author: Andrews, Judge. Blackburn, Judge, Ruffin, Judge,

text:
    A95A1549.
    BAILEY v. THE STATE.
    (465 SE2d 284)
   Andrews, Judge.

This case is before us on appeal from the trial court’s denial of David Bailey’s motion to dismiss and plea of former jeopardy. The sole question presented is whether there was a “manifest necessity” for the trial court’s sua sponte declaration of a mistrial. We hold there was.

On August 10, 1992, shortly after midnight, a state patrolman stopped Bailey after he noticed Bailey’s truck weaving back and forth and crossing over the centerline of the highway. The officer testified he could smell alcohol when Bailey stepped out of the truck and Bailey appeared flushed and unsteady on his feet. The officer informed Bailey he was going to take him in for a blood alcohol test and read Bailey the Implied Consent Warning. Bailey agreed to submit to the test. The results of the Intoximeter 3000 test showed Bailey’s blood alcohol level to be .18 grams percent.

Initially, Bailey was charged with driving with an alcohol concentration of .10 grams or more under OCGA § 40-6-391 (a) (4). Prior to trial, the court allowed an amendment to the accusation to add a charge under OCGA § 40-6-391 (a) (1), driving under the influence to the extent that it was less safe for him to do so.

On August 11,1994, the case came on for a bench trial and Bailey objected to the admission of the evidence of the blood alcohol test results. Bailey contended that the results of the Intoximeter test were inadmissible since the implied consent warning was so vague that he was not aware that he could request an independent test administered by someone of his own choosing. The court reserved ruling on the admissibility of the test results until the close of the evidence and requested both sides to submit briefs on the issue.

On November 15, 1994, the trial judge entered an order ruling the results of the blood alcohol test inadmissible since Bailey had not been informed specifically that he could have an independent blood alcohol test performed by a person of his own choosing. In that same order, the trial court went on to state: “However, the Court, sitting as the trier of fact, has both heard and seen the results which the Court has excluded. The Court is unable to remove such results from its consideration of this case. For such reasons the court hereby grants Defendant’s Motion In Limine seeking to exclude results of the State administered chemical test. The Court further grants Defendant a Mistrial and assigns this case for trial by jury, where the State is hereby barred from introducing any evidence concerning the State administered blood alcohol test.”

Bailey filed a motion to dismiss and plea of former jeopardy, pointing out that he had neither moved for, nor consented to, a mistrial and the court’s order assigning the case to a jury was placing him in double jeopardy. The State responded to this motion by agreeing that Bailey was being placed in double jeopardy and moved for an order setting aside the order granting a mistrial. The State requested that the trial court enter a judgment based on the admissible evidence adduced at trial.

On February 14, 1995, the trial court denied Bailey’s motion to dismiss as follows: “as explained in this Court’s order dated November 15, 1994, the Court granted a mistrial because it would have been impossible to proceed with the trial without causing manifest injustice to the Defendant. For such reason, and pursuant to OCGA § 16-1-8 (e) (2) (B), Defendant’s Motion is hereby Denied.” Bailey now appeals this denial of his motion and plea in bar, contending there was no manifest necessity for declaring a mistrial and, therefore, the judge erred in ordering a mistrial without his consent.

The Georgia Constitution guarantees that no one shall be put in jeopardy more than once for the same offense except when a new trial is granted after a conviction or when a mistrial is declared. Constitution of the State of Georgia of 1983, Art. I, Sec. I, Par. XVIII. In a bench trial, a person is placed in jeopardy after the first witness is sworn and before findings are made by the trier of fact. OCGA § 16-1-8 (a) (2). Therefore, there is no question that jeopardy attached in this case and the inquiry becomes whether or not the declaration of a mistrial was improper.

The court’s order of February 14, 1995 denying Bailey’s motion to dismiss and plea of former jeopardy gives two reasons for declaring the mistrial. First, the explanation given in the November 15, 1994 order, i.e., that it could not remove the test results from its consideration, and second, OCGA § 16-1-8 (e) (2) (B), which provides that termination of the trial is not improper if the trial court finds that termination is necessary due to prejudicial conduct in or out of the courtroom which makes it impossible to proceed with the trial without injustice to the defendant.

The trial court’s citing of the Code section on “prejudicial conduct” is confusing because the order does not explain what it means by the term and both the State and the defendant contend that there has never been any prejudicial conduct in connection with this case. Therefore, the only clear reason given by the court for declaring a mistrial is the court’s inability to remove the results of the blood alcohol test from its consideration of the case.

“If a mistrial is declared without a defendant’s consent or over his objection, the defendant may be retried only if there was a ‘manifest necessity’ for the mistrial.” Smith v. State, 263 Ga. 782, 783 (439 SE2d 483) (1994). The doctrine of manifest necessity requires the trial judge not to foreclose the defendant’s option to have his trial completed in a particular tribunal “until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” Foody v. State, 205 Ga. App. 666, 667 (423 SE2d 423) (1992) (quoting United States v. Dinitz, 424 U. S. 600, 606-607 (II) (96 SC 1075, 47 LE2d 267) (1976). “Because of the severe consequences of ordering a mistrial without the [defendant’s] consent, a trial court should give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic alternatives.” Stevens v. State, 215 Ga. App. 718, 719 (452 SE2d 176) (1994).

In determining whether the trial judge’s inability to disregard the inadmissible evidence rises to the level of “manifest necessity” for declaring a mistrial, the court notes at the outset that it is well established that the trier of fact, whether it be judge or jury, is required to consider only admissible evidence and must be able to disregard evidence found to be inadmissible. Indeed, when the judge sits as the trier of fact, it is presumed that he will consider only legally admissible evidence. Daniels v. State, 211 Ga. App. 23, 25 (438 SE2d 99) (1993).

It is highly unusual for a judge to declare that he is unable to disregard inadmissible evidence. However, it may be that there are instances where evidence is so prejudicial that it will influence the judge’s decision in spite of the fact that it is not legally admissible.

