights guaranteed by the Constitutions of the United States and Georgia. It is the duty of those who enforce the law to follow it and ignorance thereof can no more excuse the conduct of the state than it would excuse the conduct of the defendant. Where statutory procedures are established for the protection of private citizens, such citizens are entitled to the full benefit thereof and to compliance therewith by the state, without the necessity of showing harm by the state’s failure to comply with the law. The state is required to strictly follow the procedures provided by law for the same reason a private citizen is entitled to such compliance and that is because the legislature has established the procedure and that is the law. It would be ironic indeed if only private citizens were required to follow the law while “law enforcement” officers were free to obey at their pleasure. If anything, a higher duty of compliance rests on those whose responsibility it is to enforce the law than it does on those who have no such duty. It is the responsibility of the trial court to ensure that procedural safeguards, statutorily provided, are strictly complied with and it is the duty of the district attorney and the chief law enforcement officer of the county to ensure that their personnel are properly trained and that they follow the law.

The state’s failure to follow the clear mandate of 18 USC § 2518 (8) (a) is fatal to its ability to “use or [disclose] the contents of any wire, oral, or electronic communication or evidence derived therefrom . . .” in this matter. Id. The defendants’ motion to suppress clearly should have been granted by the trial court and it is not even a close question.

2. Next, all defendants argue that the warrant allowing the wire interception was insufficient on its face because it did not contain provisions for minimization as required by 18 USC § 2518 (5). “Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, and shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter.” 18 USC § 2518 (5).

The state admits that the warrant did not contain minimization provisions; however, it argues that the wire interceptions were conducted in such a way as to minimize the intrusion. A minimization provision in the order authorizing the interception is statutorily required and it is the duty of the judge executing the warrant to ensure that it strictly complies with such statutory requirements and of the trial judge to suppress evidence not obtained in strict compliance with the law.

3. During the hearing on the defendants’ motion to suppress, the state “stipulated” that the evidence presented on the charge set forth in the indictment was based upon information acquired as a result of the wiretapping. The state further stated that it “would not be going forward were it not for the tapes.” Therefore, our holding in Division 1 obviates the necessity of addressing defendants’ remaining enumerations of error.

Judgments reversed.

Smith, J., concurs specially. Johnson, J., concurs in the judgment only.

Smith, Judge,

concurring specially.

“Wiretapping and surveillance are the subjects of federal and state law and both must be complied with where applicable.” Orkin v. State, 236 Ga. 176, 179 (2a) (223 SE2d 61) (1976). “[F]or evidence obtained through state-authorized wire taps to be admissible in a state criminal proceeding, it must have been obtained in a manner not inconsistent with the requirements of both the federal and state laws. On the other hand, such evidence must be excluded if it was obtained in a manner inconsistent with . . . either the federal or the state law. [Cit.]” Cox v. State, 152 Ga. App. 453, 455-456 (1) (263 SE2d 238) (1979). Under the authority of King v. State, 262 Ga. 147 (414 SE2d 206) (1992), the state must make a showing of strict compliance, rather than mere substantial compliance, with the prompt judicial “sealing” requirement established by 18 USC § 2518 (8) (a). That statute requires timely transmission of wiretap evidence to the presiding judge for sealing as a prerequisite to the admissibility of such evidence. Compare Morrow v. State, 147 Ga. App. 395, 407 (8) (249 SE2d 110) (1978). (Substantial compliance with minimization of interception required by 18 USC § 2518 (5), based upon “objective reasonableness” standard, is sufficient.)

The state offered no valid reason at the motion hearing to explain satisfactorily the three-week delay in presenting the tapes to the presiding judge. Instead, the state relied upon an erroneous standard of compliance and upon proof of non-tampering.

Although King v. State, supra, was not decided until March 11 1992, one month after the hearing on appellants’ motion in this case, the trial court did have the benefit of a citation to United States v. Ojeda Rios, 495 U. S. 257 (110 SC 1845, 109 LE2d 224) (1990), decided two years before the hearing. The majority properly finds that case applicable to this appeal.

Had the trial court merely relied upon an erroneous legal standard, I would recommend a remand in order to apply the correct standard of strict compliance with 18 USC § 2518 (8) (a). Likewise, had the state offered some reason for delay, the adequacy of which was not determined by the trial court, a remand would be appropriate. United States v. Ojeda Rios, supra. However the state did not seek to present additional evidence or argument as to any reason or satisfactory excuse for the three-week delay. I therefore agree that the trial court erred in denying appellants’ motion.

The actions .of law enforcement officers in rendering the tapes incapable of further recording and then placing them in sealed bags in a vault were appropriate. That is a customary and prudent practice to preserve the chain of custody. I do agree, however, that these actions alone were not sufficient to establish strict compliance with the plain meaning of the statute. It requires immediate presentation to the judge for sealing, or a satisfactory explanation at trial for the absence of the seal or any delay in obtaining it. Since strict compliance with this particular requirement is mandatory for admission into evidence of the electronic communication derived from a wiretap, the accused bears no onus to show harm or prejudice from any delay in obtaining the judicial seal. King v. State, supra at 148; United States v. Ojeda Rios, supra.

The requirement that judicial sealing is to be obtained immediately is not satisfied through storage of tamper-proof tapes sealed by the investigators themselves. Moreover, such steps, standing alone, do not reasonably explain the three-week delay in this case. Mere “proof of non-tampering [is] not [a] substitute for a satisfactory explanation of the delay in [transmitting the tapes to the court for judicial sealing.]” King v. State, supra at 148 (quoting Ojeda Rios, supra, 495 U. S. at 264).

Decided June 11, 1993.

Troy R. Millikan, for appellants (case no. A93A0151).

Robert L. Waller III, Leslie J. Cardin, for appellant (case no. A93A0152).

Thomas C. Lawler III, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

The trial court erred in admitting evidence of the taped conversations, and a new trial is demanded.

       Defendant Strickland raises several grounds for reversal of his conviction in addition to those raised by his three co-defendants; however, because of our holding below, those grounds need not be reached.

       See OCGA § 16-11-64 and 18 USC § 2518. Georgia law “must meet the minimum standards of [federal law] in protecting privacy but may impose more stringent requirements and any interception must conform to both the state and federal law.” Ellis v. State, 256 Ga. 751, 754 (353 SE2d 19) (1987).