The Supreme Court has held that discovery of juror bias during trial warrants the declaration of a mistrial. Downum v. United States, 372 U. S. 734, 736 (83 SC 1033, 10 LE2d 100) (1963). Further, in a case similar to this one, a Pennsylvania court found that when the trial judge sitting as factfinder recognizes that he has a bias and rules a mistrial, this clearly constitutes a manifest necessity such that a retrial would not violate a defendant’s double jeopardy rights. Commonwealth v. Smith, 467 A2d 888, 891 (Pa. 1983).

We agree that where the reason for declaring a mistrial is bias on the part of the factfinder, the trial court’s decision to declare a mistrial is entitled to the highest deference. See Wilson v. State, 217 Ga. App. 544, 545 (458 SE2d 486) (1995). Although we have held that the trial court must consider less drastic alternatives prior to declaring a mistrial, there appear to be no alternatives for the trial judge to consider in this situation. Wilson, supra at 545-546. Therefore, we find that, in this instance, the trial judge’s inability to disregard evidence he ruled inadmissible constitutes a manifest necessity for a mistrial. Accordingly, Bailey’s double jeopardy rights will not be violated by a retrial to a jury.

Judgment affirmed.

Beasley, C. J., McMurray, P. J., Birdsong, P. J., Pope, P. J., and Johnson, J., concur. Blackburn, Smith and Ruffin, JJ., dissent.

Blackburn, Judge,

dissenting.

I must respectfully dissent with the judgment reached by the majority. In this case, the defendant did nothing to contribute to any dilemma in which the court found itself. The defendant did not request the mistrial and objected strenuously thereto. I agree with the majority that the only basis available under these facts for declaring a mistrial is a proper finding of “manifest necessity” for doing so.

“The power of a trial court to interrupt the proceedings on its own or the prosecutor’s motion by declaring a mistrial is subject to stringent limitations. Retrial is permissible only if a manifest necessity existed for the declaration of the mistrial.” (Punctuation omitted.) Stevens v. State, 215 Ga. App. 718 (452 SE2d 176) (1994).

Here the trial court heard argument on defendant’s objection to the introduction of the breath test results at trial, took same under advisement and proceeded with the trial. Three months after the trial, the judge decided that he had been so affected by the existence of the breath test strip and the testimony related thereto, that he could not ignore same, and declared a mistrial. Whatever the trial court’s reaction to the breath test, he was fully aware of such feelings at the time he heard such testimony. The judge did not decide to grant the mistrial until three months after he received the briefs he requested from the parties and had decided defendant’s objection had to be sustained.

“Manifest necessity. Doctrine of ‘Manifest necessity’ which will authorize granting of mistrial in criminal case, and preclude defendant from successfully raising plea of former jeopardy, contemplates a sudden and overwhelming emergency beyond control of court and unforeseeable, and it does not mean expediency.” (Citation omitted; emphasis supplied.) Black’s Law Dictionary, 5th ed.

The majority’s reliance on Commonwealth v. Smith, 467 A2d 888 (Pa. 1983) is misplaced. That case dealt with the judge’s inability to be objective after he recognized witnesses in the case. A finding of “manifest necessity” for a mistrial in a bench trial setting is appropriate in such circumstances as the defendant does not have the opportunity to “strike” potential members from serving as triers of fact.

The facts of this case do not support a finding that a manifest necessity existed for the declaration of a mistrial pursuant to OCGA § 16-1-8.1 would find that the trial court erred in denying defendant’s motion to dismiss and plea of former jeopardy.

I am authorized to state that Judge Smith joins in this dissent.

Ruffin, Judge,

dissenting.

I respectfully dissent from the majority’s opinion because retrial subjects Bailey to double jeopardy in violation of the Georgia Constitution. Ga. Const., Art. I, Sec. I, Par. XVIII. I believe the trial court abused its discretion in sua sponte declaring a mistrial in excess of three months after the trial’s conclusion.

It has long been established that double jeopardy bars retrial following a mistrial contested by a defendant absent a showing of manifest necessity. Oregon v. Kennedy, 456 U. S. 667, 672 (102 SC 2083, 72 LE2d 416) (1982). While the concept of manifest necessity admits of no precise definition, it “exists where, due to circumstances beyond control of the parties and court, it becomes no longer possible to conduct the trial, or to reach a fair result based upon the evidence.” (Citation and punctuation omitted.) People v. Turner, 434 NE2d 428, 431 (111. App. Ct. 1982); Abdi v. Georgia, 744 F2d 1500 (11th Cir. 1984). In applying this rather nebulous but important concept, courts have looked to the causes of the mistrial and viewed them on a spectrum. “At one extreme are cases in which a prosecutor requests a mistrial in order to buttress weaknesses in his evidence. ... At the other extreme is the mistrial premised upon the trial judge’s belief that the jury is unable to reach a verdict.” Burleson v. State, 259 Ga. 498, 500 (384 SE2d 659) (1989) (quoting Arizona v. Washington, 434 U. S. 497, 505-509 (98 SC 824, 54 LE2d 717) (1978)). When the facts supporting mistrial are unforeseeable, a finding of manifest necessity is justified. See, e.g., Commonwealth v. Smith, 467 A2d 888 (Pa. 1983); Black’s Law Dictionary, 963 (6th ed. 1990) (defining manifest necessity as “a sudden and overwhelming emergency beyond control of court and unforeseeable”). In determining whether the trial court properly found manifest necessity for a mistrial, defendants’ valued right to have their trials decided by a particular tribunal must be considered. United States v. Jorn, 400 U. S. 470, 484 (91 SC 547, 27 LE2d 543) (1971).