       On appeal, the state argues, for the first time, that defendants Lott and Strickland have no standing to challenge the investigative warrants. However, we will not consider issues raised for the first time on appeal. Ga. Dept. of Natural Resources v. Coweta County, 261 Ga. 484 (405 SE2d 470) (1991); Fathers Are Parents Too v. Hunstein, 202 Ga. App. 716 (415 SE2d 322) (1992).

       In United States v. Vazquez, 605 F2d 1269, 1278 (2d Cir.) cert. denied 444 U. S. 981 (100 SC 484, 62 LE2d 408) (1979), the Court noted that a sealing achieved one to two weeks after a wiretap warrant expired could not be considered “immediate” in that sealing was often possible within one or two days. In Vazquez, the delays in judicial sealing ranged from seven to thirteen days. The Court determined that absent a “satisfactory explanation” the law required that sealing after such delays mandated suppression of the tapes. Id.

       Investigator Zimmerman testified that the officers sealed the tapes by “[knocking] out the little record tabs to where it [the tape] could not be recorded over again. ...”

       The state argues that King does not apply because in King, there was no evidence that the court inspected or adopted the seals applied by the officers. However, subsequent judicial review is not sufficient; the sealing of the tapes by the officers, in the case sub judice, cannot replace the immediate judicial sealing required by § 2518 (8) (a).

       We are aware that the fifth circuit adopted a contrary view in United States v. Sklaroff, 506 F2d 837 (5th Cir.), cert. denied 423 U. S. 874 (96 SC 142, 46 LE2d 105) (1975). However, both the United States Supreme Court and the Georgia Supreme Court now support our holding in the case sub judice. See Ojeda Rids, supra; King, supra.


author: Blackburn, Judge.

text:
    A93A0192.
    BRIDGES v. DEPARTMENT OF TRANSPORTATION.
    (432 SE2d 634)
   Blackburn, Judge.

In 1986, the Department of Transportation (DOT) began a project widening U. S. Highway 441, which fronted the property of the appellant, John C. Bridges. The DOT initially planned to take a portion of Bridges’ property, but, when an acceptable compensation could not be agreed upon, it revised its plans so that Bridges’ property would not be condemned. (In 1935, the DOT acquired 100 feet of right-of-way, 50 feet to either side of the centerline of U. S. Highway 441.)

Bridges, however, commenced this action alleging that the DOT incorrectly surveyed the right-of-way, which had resulted in extending the right-of-way onto his property and depriving him of access to his property. The trial court granted summary judgment for the DOT, and this appeal followed.

The record shows that before the road construction, Bridges had two driveways accessing his property to Highway 441, and that after completion of the road, he still had two driveways. During the construction of the road, the DOT always left at least one of the driveways open, and neither driveway was relocated as a consequence of the project.

With regard to the accuracy of the survey and the location of the right-of-way, the DOT submitted the affidavit of the highway engineer who supervised the survey crew, who stated that the right-of-way line was determined by measuring 50 feet from the centerline of Highway 441. Following Bridges’ protest regarding the right-of-way line, he resurveyed the location and found no error in the original survey. The DOT also submitted the affidavit of one of its district engineers, who stated that since 1962 there had been six construction projects involving the right-of-way in question, and that the available DOT roadway plans indicated that the centerline of Highway 441 had not been shifted or moved.

In response, Bridges submitted the affidavit of an engineer who concluded that prior improvement projects changed the course call on the survey by two degrees and that the DOT’s line was off by three to five feet along the frontage of Bridges’ property; however, he stated no facts upon which he based his findings.

1. “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

“Surveying is in no sense a question of opinion and, regardless of the skill of a surveyor, he accomplishes his work by the use of instruments whereby exact courses and distances are fixed, and from these, precise mathematical calculations are made. To substitute opinion for facts at any point, nullifies the entire process.” Lively v. Lively, 206 Ga. 606, 608 (58 SE2d 168) (1950).

In the instant case, the DOT presented evidence of how it surveyed the right-of-way in question, and that the centerline of Highway 441, which constituted the crucial measuring point, had not been moved since at least 1962 (when Bridges acquired his property). This evidence, if unrebutted, establishes that the DOT’s survey was correct.

In response to the DOT’s evidence, Bridges submitted an affidavit which merely states a conclusion that the DOT’s measurements were incorrect by three to five feet because of a two-degree change of course of the right-of-way, without providing any factual basis for that conclusion. “ ‘Generalized arguments amounting to mere conclusions have no probative value to pierce the facts presented by the movant for summary judgment. (Cit.)’ [Cit.]” E. H. Crump Co. v. Millar, 200 Ga. App. 598, 601 (3) (409 SE2d 235) (1991). Bridges thus failed to point to or adduce specific evidence that gave rise to a triable issue in this regard.

2. Concerning Bridges’ complaint that the DOT’s road project deprived him of his access to Highway 441, it is uncontroverted that his two driveways connecting his property to Highway 441 were not closed or relocated as a result of the road construction project. During the construction, at least one of the driveways always remained open. Accordingly, the undisputed evidence negated Bridges’ claim that the DOT had closed his access to Highway 441, and summary adjudication of this issue in favor of the DOT also was appropriate.

To the extent that Bridges experienced some temporary inconvenience caused by the road construction, it is well-settled that “ ‘[d]amages caused by mere temporary inconvenience due to the construction of the project for which the property was taken is not a proper element for consideration in determining just and adequate compensation for condemned realty. (Cits.)’ [Cit.]” Dept. of Transp. v. Fitzpatrick, 184 Ga. App. 249, 250 (2) (361 SE2d 241) (1987); accord Hillman v. Dept. of Transp., 257 Ga. 338, 340 (359 SE2d 637) (1987).

3. On appeal, Bridges also contends that factual issues remain concerning the DOT closing his access to a county road abutting his property, as well as a property-line driveway. As a consequence of the DOT’s widening of Highway 441, Bridges’ driveway connecting onto the county road was too close to the revised intersection of the county road and Highway 441. The DOT offered to move the driveway approximately 50 feet to the west of its old location, provided that Bridges execute the requisite driveway easement, but Bridges refused this offer.

However, Bridges did not assert these claims in his complaint, or in the pretrial order entered on February 18, 1991, which only alleged that the DOT closed his two driveways accessing his property to Highway 441. On July 25, 1991, without leave of court or consent of the DOT, Bridges filed an amendment to his complaint in which he raised these additional claims. (In that amendment, he also erroneously stated that no pretrial order had been entered.)

“[0]nce a pretrial order has been entered, a party may not amend without leave of court or consent of the opposite party. . . .” Gaul v. Kennedy, 246 Ga. 290, 291 (1) (271 SE2d 196) (1980). “The order, when entered, controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.” OCGA § 9-11-16 (b).

In its order granting summary judgment for the DOT, the trial court did not consider these additional claims asserted by Bridges in his unauthorized amendment to the complaint. We find no abuse of discretion in the trial court’s exclusion of those additional issues. See Echols v. Bridges, 239 Ga. 25 (235 SE2d 535) (1977).

Judgment affirmed.

Johnson and Smith, JJ., concur.

Decided June 11, 1993.

Andrew J. Hill, Jr., Charles D. Strickland, for appellant.

Ken Stula, for appellee.


text:
    A93A0224.
    KIMBLE v. THE STATE.
    (432 SE2d 636)
   Cooper, Judge.

Appellant was convicted of three counts of theft by deception and appeals from the trial court’s denial of his motion for new trial.

The indictment charged appellant with obtaining the property of Ethel Mae Eberhart, Carrie Willingham and Helene Thomas with the intention of depriving the victims of said property by promising performance under certain home construction agreements which he knew would not be performed. OCGA § 16-8-3 (b) (5). Viewing the evidence in a light to support the verdict, it shows that appellant entered into a contract with Ms. Eberhart to rebuild her home for an initial down payment of $5,000. Ms. Eberhart gave appellant $5,000, and appellant partially cleared the lot upon which the house was to be built and dug trenches for the footing. Ms. Eberhart and her daughter testified that they only saw appellant on site on approximately two occasions and that appellant never remained on site for a full day. Appellant explained that he would have to leave to finish other jobs and to collect money from other people to prevent them from prosecuting him but that his uncle would remain and work after his departure. Appellant never completed the house and retained all but approximately $200 of the $5,000 paid by Ms. Eberhart.

Appellant and Ms. Willingham had an agreement for the construction of an addition to Ms. Willingham’s home wherein Ms. Willingham was to initially pay appellant $1,500 as a down payment, and upon completion, an additional $1,500 would be due. After Ms. Willingham made the down payment, appellant removed the brick from the rear of the house, laid a foundation, “preformed” the back of the house with two-by-sixes and put up the bottom rafters and studs. Appellant testified that he completed nearly 55 percent of the work before money became a factor. Appellant then abandoned this project. There was also an agreement for the construction of an addition to the home of Carrie Thomas for a down payment of $1,500. Appellant received the payment and removed the brick from the back of her bedroom and dug out the footing for the addition. Appellant testified that his helpers walked off the job because he was unable to pay them, and as a consequence, he did not complete the project.

Appellant also testified that he engaged another contractor to assist him in building Ms. Eberhart’s home and gave the contractor a portion of the $5,000 but never saw the contractor again. He maintained that after the contractor fled he only had approximately $2,700 left; that he used a portion of the money to satisfy financial obligations to other creditors; and that while under arrest for a bád check written by his ex-wife, appellant’s uncle broke into his home, took the money and went to Florida. Appellant admitted that he did not finish the jobs because he ran out of money and that he was getting money from Ms. Thomas and Ms. Willingham to satisfy Ms. Eberhart.

1. Appellant raises the general grounds and contends the trial court erred in denying his motion for directed verdict because appellant never misrepresented an existing fact, relying on Robinson v. State, 198 Ga. App. 431 (401 SE2d 621) (1991).

“As is pertinent to this case, OCGA § 16-8-3 provides: ‘(a) A person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property, (b) A person deceives if he intentionally: ... (5) Promises performance of services which he does not intend to perform or knows will not be performed. Evidence of failure to perform standing alone shall not be sufficient to authorize a conviction under this subsection.’ ‘The purpose of this law is not to enforce the contract to perform services, but to punish the fraudulent procurement of money, or other thing of value under the contract. . . . To make a prima facie case the State must prove, among other things, a definite contract; that the defendant failed to perform the services so contracted for, without good and sufficient cause; and that he failed to return the money so advanced . . . , without good and sufficient cause, and all to the loss and damage to the hirer. Mere proof that the defendant failed to carry out the contract does not give rise to a presumption that he did so without good and sufficient cause, nor is such essential element supplied by statements of the hirer that he knew of no good reason why the laborer did not comply with the contract.’ . . . [Cit.]” Holt v. State, 184 Ga. App. 664, 665-666 (1) (362 SE2d 464) (1987).

In our view, the evidence was sufficient to enable a rational trier of fact to find appellant guilty as charged in the indictment beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Because appellant was not charged with theft by deception under OCGA § 16-8-3 (b) (1) rather than OCGA § 16-8-3 (b) (5), the State was not required to prove that the accused created or confirmed “another’s impression of an existing fact or past event which [was] false and which the accused [knew] or believe [d] to be false.” Thus, appellant’s reliance on Robinson is misplaced, and the trial court did not err in denying appellant’s motion for directed verdiet.

Decided June 11, 1993.

Allen W. Johnson, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Nancy J. Berger, Assistant District Attorneys, for appellee.

2. Appellant also enumerates as error the trial court’s refusal to give his requested jury charges. “ ‘ “A request to charge must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence.” (Cit.)’ [Cit.]” Jirles v. State, 204 Ga. App. 268 (2) (419 SE2d 117) (1992). Although the charges submitted by appellant are correct statements of the law, the trial court did not err in refusing to give them because they set forth the State’s burden of proof under OCGA § 16-8-3 (b) (1) and therefore were not properly adjusted to the facts.

Judgment affirmed.

McMurray, P. J., and Beasley, P. J., concur.


text:
    A93A0313.
    TAYLOR v. THE STATE.
    (433 SE2d 87)
   Cooper, Judge.

Appellant was tried with four co-defendants for possession of cocaine. The jury found appellant guilty, and he appeals from the judgment and sentence entered on the jury verdict and the denial of his motion for new trial.