The cause of the mistrial was clearly foreseeable in this case. By indulging in the usual practice of deferring a ruling on the motion to suppress until after the bench trial, the court ran the predictable risk of being prejudiced by the evidence presented. The circumstances precipitating the mistrial in this case were not sudden or beyond control of the court. They arise in virtually every bench trial where evidentiary rulings which go to the heart of the case are deferred until all the evidence has been heard, and the court takes under consideration evidence it knows is not admissible. But a judge trained in the law is expected to be able to distinguish between admissible and inadmissible evidence. While the trial court’s candor is commendable, this is not a case where the inadmissible evidence is so emotionally charged that no reasonable person could disregard it. If the ability to make this distinction is not required of trial courts as a matter of course, how can we ever expect a jury to follow a trial court’s curative instructions to disregard evidence in similar circumstances? In granting the mistrial under these circumstances, the trial court deprived Bailey of his right to the tribunal of his choice and ultimately placed him in jeopardy of his liberty more than once for the same offense. Ga. Const., Art. I, Sec. I, Par. XVIII. By condoning this practice, the majority promotes expedience at justice’s expense. Because manifest necessity did not justify the mistrial, I believe double jeopardy bars retrial in this case.

I am authorized to state that Judge Blackburn and Judge Smith join in this dissent.

Decided December 1, 1995

Starling & Starling, Donald A. Starling, for appellant.

Rebecca L. Sims, Solicitor, for appellee.

       This fact distinguishes Commonwealth v. Smith, supra, on which the majority relies. In Smith, the judge sua sponte directed the withdrawal of the defendant’s jury trial waiver after questioning his ability to be fair when he recognized witnesses about to testify. This was an event which took the court by surprise.


source: Caselaw Access Project

author: Beasley, Chief Judge.

license: Public Domain

text:
    A95A1695.
    LEE v. CITY OF ATLANTA.
    (464 SE2d 879)
   Beasley, Chief Judge.

Condemnee Lee appeals the grant of summary judgment to the City of Atlanta. The City brought a condemnation action to acquire access rights to a parcel owned by Crane abutting Cleveland Avenue in Atlanta. It named Lee as one of the persons “who owns interests in the Property or whose rights are to be taken or affected” and identified his easement. Lee owned both the parcel behind Crane’s and a recorded easement providing access to Cleveland Avenue through Crane’s property. In another action, the City condemned a right-of-way on property adjoining Lee’s property with access to Cleveland Avenue. A special master awarded compensation for the condemnation in this case to Crane but refused to grant Lee an award for his easement. Lee answered and appealed to the superior court in accordance with OCGA § 22-2-112.

The City moved for summary judgment against Lee on March 17, but Lee did not file his response until May 3, 17 days after the 30-day response period provided by USCR 6.2 expired. He moved for an extension of time on May 18. The superior court entered a final order granting summary judgment, basing its decision on its finding that failure to file a timely response within the specified 30-day time period was not a result of excusable neglect.

1. Appellant has not complied with Court of Appeals Rule 27 (c) (3), which simply requires that references be made to the record and transcript at which may be found the support for statements made in the brief. This has necessitated the Court’s search, a time-consuming task which duplicates the undocumented work done by the parties. The rule does no more than provide that this information be shared with the Court so that it can devote its attention to resolving the issues, rather than to technical preparations. Parties who neglect or refuse to abide by the Rules of Court risk contempt, dismissal of the appeal, and striking of the brief. Court of Appeals Rule 7. Soltow v. State, 182 Ga. App. 716, 718 (1) (356 SE2d 750) (1987) (Beasley, J., concurring specially). With increasing caseloads on this Court, and a finite amount of time to resolve them and meet the constitutional deadline, it may soon become imperative to invoke these sanctions. We will not do so in this case.

2. Lee first contends, correctly, that the superior court erred as a matter of law by granting a “default” summary judgment. “By failing to respond to a motion for summary judgment, a party merely waives his right to present evidence in opposition to the motion. It does not automatically follow that the motion should be granted. ‘A motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and the evidence that the party so moving is entitled to prevail.’ [Cits.]” McGivern v. First Capital Income Properties, Ltd., 188 Ga. App. 716, 717 (1) (373 SE2d 817) (1988). See also Ackerman & Co. v. Lostocco, 216 Ga. App. 242, 244 (454 SE2d 792) (1995); Wilson v. Valentine, 199 Ga. App. 244 (1) (404 SE2d 600) (1991). On an unopposed motion for summary judgment, the court must still determine if, viewed in a light most favorable to the nonmovant, there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Although the superior court did not determine whether a condemnation of an easement of access by the City is a compensable taking, it is incumbent on this Court to do so as this is a de novo review. See Dept. of Transp. v. Taylor, 264 Ga. 18, 21 (4) (440 SE2d 652) (1994). If a compensable taking has not occurred, summary judgment is appropriate; if a taking has occurred, summary judgment is premature, and the case must be remanded for jury determination of just and adequate compensation. See, e.g., State Hwy. Dept. v. Thompson, 112 Ga. App. 488 (145 SE2d 784) (1965). For the reasons set out below, the City was not entitled to summary judgment as a matter of law, based on the record even without appellant’s response to the motion.

3. The condemnor City maintains that Lee’s easement was not a compensable property interest. This position is directly contrary to its act of condemning, in a separate action, a right-of-way easement on an existing driveway through a tract to the west of appellant Lee’s parcel, for which it had to pay. As provided in OCGA § 32-3-1, rights of access are included as property interests which are acquirable by government for transportation purposes.

The condemnor’s position in this case is also contrary to law. “An easement is an interest which one person has in the land of another.” Restatement of the Law of Property (1944), p. 2902, § 450. See also Barton v. Gammell, 143 Ga. App. 291, 293 (238 SE2d 445) (1977), citing 25 AmJur2d 419, Easements & Licenses, § 3. “ ‘Interest’ means any title or nontitle interest other than fee simple title.” OCGA § 22-1-1 (1).

“An easement is extinguished by a taking by eminent domain of the servient tenement, or of an interest therein, to the extent to which the taking permits a use inconsistent with the continuance of the use authorized by the easement.” Restatement of the Law of Property, p. 3092, § 507. “Upon the extinguishment of an easement by eminent domain, the owner of the easement is entitled to compensation measured by the value of the easement.” Restatement of the Law of Property, p. 3095, § 508.