Construing the evidence in the light most favorable to the verdict, the evidence showed that on May 1, 1991, agents of the Albany/ Dougherty County Drug Unit executed a search warrant at an apartment where appellant lived occasionally with his girl friend. When the agents entered, appellant was on the back porch of the apartment, his girl friend was in the bedroom, three other women were in the living room, and a fifteen-year-old boy was sitting on the front porch with a loaded semi-automatic weapon. During the search of the apartment, agents found four small bags of suspected cocaine. One bag was found on the front porch, another was found on top of a gas meter located within arms reach of the back porch, the third was found inside a tennis shoe on the back porch, and the fourth bag was found on the ground two or three feet from the back porch. As a result of the search, appellant and the other persons in the apartment were arrested and charged with possession of cocaine. Several guns were also found in the apartment, and appellant subsequently admitted that the guns belonged to him. The substance in the bags found on top of the gas meter and on the ground near the back porch tested positive for cocaine, and the other packets were not tested.

Decided June 11, 1993.

Knight & Marlowe, John W. Knight, Terry J. Marlowe, for appellant.

Britt R. Priddy, District Attorney, Nancy G. Grigg, Assistant District Attorney, for appellee.

In his three enumerations of error, appellant contends that the verdict was contrary to the law and the evidence and that the trial court erred in denying his motions for directed verdict and new trial. Appellant argues that there was no evidence that he had either actual or constructive possession of the cocaine because the cocaine was found in an area easily accessible to others.

“The equal access defense is based on the rule that ‘merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.’. . . [Cit.]” Nelson v. State, 199 Ga. App. 487, 488 (1) (405 SE2d 310) (1991). However, “[possession of contraband ‘can be established by evidence which shows the contraband was discovered on the premises occupied by and under the control of the accused with no equal right of access and occupancy in others.’ [Cit.]” McKenny v. State, 204 Ga. App. 411 (1) (419 SE2d 731) (1992). The agents surveilled the apartment for two weeks prior to the issuance of the search warrant and regularly observed appellant at the apartment. The agents also observed that there was always someone on the front porch and someone on the back porch, thereby denying access to the general public. There was also evidence that neither the front porch nor the back porch was equally accessible to other persons. The front porch was guarded by the youth armed with a semi-automatic weapon; the back porch was enclosed by a fence which extended the length of the apartment building, making it accessible only by going to the end of the building and cutting through an adjoining apartment. The cocaine found on the ground and on the gas meter was within a few feet of where appellant was standing when the agents entered the apartment. Generally, the equal access rule applies “to areas which are open, notorious and easily accessible to other persons.” Cantrell v. State, 204 Ga. App. 330, 331 (419 SE2d 141) (1992). The evidence does not support appellant’s argument that the areas where the cocaine was found were equally accessible to other persons. Accordingly, we find no merit to appellant’s enumerations of error.

Judgment affirmed.

McMurray, P. J., and Beasley, P. J., concur.


text:
    A93A0528.
    MORRIS v. DEPARTMENT OF TRANSPORTATION et al.
    (432 SE2d 638)
   Blackburn, Judge.

The appellant, Daniel Morris, individually and as administrator of the estate of Mary Ann Morris, his deceased wife, filed a wrongful death action against the appellees, the Georgia Department of Transportation, and Marion Waters, Archie Burnham, Jr., Ray Threlkeld, Felton Rutledge, and Tony Chambers, employees of the department. The trial court subsequently granted summary judgment in favor of the appellees on the wrongful death claim, and the appellant timely appealed. The appellant also moved the court to reconsider its grant of summary judgment and moved to proceed in forma pauperis on appeal. The trial court subsequently denied both motions. On appeal, the appellant’s enumeration of error relates to the denial of his motion to proceed in forma pauperis.

Morris initially contends that the trial court erred in failing to hold an evidentiary hearing to determine the veracity of his affidavit. We disagree. Although OCGA § 9-15-2 (a) (2) provides that the matter of indigence “shall be heard and determined by the court, under the rules of the court,” after a party at interest or his agent has contested the truth of the affidavit of indigence, the statute does not mandate an oral hearing. See Sweet v. State, 191 Ga. App. 516 (382 SE2d 376) (1989). “Unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing. ...” Uniform Superior Court Rule 6.3. Consequently, Morris was not entitled to an evidentiary hearing on the issue of indigency.

Morris further contends that he is indeed indigent and the trial court did not have the discretion to deny his motion to proceed in forma pauperis. However, “(t)he ruling of the trial court on all issues of fact concerning the ability of a party to pay costs or give bond is final under the provisions of (OCGA § 9-15-2 (b)) and is not subject to review. The factual issue of [Morris’] indigency was submitted to the trial court and resulted in the determination that he lacked that status [based upon the record]. This ruling is final and not subject to review by this court.” (Citations and punctuation omitted.) Harris v. State, 170 Ga. App. 726 (318 SE2d 315) (1984). Contrary to the appellant’s contention, OCGA § 9-15-2 provides the trial court with the authority to determine indigency, and considering the traverse filed by the appellees, a finding of indigency was not demanded. Compare Heath v. McGuire, 167 Ga. App. 489 (306 SE2d 741) (1983) (decided prior to the 1982 amendment). Accordingly, this assertion is also without merit.

Decided June 11, 1993.

Clark, Washington & Jones, Craig T. Jones, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, Eric A. Brewton, Assistant Attorney General, for appellees.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0732.
    BURKS et al. v. FIRST UNION MORTGAGE CORPORATION.
    (432 SE2d 822)
   Blackburn, Judge.

The appellee, First Union Mortgage Corporation, filed the instant dispossessory action against the appellant, Geanne Burks, “and others,” as a result of the appellant’s refusal to vacate appellee’s property following a foreclosure sale. The appellant responded, asserting that the foreclosure was improperly conducted based upon the automatic stay provisions of 11 USC § 362. The appellant also asserted a counterclaim for malicious prosecution. After a bench trial, the trial court denied the appellant’s counterclaim and granted judgment in favor of the appellee on the writ of possession, ordering the appellant to vacate the premises. This appeal followed.

1. In her first enumeration of error, the appellant contends that the trial court erred in failing to include findings of fact and conclusions of law in the final judgment. However, the record does not show that the appellant requested that the trial court include specific findings of fact and conclusions of law in its order prior to the issuance of the order. “[I]n all nonjury trials in courts of record, the court shall upon request of any party made prior to such ruling, find the facts specially and shall state separately its conclusions of law.” OCGA § 9-11-52 (a). Inasmuch as the appellant did not comply with the statutory requirements, this enumeration is without merit.