The City correctly cites MARTA v. Datry, 235 Ga. 568, 575 (220 SE2d 905) (1975), for the proposition that “[t]he right of access, or easement of access, to a public road is a property right which arises from the ownership of land contiguous to a public road, and the landowner cannot be deprived of this right without just and adequate compensation being first paid.” It also points to the principle that “[t]he loss of the right of access to and from the highway abutting those portions of the land which were not taken . . . [is] only an element of consequential damages to the remaining estate.” Klumok v. State Hwy. Dept., 119 Ga. App. 505, 507 (167 SE2d 722) (1969). The City incorrectly deduces from these principles that Lee as a non-contiguous property owner is prohibited from being compensated. We clarified this issue in State Hwy. Dept. v. Price, 123 Ga. App. 655 (182 SE2d 175) (1971), indicating that Klumok and the line of cases following stand only for the proposition that right of access to a new limited access highway does not constitute a separate taking, but is only an element of consequential damages to the remaining property. “These cases do not stand for the proposition that where access easements are specifically condemned, they are only compensable as an element of consequential damages.” (Emphasis omitted.) Price, supra at 656. Lee’s access easement was specifically condemned and his interest thus extinguished. For this, he is entitled to compensation.

Unlike the owners of land contiguous to condemned property in Exxon Corp. v. Dept. of Transp., 202 Ga. App. 43 (413 SE2d 238) (1991), and Ga. Power Co. v. Bray, 232 Ga. 558 (207 SE2d 442) (1974), cited by the City, Lee is not requesting consequential damages for loss of value to the parcel of property he owns in fee simple as a result of the taking of Crane’s property. Rather, he is claiming compensatory damages for the taking of his own easement.

The City also maintains that Lee’s situation is indistinguishable from that of the contiguous landowners in cases such as Tift County v. Smith, 219 Ga. 68 (131 SE2d 527) (1963); Horton v. City of Atlanta, 116 Ga. App. 350 (157 SE2d 501) (1967) and State Hwy. Dept. v. Bell, 113 Ga. App. 768 (149 SE2d 752) (1966). In those cases, the landowners could not recover for inconvenience resulting from the blocking of a public road. Lee seeks recovery for actual loss of a property interest, not mere inconvenience.

Decided December 1, 1995.

Glaze, Glaze & Fincher, Steven M. Fincher, William A. Grabbe, for appellant.

Clifford E. Hardwick IV, Bruce P. Johnson, for appellee.

4. He further maintains that the superior court erred in that a genuine issue of material fact remains as to what is just and adequate compensation for the extinguishment of his easement. The proper measure of damages would be the difference in the “market value” of the easement immediately before and immediately after the taking. See State Hwy. Dept. v. Thompson, 112 Ga. App. 488 (145 SE2d 784) (1965).

Generally, the issue of whether compensation is just and adequate is a jury question, not susceptible to summary judgment. See State Hwy. Dept. v. Thompson, supra; Municipal Elec. Auth. &c. v. Anglin, 180 Ga. App. 600, 601 (349 SE2d 546) (1986). The burden of proving just and adequate compensation is on the condemnor, State Hwy. Dept. v. Lumpkin, 222 Ga. 727 (152 SE2d 557) (1966); Dawson v. Dept. of Transp., 203 Ga. App. 157, 158-159 (2) (416 SE2d 163) (1992), which argues that no money was owed to Lee so it was not compelled to offer proof of value. The City’s failure to offer evidence that the easement had no value did not meet its burden.

5. Lee’s final enumeration is that the City is not entitled to summary judgment because there is a genuine issue of material fact as to whether the newly condemned right-of-way on property adjacent to his justly and adequately compensates him for the loss of access by way of his easement. This, too, is a question of fact. A jury could decide, for example, that condemning a public right-of-way that provides Lee access is not adequate compensation for the taking of his easement, especially since the new right-of-way is 12 feet wide and runs through a cemetery, while the old easement was 20 feet wide. The City as condemnor was not entitled to impose a unilateral “exchange” on Lee. In addition, there is no indication any actual “exchange” took place. The City acquired the separate right-of-way but nothing in the record indicates that the easement was subsequently conveyed to Lee as an “exchange” for his easement, or that it was dedicated to public use, or even that it was available for Lee’s use.

Judgment reversed and case remanded.

Pope, P. J., and Ruffin, J., concur.


text:
    A95A1729.
    In the Interest of I. B., a child.
    (464 SE2d 865)
   Beasley, Chief Judge.

On September 13, 1993, officials at I. B.’s school noticed that he had bruises on his neck and back and reported that fact to county officials. I. B. told the investigating officials that his father had slapped and kicked him. No criminal charges were brought, nor was a deprivation petition filed, but the father’s name was placed on the child abuse registry maintained by the Division of Family & Children Services of the Georgia Department of Human Resources. See OCGA § 49-5-180 et seq.

The following May, the father petitioned the juvenile court to expunge his name from the child abuse registry, pursuant to OCGA § 49-5-184 (c). He also challenged the constitutionality of the statute establishing the registry and by amendment to the petition explained his grounds on that issue. In an order dated November 1, 1994, the court granted the petition to expunge the name after finding that there was no reasonable basis for it to be maintained on the registry. In a later order, after receiving briefs on the constitutionality issue, the court declared the father’s challenge to be moot and not subject to an exception recognized in Chastain v. Baker, 255 Ga. 432 (339 SE2d 241) (1986). It thus did not rule on the issue and ended the matter on that note.