2. In her second enumeration of error, the appellant contends that the trial court erred in entering judgment in favor of the appellee in light of the bankruptcy stay. However, the record does not include any documentation indicating that the appellant has filed a petition for bankruptcy protection and that the trial court’s order is in violation of a bankruptcy automatic stay. As this court has held in Dept. of Human Resources v. Corbin, 202 Ga. App. 10, 11 (413 SE2d 484) (1991), “ ‘[t]he burden is on the appellant to show error by the record, and when a portion of the evidence . . . bearing upon the issues raised by the enumerations of error, is not brought up in the appellate record so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result. (Cits.)’ [Cit.]” Although the appellee has attached documentation to its brief concerning the bankruptcy, “ ‘[t]he burden is on him who asserts error to show it affirmatively by the record (cit.). [A] brief cannot be used in lieu of the record for adding evidence. . . .’ [Cit.]” Gurly v. Hinson, 194 Ga. App. 673, 674 (4) (391 SE2d 483) (1990). Accordingly, this enumeration is also without merit.

Decided June 11, 1993.

Geanne Burks, pro se.

W. Barrington King, Jr., for appellee.

Judgment affirmed.

Johnson and Smith, JJ., concur.


text:
    A93A0843.
    BROOM et al. v. THE STATE.
    (432 SE2d 823)
   Blackburn, Judge.

The appellants, Mary Broom, Kevin Broom, and Paul Smith, were indicted for possession of marijuana with intent to distribute, obstruction, and possession of a firearm during the commission of a felony. In an omnibus discovery motion, the defendants requested any exculpatory information pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

Following a hearing on that motion, the trial court agreed to conduct an in camera examination of the prosecutor’s file if requested (although the prosecutor maintained an open file policy), but denied the motion as to such an inspection of the investigating police officer’s file, on the grounds that Brady does not extend to police files which are not in the possession of the prosecutor. This court then granted the defendants’ application for interlocutory appeal.

At the hearing on the discovery motion, the arresting officer testified that on January 4, 1992, a confidential reliable informant reported that the defendants would be transporting drugs into the county that day along a certain route, with one vehicle being used to transport the contraband and a second vehicle following behind as a guard vehicle. Police officers staked out the route, and followed the defendants’ vehicles when they appeared as predicted by the informant. The defendants stopped at a residence for approximately 15 minutes and then drove away. Subsequently, the police officers stopped the two vehicles driven by the defendants, and found 4.7 ounces of marijuana in the lead vehicle. Afterwards, the police returned to and secured the residence where the defendants stopped briefly, so that the residence could be searched.

Decided June 11, 1993.

William 0. Cox, John C. Watts, Sr., John C. Watts, Jr., for appellants.

Spencer Lawton, Jr., District Attorney, David E. Langford, As sistant District Attorney, for appellee.

During the hearing, defense counsel attempted to discover the identity of the confidential reliable informant. When the trial court disallowed that inquiry because the informant had served only as a tipster, defense counsel then sought access to the police file regarding the subsequent search of the residence where the defendants had stopped prior to their arrest, despite the fact that none of the charges against the defendants stemmed from that search. The reason behind the request was defense counsel’s suspicion that the police files might reveal the identity of the confidential informant.

“There is no Georgia statute or rule of practice which allows discovery in criminal cases . . . , nor is the accused entitled as a matter of right to receive copies of police reports and investigation reports made in the course of preparing the case against a defendant. [Cit.] . . . [Tjhere is ‘no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.’ ” Lundy v. State, 139 Ga. App. 536, 538 (228 SE2d 717) (1976) (quoting from Moore v. Illinois, 408 U. S. 786, 795 (92 SC 2562, 33 LE2d 706) (1972)). See also Massengale v. State, 189 Ga. App. 877, 881 (4) (377 SE2d 882) (1989).

In the instant case, the portion of the police file sought by the defendants only tangentially related to the charges brought against them. This discovery request was actually a thinly-disguised attempt to uncover the identity of the confidential reliable informant. It was uncontroverted that the informant was a mere tipster, and for that reason the informant’s identity “could not be material to the guilt or innocence of the defendants] under Brady . . .” and thus remained privileged. Thornton v. State, 238 Ga. 160, 165 (231 SE2d 729) (1977). Accordingly, the trial court correctly denied the defendants’ discovery request pertaining to the police file in this case.

Judgment affirmed.

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


text:
    A93A1413.
    SAGNIBENE et al. v. BUDGET RENT-A-CAR SYSTEMS, INC.
    (432 SE2d 639)
   Blackburn, Judge.

The appellants, Joe and Christine Sagnibene, filed the instant negligence action against the appellee, Budget Rent-A-Car Systems, Inc. as a result of an automobile collision of April 1, 1990, in which the appellants were injured and their automobile was substantially damaged due to the negligence of the driver of appellee’s vehicle. The automobile had been rented to Megan Ellefson, but at the time of the accident, it was being driven by Fred Arnold with the permission of Megan Ellefson. The defendant was properly served with a copy of the complaint, but failed to file a responsive pleading within 45 days. As a result, the trial court granted a default judgment to the plaintiffs on the issue of liability. One month later, the defendant moved the court to open the default, asserting that its failure to timely respond to the complaint was the result of excusable neglect, and attached its answer and defenses to the action. Based upon the briefs of the parties, arguments presented at the hearing on the motion, and the defendant’s payment of all accrued costs, the trial court opened the default, and permitted the defendant’s filing of its defensive pleadings. The defendant subsequently moved for summary judgment, which was granted by the trial court, and the action was dismissed with prejudice. This appeal followed. The plaintiffs have an action pending against Megan Ellefson in the State Court of Jones County.

1. In their first enumeration of error, the plaintiffs contend that the trial court erred in granting summary judgment in favor of the defendant because the company, as owner of the subject vehicle, failed to provide the requisite insurance coverage on the vehicle in question. We disagree.

The record viewed in the light most favorable to the plaintiffs shows that the defendant was authorized by the Commissioner of Insurance to transact business in this state as an automobile self-insurer in reference to automobile liability and motor vehicle accident insurance. In fact, the rental agreement entered into between the defendant and Ellefson, indicated that Ellefson, as the renter, and all authorized drivers, would be provided with liability coverage in accordance with the standard provisions of a basic automobile liability insurance policy or in accordance with the requirements of a qualified self-insurer of such coverage. Although the plaintiffs assert in their complaint that the defendant, as the owner of the automobile involved in the collision, “failed to assure the minimal coverage required by Georgia Law [specifically, OCGA § 33-34-4],” the record shows that the defendant complied with the statutory requirements by providing insurance for the automobile as a qualified self-insurer. OCGA § 33-34-4 specifically provides that “[n]o owner of a motor vehicle required to be registered in this state or any other person, other than a self-insurer as defined in this chapter, shall operate or authorize any other person to operate the motor vehicle unless the owner has motor vehicle liability insurance equivalent to that required as evidence of security for bodily injury and property damage liability under Chapter 9 of Title 40, the ‘Motor Vehicle Safety Responsibility Act.’ ” (Emphasis supplied.) This statute does not apply to the defendant as the record shows that the defendant has been authorized to transact business in this state as a self-insurer.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Inasmuch as there is an absence of evidence supporting the plaintiffs’ claim that the defendant did not comply with OCGA § 33-34-4, summary adjudication was proper as a matter of law. Although the plaintiffs assert in a statement labeled as enumeration of error three that they are entitled to bring a direct action against the insurer because of its failure to locate the driver of the automobile, this court has held in Grant v. Jones, 168 Ga. App. 690, 691 (310 SE2d 272) (1983), “[ojwnership of a vehicle alone is not sufficient to establish an owner’s liability.” Consequently, these enumerations are without merit.

2. Based upon our decision in Division 1, we need not address plaintiffs’ second enumeration of error concerning the appropriateness of the trial court’s dismissal of the action “with prejudice.”

3. In their fourth enumeration of error, the plaintiffs contend that the trial court erred in opening the default judgment. We conclude that this enumeration is also without merit.

OCGA § 9-11-55 (b) specifically provides that “[a]t any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause. . . .” “The discretion of the trial judge in opening a default and permitting the defendant to plead will not be interfered with by this court unless manifestly abused, to the injury of the plaintiff.” (Citations and punctuation omitted.) Miller v. Tranakos, 198 Ga. App. 668, 670 (1) (402 SE2d 772) (1991). “The rule permitting opening of default is remedial in nature and should be liberally applied, for default judgment is a drastic sanction that should be invoked only in extreme situations. Whenever possible cases should be decided on their merits for default judgment is not favored in law. Generally, a default should be set aside where the defendant acts with reasonable promptness and alleges a meritorious defense.” (Citations and punctuation omitted.) Id. at 669.

Decided June 14, 1993.

Sinnreich & Francisco, Elizabeth R. Francisco, for appellants.

In the instant case, the defendant mistakenly believed that this action was being defended by counsel selected by an independent adjuster to whom the summons and complaint had been forwarded. Within one week after the defendant received information indicating that a default judgment had been entered, counsel was immediately retained by the defendant and moved for the opening of the default, asserting its defense to liability under the terms of the lease agreement. The defendant also paid all of the accrued costs and announced ready to proceed at trial. See C. W. Matthews Contracting Co. v. Walker, 197 Ga. App. 345 (398 SE2d 297) (1990). In Powell v. Eskins, 193 Ga. App. 144 (387 SE2d 389) (1989), this court reversed the trial court’s failure to open a default judgment where an insurance carrier untimely forwarded a copy of the summons and complaint to defense counsel. The court concluded that there was good cause for Powell to believe that the suit was being defended by the insurance company and any neglect by Powell in following the progress of the case was excusable. “The law should not blindly impose standards which require individuals, in the conduct of their daily business, to distrust the parties with whom they deal. Likewise, a litigant should not unnecessarily be forced into default as a consequence of having reasonably relied upon the word of his fellow, particularly when no innocent party will suffer if the default is opened.” (Punctuation omitted.) Id. at 145. “Considering the circumstances of this case and after our review of the record, we find no abuse of discretion by the trial court in the opening of the [default].” Miller, supra at 670.

Judgment affirmed.

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

Gray, Gilliland & Gold, David S. Currie, for appellee.


text:
    A93A1478.
    O’BRIEN v. DUNAGAN.
    (432 SE2d 642)
    Decided June 14, 1993.

      Jett & Liss, Joel I. Liss, for appellant.

      Cooper & Associates, Gary M. Cooper, for appellee.
   McMurray, Presiding Judge.

Plaintiff O’Brien filed this tort action against Lester Studdard and the administrator of his estate. Subseqently, Dunagan, as executrix of the estate of Lester Studdard was substituted as the party defendant. Plaintiff appeals following the entry of a judgment in his favor in the principal amount of $5,000 based upon the verdict of a jury. Held:

After July 1,1991, appeals in all actions for damages in which the judgment is $10,000 or less must be taken by the application procedure set forth in OCGA § 5-6-35. See OCGA § 5-6-35 (a) (6). This direct appeal must be dismissed for failure to comply with the discretionary application procedure. Heuer Indus. v. Crum, 202 Ga. App. 675 (415 SE2d 307). See also Jarrett v. Ford Motor Credit Co., 178 Ga. App. 600 (344 SE2d 440).

Appeal dismissed.

Johnson and Blackburn, JJ., concur.


author:
McMurray, Presiding Judge.
      Beasley, Presiding Judge,

text:
    A93A0082.
    PITTS v. THE STATE.
    (432 SE2d 643)
   McMurray, Presiding Judge.

Defendant Pitts appeals his conviction of two counts of armed robbery and one count of theft by taking. Held:

1. The first enumeration of error questions the sufficiency of the evidence to authorize defendant’s conviction. Viewed in the light most favorable to upholding the jury’s verdict, the evidence established that defendant and an accomplice entered a jewelry store in Saint Marys and posed as customers before the accomplice pulled a gun and ordered the manager to the back of the store. The manager was handcuffed and forced to lie on the floor. Meanwhile defendant was telling his accomplice to “put on the gloves.” When a customer walked into the store, he was also threatened with a gun, handcuffed, and placed on the floor. Along with merchandise from the store, the store manager’s personal jewelry was taken, as well as jewelry and car keys from the customer. The customer’s car was also taken as the defendant and his accomplice departed the scene.