Appeal was taken to the Supreme Court of Georgia on the ground that the Georgia Constitution, Art. VI, Sec. VI, Par. II (1), gave it exclusive jurisdiction for the reason that the appeal involved the constitutionality of a statute. The Supreme Court held that it did not have jurisdiction because the only issue raised was the legal validity of the trial court’s ruling, and it transferred the appeal to this Court, citing Alexander v. State, 239 Ga. 810 (239 SE2d 18) (1977). In that case, which did not result in transfer, the Supreme Court refused to rule on the constitutionality of two statutes because the challenge was raised for the first time on appeal; the trial court had not ruled on it, and thus there was no ruling to review. In other words, the prescribed process for attacking the constitutionality of a statute was not followed, so the issue was not decided.

That, of course, is not the same situation here. Appellant did raise the issue in the trial court, but a ruling was aborted. The court deemed the issue moot and not saved by the practical consideration that the court perceived sometimes justifies deciding a moot issue, i.e., that it is “capable of repetition yet evades review.”

The question, then, is whether the trial court was deprived of jurisdiction by circumstances which occurred after the petition was filed, or whether the petitioner was entitled to a ruling on the constitutionality issue. To answer the question, we must consider the extent of the trial court’s authority. Is judgment foreclosed when the issue is moot, or is there an exception which either compels the court to rule or which allows the court to exercise discretion to rule in spite of its mootness? We must decide this in order to know whether to apply the abuse of discretion standard or a legal error standard. Compare Central of Ga. R. Co. v. Lightsey, 198 Ga. App. 59, 60 (1) (400 SE2d 652) (1990) (application of abuse of discretion standard, which “ ‘has been described as allowing a range of choice for the (lower) court, so long as that choice does not constitute a clear error of judgment. (Cit.)’ ”); Harper v. Landers, 180 Ga. App. 154, 157-158 (348 SE2d 698) (1986) (application of plain error standard, leading to conclusion that trial court erred “as a matter of law”). Mills v. State, 188 Ga. 616, 624-625 (4 SE2d 453) (1939), discusses the exercise of judicial discretion versus deciding questions of law, and Strickland v. State, 199 Ga. 792, 795-796, 801 (35 SE2d 463) (1945), measures a trial judge’s exercise of discretion by the appellate standard of error of law and concludes that the trial court’s decision exceeded the bounds of his judicial discretion and constituted a legal error. See also Court of Appeals Rule 27 (a) (3) and (b) (2).

First, there is no question that a trial court cannot issue advisory opinions. Throughout Article VI of the Georgia Constitution, jurisdictional authority is given over “cases.” “Cases” are live disputes, actual controversies. “Not even in a declaratory judgment action is the court permitted to render an advisory opinion. [Cit.]” McDowell v. Judges Ex Officio, 235 Ga. 364, 365 (219 SE2d 713) (1975). The Declaratory Judgment Act itself makes that plain, by allowing only “[i]n cases of actual controversy” what otherwise might be considered advisory opinions. See Calvary Independent Baptist Church v. City of Rome, 208 Ga. 312 (3) (66 SE2d 726) (1951); Brown v. Lawrence, 204 Ga. 788, 790 (51 SE2d 651) (1949). As noted in Felton v. Chandler, 75 Ga. App. 354, 361 (43 SE2d 742) (1947), “if an action for a declaration raises issues which are . . . moot, the Georgia statute is not applicable, and the action must be dismissed as decisively as would be any other action presenting the same non-justiciable issues.”

The role of the judiciary is to address “justiciable cases.” Thompson v. Talmadge, 201 Ga. 867, 874 (1) (41 SE2d 883) (1947). “A controversy is justiciable when it is appropriate for judicial determination. It must be definite and concrete, touching the legal relations of parties having adverse legal interests, rather than being hypothetical, abstract, academic or moot.” Allstate Ins. Co. v. Shuman, 163 Ga. App. 313, 315 (3) (293 SE2d 868) (1982). “A controversy is ‘justiciable’ when there are interested parties asserting adverse claims upon an accrued state of facts. [Cit.]” Mayor &c. of Savannah v. Bay Realty Co., 90 Ga. App. 261, 262 (1) (82 SE2d 710) (1954). Bankers Life &c. Co. v. Cravey, 90 Ga. App. 113, 119 (82 SE2d 150) (1954), clearly states: “The courts do not concern themselves with the solution of academic problems or the determination of dead issues.”

Even more recently, the Supreme Court implied that moot matters pending before trial courts should not be decided, in Hutchinson v. Composite State Bd. of Med. Examiners, 263 Ga. 186 (1) (429 SE2d 661) (1993). The trial court refused to consider a moot issue, and the Supreme Court agreed with the trial court that it was moot. It did not say the trial court should have considered ruling anyway on the basis of the repetitive yet evading review test. Instead, it applied the test to its own jurisdiction, intimating that it was a test of appellate review.

Likewise in Bowers v. Bd. of Regents &c. of Ga., 259 Ga. 221 (378 SE2d 460) (1989), where the Court noted that a moot issue “most assuredly would result in a second dismissal by the trial court, this time on the ground of mootness.” See also Mulling v. Wilson, 245 Ga. 773, 774 (267 SE2d 212) (1980), which addresses the trial court’s ruling that an issue before it was not moot.

The same parameter of judicial power exists in the appellate courts, at least statutorily. The Appellate Practice Act compels both courts to dismiss appeals “[w]here the questions presented have become moot.” OCGA § 5-6-48 (b) (3). Chastain, supra, 255 Ga. at 433. As recently repeated by the Supreme Court in Cheeks v. Miller, 262 Ga. 687, 688 (425 SE2d 278) (1993): “ ‘The existence of an actual controversy is fundamental to a decision on the merits by this court.’ Bowers[, supra]. A controversy is justiciable when it is definite and concrete, rather than being hypothetical, abstract, academic, or moot. Board of Trustees v. Kenworthy, 253 Ga. 554, 557 (322 SE2d 720) (1984). Similarly, federal courts employ the doctrine of ‘ripeness’ under the Article III requirement of a ‘case or controversy.’ See Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction No. 2d, § 3532.” Although “case and controversy” language is not included in the Georgia Constitution, an actual controversy must exist, or the issue is moot for appellate review. Bowers, supra.