While the defendant presented an alibi defense, it is the task of the jury to weigh the evidence, determine credibility, and resolve conflicts in the testimony. This Court does not reweigh the evidence, but only determines whether it is legally sufficient. The evidence was sufficient for a rational trier of fact to find defendant guilty beyond a reasonable doubt of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Widner v. State, 203 Ga. App. 823, 825 (5) (418 SE2d 105).

2. The second enumeration of error contends that defendant did not receive effective assistance of counsel at trial. “To establish ineffective assistance of counsel, [a defendant] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 784 (325 SE2d 362), cert. denied, 474 U. S. 925 (106 SC 260, 88 LE2d 266) (1985).” Gross v. State, 262 Ga. 232, 233 (1) (416 SE2d 284).

Following the trial and sentencing, defendant’s trial attorney filed a motion for new trial. The contention that defendant had not received effective assistance from trial counsel was raised in an amendment to the motion for new trial filed by defendant’s appellate counsel. However, appellate counsel did not request an evidentiary hearing on this issue as required under Dawson v. State, 258 Ga. 380, 381 (2) (369 SE2d 897).

Usually such a failure to request a hearing on the ineffectiveness issue results in the waiver of the right to a hearing. However, the case sub judice is unusual in that regardless of defendant’s failure to request an evidentiary hearing on the ineffective assistance of counsel issue, evidence on this issue, including the testimony of trial counsel, was received at the hearing on defendant’s motion for new trial and considered by the trial court. The trial court’s order denying defendant’s motion for new trial states alternative theories for the rejection of defendant’s claim of ineffective assistance of counsel. Citing Dawson v. State, 258 Ga. 380, 381 (2), supra and its progeny, the trial court held that defendant has waived the claim of ineffectiveness by appellate counsel’s failure to request a hearing on that claim. However, we do not view Dawson as authorizing such a conclusion where, as in the case sub judice, an evidentiary hearing has been held despite the absence of any request for such on behalf of defendant. In our view, Dawson addressed only the preservation of defendant’s right to an evidentiary hearing and was not intended to prohibit a trial court from exercising its discretion to receive evidence on this issue even in the absence of a proper request. Once the trial court exercises its discretion so as to receive evidence on the ineffectiveness issue, the absence of a request by defendant for such a hearing is immaterial. Therefore, we conclude that the trial court, having exercised its discretion to receive evidence on the ineffectiveness issue, could not rely upon Dawson as a basis for denying defendant’s motion for new trial. Under this view, the trial court having considered evidence and ruled on the ineffectiveness claim, it is ripe for appellate review.

The evidence submitted to the trial court was sufficient to permit a trier of fact to determine that trial counsel was deficient in that he made errors so serious that he was not functioning as the “counsel” guaranteed by the Sixth Amendment. White v. State, 193 Ga. App. 428, 430 (2) (387 SE2d 921). See also McAlister v. State, 204 Ga. App. 259, 261 (2) (419 SE2d 64) and Brown v. State, 180 Ga. App. 361 (1), 362 (349 SE2d 250). In measuring the assistance rendered by trial counsel every effort must be made to eliminate the distorting effects of hindsight and evaluate trial counsel’s conduct from counsel’s perspective at the time. Also, trial counsel is entitled to a strong presumption that his conduct falls within the wide range of reasonable professional conduct. Baines v. State, 201 Ga. App. 354, 355 (1), 356 (411 SE2d 95). However, trial counsel has a duty to make reasonable investigations. Cochran v. State, 262 Ga. 106, 107 (2) (414 SE2d 211). The duty to conduct an investigation of the possible avenues of defense is tempered by practical restraints. It is not realistic to expect trial counsel to investigate all plausible lines of defense. Instead, the trial counsel’s knowledge and experience is to be utilized in determining which lines of defense receive the greater effort. Southerton v. State, 205 Ga. App. 366, 367 (422 SE2d 251); Baines v. State, 201 Ga. App. 354, 356 (1c), supra.

Nonetheless, it appears that defendant’s trial counsel failed to make minimal inquiries which would have revealed that the arrest of defendant was predicated on warrants issued without any showing of probable cause before the issuing magistrate. The warrants for defendant’s arrest were apparently issued solely on the basis of the attached affidavits which, although satisfying the requirements of OCGA § 17-4-41, did not supply the magistrate with sufficient information to support an independent judgment that probable cause existed for the issuance of the warrants. See Devier v. State, 253 Ga. 604, 609 (5), 610 (323 SE2d 150).

Following his arrest, defendant gave an inculpatory statement to police which was admitted at trial. If trial counsel had discovered the illegality of the arrest of defendant, he could have prevented the introduction into evidence of the inculpatory statement. State v. Harris, 256 Ga. 24, 26 (2) (343 SE2d 483); Ryals v. State, 186 Ga. App. 457, 458 (2) (367 SE2d 309). In fact, trial counsel testified that he either did not think of the possibility that the arrest warrant might have been illegally issued or assumed away that possibility based on the experience of the law enforcement officer involved. He also testified that he could not recall whether, at the time he was representing defendant, he was aware that there was a difference in the statutory requirements and the due process requirements for issuance of an arrest warrant.

While the trial court did not expressly address the issue of whether trial counsel’s performance was deficient, we have reached the conclusion that it was. This conclusion was reached after considering the uncomplicated nature of the case against defendant, the obvious importance of defendant’s confession to the State’s case, and the small amount of time and effort which could have revealed the illegality of the arrest warrant.

The trial court also predicated its denial of defendant’s motion for new trial on a conclusion that any deficiency on the part of trial counsel did not prejudice defendant. The applicable test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Gross v. State, 262 Ga. 232, 233 (1), supra. In reaching the conclusion that defendant was not prejudiced, the trial court relies upon the weight of the evidence against defendant other than his inculpatory statement. See Bradley v. State, 193 Ga. App. 515, 517 (6) (388 SE2d 331); Brown v. State, 192 Ga. App. 867, 868 (2) (386 SE2d 673).

In our view, the trial court’s conclusion on this point is clearly erroneous. Apart from his confession, the State’s evidence against defendant consisted of the testimony of an admitted accomplice to the crime testifying under a grant of immunity and the identifications by the store manager and customer. This is evidence which a jury might discount due to concerns as to the credibility of the accomplice or the brief and stressful circumstances associated with the identification testimony. On the other hand, defendant presented the testimony of several witnesses that he was in Jacksonville, Florida, working on a car, at the time of the robbery. It seems clear to us that under these circumstances, defendant’s confession could very well have influenced the verdict returned by the jury.

Therefore, we conclude that the trial court erred in denying defendant’s motion for new trial. Defendant’s remaining enumerations of error need not be addressed as they are either lacking in merit, rendered moot by our holding in Division 2, or unlikely to recur upon the retrial of the case.

Judgment reversed.

Cooper, J., concurs. Beasley, P. J., concurs specially.

Decided June 15, 1993.

James D. Stokes, for appellant.

W. Glenn Thomas, Jr,, District Attorney, C. Keith Higgins, As sistant District Attorney, for appellee.

Beasley, Presiding Judge,

concurring specially.

I agree that the information upon which the magistrate determined that there was probable cause to believe that a crime had been committed and that defendant had committed it was insufficient. There was no information on the source of the affiant police officer’s knowledge as to these two factors. He merely swore what had occurred and who had committed the acts; he failed to reveal how he knew it. The latter is necessary so the magistrate can make an independent judgment as to whether the source of the information is reliable. Devier v. State, 253 Ga. 604, 610 (5) (323 SE2d 150) (1984); Cofield v. State, 247 Ga. 98, 109 (5) (274 SE2d 530) (1981). An officer’s long-time experience on a police force is not a substitute for an independent judicial examination of source.

We conclude that if the arrest was without probable cause, defendant’s inculpatory statement would have been inadmissible. This is not always so because, as applied in Dunaway v. New York, 442 U. S. 200, 216 (99 SC 2248, 60 LE2d 824) (1979), it is a separate question “whether the connection between [the] unconstitutional police conduct and the incriminating statements . . . obtained during [the] illegal detention was nevertheless sufficiently attenuated to permit the use at trial of the statement. . . .” The factors present in this case establish that defendant’s statement was an exploitation of the illegal arrest. Consequently, as recognized in Ryals v. State, 186 Ga. App. 457, 458 (2) (367 SE2d 309) (1988), even if the statement was voluntary for Fifth Amendment purposes, it is inadmissible due to Fourth Amendment concerns.

Of course, defendant need not reach out to the federal constitution for protection of the right asserted here. The Georgia Bill of Rights gives assurance that “the right of the people to be secure in their persons . . . against unreasonable seizure shall not be violated.” To secure this guarantee, it demands that “no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the . . . persons ... to be seized.” 1983 Ga. Const., Art. I, Sec. I, Par. XIII. OCGA § 17-4-41 does not address probable cause but requires a specific description of the crime, to include the answers to the questions when, where, against whom, and what. Probable cause answers a threshold question, why do you believe this occurred, that is, upon what do you base this belief? The answer to this question is what the affidavits for Pitts’ arrest lack.


text:
    A93A0146.
    WALKER, DADE & CATOOSA COUNTIES HOSPITAL AUTHORITY v. CLARK et al.
    (432 SE2d 647)
   Cooper, Judge.

While visiting a patient at the Hutcheson Medical Center, appellee slipped and fell on a wheelchair ramp in the sidewalk outside the hospital. The ramp was painted bright yellow and sloped about four inches into a parking lot paved with black asphalt. At the time of appellee’s fall, the sidewalk was wet from a recent rain. Appellee testified in her deposition that she moved over on the sidewalk to allow room for an approaching person, and when she hit the yellow paint it was “slick as glass” and “threw” her. She sought damages against appellant, d/b/a the Hutcheson Medical Center, for maintenance of unsafe premises, alleging that she had no opportunity to ascertain that the ramp’s surface had been made so slick by the paint. The trial court denied the appellant’s motion for summary judgment under the authority of Whitley v. Hulon, 194 Ga. App. 363 (390 SE2d 598) (1990), and we granted its application for interlocutory review.

Appellant contends it breached no duty of care to appellee because it provided notice and warning of the sloping ramp by painting it yellow. Further, although appellee maintained that the ramp’s surface was too slick, she admitted seeing the yellow paint and knowing the ramp was wet when she stepped on it. Appellee presented no evidence of superior knowledge on the part of the hospital authority of a dangerous or defective condition, and the hospital authority established that no other falls had been reported in that area and that it was unaware of any dangerous condition where the appellee fell.

We conclude that the trial court’s reliance upon Whitley was misplaced, as it is distinguishable on its facts. The wheelchair ramp on which the plaintiff fell in Whitley was the same color as the parking lot, and plaintiff alleged that this prevented her from ascertaining the degree of the slope and that she might have noticed the danger had the slope been painted a different color from the parking lot. Moreover, the defendant was aware that another customer had previously fallen at the same place, but no steps were taken to prevent or warn of the dangerous condition. The majority of this court in a 5-4 decision reversed the trial court’s grant of summary judgment to the defendant, holding that “[w]hether plaintiff exercised a reasonable lookout and whether defendant should have painted the slope, erected a guardrail or posted warning signs are questions of fact which should be resolved by a jury. [Cit.]” Id. at 364.

Decided June 15, 1993.

Watson & Dana, H. Kimbrell Sawyer III, for appellant.

Renzo S. Wiggins, for appellees.

Holdings more applicable to the situation here may be found in cases such as Sullivan v. Quisc, Inc., 207 Ga. App. 114 (427 SE2d 86) (1993); Powell v. Woodridge Condo. Assn., 206 Ga. App. 176 (424 SE2d 855) (1992); Sinclair v. Orozco, 205 Ga. App. 498 (423 SE2d 25) (1992); and Baldwin County Hosp. Auth. v. Martinez, 204 Ga. App. 840 (420 SE2d 760) (1992). These decisions turn on the principle that there must be a showing by the plaintiff of superior knowledge on the part of the defendant of the existence of any alleged defect to place on the defendant the duty to warn, upon which liability is premised, viz.: “Even if the slope of the [ramp] created a hazardous condition, that the condition was open and obvious is illustrated by [the plaintiff’s own testimony]. . . . Thus, the condition could have been discovered and avoided by the plaintiff in the exercise of ordinary care and defendant is entitled to summary judgment because the facts show plaintiff’s equal knowledge of the condition.” Sullivan, supra, at 115. It follows that summary judgment should have been entered here in favor of the appellant.

Judgment reversed.

Beasley, P. J., concurs. McMurray, P. J., concurs in judgment only.