It would be anomalous if the law allowed a pleader to hurdle the mootness bar in the trial court and obtain an advisory opinion which is not reviewable by the appellate court because the bar is placed in the way at that level. In this case we could have a decision of a juvenile court, a court of limited jurisdiction under the Constitution, declaring a state statute unconstitutional, but its decision would not be reviewable by the state’s highest court, which has exclusive appellate jurisdiction of such issues. 1983 Ga. Const., Art. VI, Sec. III, Par. I, and Sec. VI, Par. II (1).

Having established that judicial jurisdiction does not encompass moot issues, we now address whether the case was moot when the trial court declined to address the constitutional issue. It certainly was, insofar as petitioner himself was concerned. His name was ordered expunged, and this was the only substantive personal relief he sought, other than attorney fees. “ ‘ “A moot case is one which seeks to determine an abstract question which does not arise upon existing facts or rights.” ’ [Cit.]” Atlanta Gas Light Co. v. Ga. Public Svc. Comm., 206 Ga. App. 315, 316 (425 SE2d 340) (1992). But, argued petitioner, the issue is not moot because “the facts are capable of repetition and yet evade review,” citing Chastain, supra, 255 Ga. 432. The trial court refused to decide the issue and made a subtle but important distinction in its analysis. It found that petitioner’s challenge was moot “and does not fall within the narrow exception of cases which although moot, are capable of repetition, yet evade review.” It, too, cited Chastain, 255 Ga. 432. The distinction is notable because the trial court viewed there being an exception to the mootness doctrine, which if it exists would allow the court to render an advisory opinion. It did not find that this case fit within what it understood is an exception.

The same view is expressed in Chastain, 255 Ga. 432: “Of course, a case may be moot, but, because the error is capable of repetition and yet evades review, the appeal will be considered.” Id. at 433. Which is the correct view, that in order to be decided, an issue must not be moot period or that it may be moot but come within an exception? Because advisory opinions are forbidden, it must be found that the issue is not moot. The two factors to be considered test mootness; they do not carve out an exception. Although the Georgia appellate courts, in developing and applying the “capable of repetition yet evading review” test for justiciability, purportedly created an exception, they have depended repeatedly on the opinions of the United States Supreme Court. That Court fashioned the doctrine to address more realistically the definition of “moot.”

The first appearance of the test in Georgia’s jurisprudence was not until 1974. Hudgens v. Local 315 &c., 133 Ga. App. 329, 331-332 (210 SE2d 821) (1974), was a declaratory judgment case, which expressly requires an actual controversy. It cited as its sources Southern Pacific Terminal Co. v. Interstate Commerce Comm., 219 U. S. 498 (31 SC 279, 55 LE 310) (1911), and Super Tire Engineering Co. v. McCorkle, 416 U. S. 115 (94 SC 1694, 40 LE2d 1) (1974). In applying the test in Hudgens, this court rejected the argument that the case avoided mootness, which was made on the ground that the problem was “ ‘capable of repetition yet evading review.’ ” Hudgens, supra at 332.

In Southern Pacific Terminal Co., involving a bill in equity to enjoin an administrative order, the United States Supreme Court refused to dismiss the appeal because it determined that the circumstances were such that the controversy was not moot nor the question terminated by the intervening expiration of the challenged ICC cease and desist order. It reasoned: “The question involved in the orders of the Interstate Commerce Commission are usually continuing (as are manifestly those in the case at bar), and these considerations ought not to be, as they might be, defeated, by short-term orders, capable of repetition, yet evading review, and at one time the government, and at another time the carriers, have their rights determined by the Commission without a chance of redress.” Id. at 515. Thus, the doctrine narrowing the definition of “moot” was first articulated.

Super Tire Engineering Co., supra, the other case depended on by the Georgia Court of Appeals, was decided the same year as Hudgens. It, like Hudgens, involved a petition for a declaratory judgment. The United States Supreme Court found the issue was not moot because, although the labor strike had been settled, the issue involved an extant and fixed and definite state government policy directive which affected the collective-bargaining relationship of petitioners and others in the management position. Thus, concluded the Court, its exercise of jurisdiction did not violate the “case or controversy” requirement of the United States Constitution’s Art. Ill, Sec. II or the Declaratory Judgment Act. Super Tire Engineering Co., supra at 121-124.

The year before, the Court had applied the Southern Pacific Terminal Co. doctrine in Roe v. Wade, 410 U. S. 113, 124-125 (93 SC 705, 35 LE2d 147) (1973): “Pregnancy provides a classic justification for a conclusion of nonmootness.”

Storer v. Brown, 415 U. S. 724, 739 (fn. 10) (94 SC 1274, 39 LE2d 714) (1974), an election case earlier in the same term of court as Super Tire Engineering Co., recites that the case is not moot because the circumstances are such that even though no effective relief can be provided to the immediate parties, the issue is justiciable because it is not only capable of repetition with respect to others, but it will also evade review.

A week later, in DeFunis v. Odegaard, 416 U. S. 312 (94 SC 1704, 40 LE2d 164) (1974), the Court explained the limited applicability of the doctrine and concluded that it did not save DeFunis’s claim from mootness and thus nonjusticiability under Article III of the Constitution. The Court noted that DeFunis “did not cast his suit as a class action.” Id. at 317.

The next year, in Sosna v. Iowa, 419 U. S. 393 (95 SC 553, 42 LE2d 532) (1975), the Court held that an issue is not moot in federal law if a controversy exists between a defendant and a member of the class represented by a plaintiff, even if the claim of the named plaintiff has become moot. Id. at 402. It was therefore justiciable.

In a class action case a month later, Gerstein v. Pugh, 420 U. S. 103 (95 SC 854, 43 LE2d 54) (1975), the Court was not concerned with whether any member of the class still had a live controversy. It exercised jurisdiction over the issue because, by its transient nature, it could always be moot by the time it was acted on judicially and yet it related to circumstances in which there always would be people with such a claim. Id. at 110, fn. 11.

Jurisdiction was found to exist in Gannett Co. v. DePasquale, 443 U. S. 368, 377 (99 SC 2898, 61 LE2d 608) (1979), because the controversy between the parties was not moot even though the order attacked had expired. To meet the Southern Pacific Terminal Co. test, the Court repeated two conditions it had earlier articulated: “ ‘(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again’ ” quoting from Weinstein v. Bradford, 423 U. S. 147, 149 (96 SC 347, 46 LE2d 350) (1975).

Thus, if we trace the doctrine forward from its origin in the United States Supreme Court through representative opinions, it is abundantly evident that the term “moot” is narrowly construed, sometimes to exclude from mootness a discrete universe besides the immediate parties, such as a certified or even an inherent class, in applying the test created to avoid mootness and thus loss of jurisdiction due to nonjusticiability.

Intrinsically insufficient time to obtain judicial relief for a claim common to an existing class of sufferers is the thread which runs through the cases in which the Supreme Court has found that the issue is not moot. It justifies the judicial doctrine related to jurisdiction, without which a decision would otherwise be foreclosed as resulting in an unauthorized advisory opinion because it does not resolve a “case or controversy” or a “live controversy.”

On the other hand, the Georgia appellate courts have construed the term “moot” broadly, focusing generally on the named party who is seeking redress, and ostensibly have created an exception to mootness so as to retain jurisdiction anyway. Chastain, supra, 255 Ga. at 433, illustrates this in the Supreme Court: “[A] case may be moot, but, because the error is capable of repetition and yet evades review, the appeal will be considered. [Cits.]” (Emphasis omitted.) According to Chastain, 255 Ga. 432, if the question is moot on appeal, the case need not be dismissed despite the mandate of OCGA § 5-6-48 (b) (3) if the alleged error “is capable of repetition and yet evades review.” (Emphasis omitted.) Also illustrative is Bowers, supra, especially in footnote 1: “A narrow exception to the actual controversy rule is that the question is ‘capable of repetition, yet evading review.’ This case does not fit within that exception. . . .” The Court cites its opinion in Chastain, 255 Ga. 432, and the United States Supreme Court opinion in DeFunis.

This Court followed suit in Froelich v. State, 210 Ga. App. 647, 649 (437 SE2d 358) (1993), where it conceded that the issue was moot as to petitioners, applied the test, and concluded: “We therefore cannot say that an advisory opinion is mandated in the case sub judice,” citing Chastain, 255 Ga. 432. In United Food &c. Union v. Amberjack, Ltd., 253 Ga. 438 (321 SE2d 736) (1984), the court agreed that the issue was moot but decided to “proceed to decide the issue recognizing that it is capable of repetition yet evades review.” But it cited Gerstein, supra. See also In the Interest of J. B., 199 Ga. App. 593 (405 SE2d 574) (1991); Chastain v. Baker, 178 Ga. App. 649 (344 SE2d 472) (1986), on remand.

So viewing mootness runs counter to the historical prohibition against advisory opinions. Other cases taking this anomalous two-step approach are: Caldwell v. Bateman, 252 Ga. 144, 145-146 (1) (312 SE2d 320) (1984); Poythress, supra at 453 (l); Wood v. Cole, 249 Ga. 389 (290 SE2d 927) (1982); Citizens for Ethical Govt. v. Gwinnett Place Assoc., 260 Ga. 245 (1) (392 SE2d 8) (1990); Bond v. Parten, 206 Ga. App. 88, 90 (424 SE2d 353) (1992); Atlanta Gas Light Co., supra, 206 Ga. App. at 317; Atlanta Gas Light Co. v. Ga. Public Svc. Comm., 212 Ga. App. 575, 577 (1) (442 SE2d 860) (1994); Hutchinson, supra at 187 (1); Kappers v. DeKalb County Bd. of Health, 214 Ga. App. 117, 118 (446 SE2d 794) (1994).

On the other hand, in R. W. Page Corp., supra at 578 (1), the Court did not separate the initial question of mootness from the “capable of repetition yet evades review” analysis.

Under the “exception” view, there is a problem with the transfer of this case by the Supreme Court to this Court in that if we decide the appellant’s challenge is moot, then we must stand in the shoes of the Supreme Court and decide if it would take jurisdiction of the issue of the statute’s constitutionality anyway as an exercise of discretion.

If this Court decides that the issue was not moot or warranted review because of its exceptional nature as otherwise being immune from review, then we would have to reverse the trial court order and remand the case for a decision on the constitutionality of the challenged statute. An appeal of that decision would lie in the Supreme Court of Georgia. If this Court decides the trial court was correct, then the Supreme Court could on certiorari disagree and still return the case to the trial court for an initial ruling on constitutionality.

If, on the other hand, we agree with the trial court and there either is no petition for certiorari or the Supreme Court declines review, that will be a final resolution of this case, and the question of constitutionality will remain unanswered. Even if we were to decide that the alleged error is capable of repetition and yet evades review, we could only bind the trial court by such a ruling; the Supreme Court could still decline to act if it is a discretionary matter. See Atlanta Gas Light Co., supra, 206 Ga. App. at 317, citing Chastain, supra, 255 Ga. 432, and a Missouri opinion. The Georgia Supreme Court, in Citizens for Ethical Govt., supra at 245 (1), pointed out that cases which are shown to fall within the narrow “exception” “may” be reviewed.

The purported discretionary nature of this exception-based jurisdiction is illustrated also in Hutchinson, supra; In the Interest of J. B., supra; American Cyanamid Co. v. Carter, 164 Ga. App. 538, 540 (1) (298 SE2d 276) (1982); Wood, supra; Caldwell, supra; United Food &c. Union, supra; Atlanta Gas Light Co., supra, 212 Ga. App. at 577 (1). Hutchinson held that the question did not meet the test because it was “not a situation in which issues, though moot, should be considered because they are capable of repetition, but may evade review,” citing Chastain, 255 Ga. 432.

But it cannot be a discretionary judgment call because, at the least, OCGA § 5-6-48 (b) requires dismissal of moot cases. It is a matter of jurisdiction or not, as the United States Supreme Court repeatedly recognizes. The proper approach is to consider the term “moot” practically and realistically, given the nature of the challenge and the posture of the challenger. Georgia courts, like federal courts, are prohibited from rendering advisory opinions. Creating exceptions based on nothing more than judicial prerogative thus exceeds the judicial power and allows the courts to avoid the hard analysis of whether the issue is moot. But that is the only question. If it is moot, it is not justiciable. It is not a matter of discretion.

Since we have been designated to review the question of justiciability, we proceed to that end, applying the same test to the trial court’s jurisdiction as would govern on appeal.

Appellant argues that the question is not moot because there is a “reasonable expectation of recurrence” and thus meets the first prong of the test. That is, he expects that his name would again be placed on the Child Abuse Registry because of a report that he was physically disciplining his child. This presupposes that the son again allegedly altered a school report or failed to give reports to his father or misbehaved in some other way, that this led to spanking or some other form of discipline which left a mark on the child, that it was noticed by someone who reported it, and that the authorities determined there was credible evidence of alleged abuse such that registry of the father’s name was required. OCGA §§ 49-5-183; 49-5-183.1.

All of this is speculative and does not rescue the constitutional issue from having become moot by expungement of the appellant’s name from the registry, which relief he sought by petition. His own “live controversy” lost its steam when the trial court granted his petition. Even if the statute were ultimately held unconstitutional by the Supreme Court in his case, the ruling would have no effect on him because it would be abstract; expungement left no existing facts or rights at stake. See Chastain, supra, 255 Ga. at 433. Appellant does not represent, and has never represented, a class of persons whose petitions were denied. As to what appellant fears may arise at a future date, we have no authority to render an advisory opinion. See Cheeks, supra at 689; Bd. of Commrs. of Walton County v. Dept. of Public Health, 229 Ga. 173, 175-176 (2) (190 SE2d 39) (1972); Froelich, supra at 649. Neither can the trial court merely advise I. B.’s father of the legal aspects of possible future consequences of possible future action on his part.

As to the second part of the test, the constitutionality of the statute does not inherently or eternally evade review, because anyone whose petition is denied can present it to the Supreme Court if it is properly raised and ruled on in the trial court. The Supreme Court concluded similarly in Hutchinson, supra. We did the same in Froelich, supra at 649, and in Atlanta Gas Light Co., supra, 212 Ga. App. at 578 (1). Froelich’s appeal was mandatorily dismissed as moot because the court found that although the alleged error was capable of repetition, it would not “eternally evade judicial review.”

Decided December 1, 1995.

Whiteman & Whiteman, Mary W. Whiteman, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Shalen A. Sgrosso, Assistant Attorneys General, Robert E. Hall, James W. Blount, for appellee.

Although the appellate courts in, e.g., Hutchinson, Froelich, and Atlanta Gas Light Co., 212 Ga. App. 575, concluded that there was no justification for rendering an advisory opinion, we hold instead that the issue was not saved from mootness, even applying a broad view of nonmootness as does the United States Supreme Court.

Appellant’s name has been expunged as he requested, and the question of the statute’s constitutionality, although it may be raised repeatedly, does not evade review. The trial court had no discretion to rule on it, and so it did not err in declaring the constitutional challenge moot, as it was compelled to do.

Judgment affirmed. Ruffin, J., concurs.

Pope, P. J., concurs in the judgment only.

         “Suits against” is the term in the Venue section; this by its nature means a live controversy.

       The jurisdiction delegated to the juvenile courts is over certain “matters” and “cases,” OCGA § 15-11-5; the jurisdiction of superior courts is over “all causes, both civil and criminal____” OCGA § 15-6-8 (1).

       In a line of criminal cases where the sentence expired before full adjudication of appellant’s claim, the United States Supreme Court developed the doctrine which avoids mootness by recognizing that criminal conviction “entail[s] adverse collateral legal consequences.” Sibron v. New York, 392 U. S. 40, 55-58 (88 SC 1889, 20 LE2d 917) (1968).

         On occasion the Georgia Supreme Court has looked beyond the named party to test mootness. See Mulling, supra (persons seeking review of issuance of peace bond); R. W. Page Corp. v. Lumpkin, 249 Ga. 576, 578 (1) (292 SE2d 815) (1982) (news media desiring presence at criminal trials and pretrial hearings); Poythress v. Moses, 250 Ga. 452, 453 (1) (298 SE2d 480) (1983) (attack on election statute); Multimedia WMAZ v. State, 256 Ga. 698, 699 (1) (353 SE2d 173) (1987) (media desire to attend judicial hearings in criminal cases); In re Jane Doe, 262 Ga. 389, 390, fn. 2 (418 SE2d 3) (1992) (hospital desire to de-escalate medical treatment; patient had died); In re L. H. R., 253 Ga. 439, 440 (321 SE2d 716) (1984) (same).

       Although a United States Supreme Court case is cited, it appears the court considered the issue moot but decided it anyway.

       Compare, as to this part of the test, Atlanta Gas Light Co., supra, 212 Ga. App. at 577 (1).


text:
    A95A1770.
    MARTIN v. THE STATE.
    (464 SE2d 872)
   Beasley, Chief Judge.

A jury convicted Martin of aggravated assault (OCGA § 16-5-21), rape (OCGA § 16-6-1), and terroristic threats and acts (OCGA § 16-11-37). Martin enumerates 14 errors, primarily challenging the sufficiency of the evidence and the trial court’s evidentiary rulings, none of which requires reversal.

Martin was a correctional officer at Bulloch County Correctional Institute (“BCCI”). The victim was a 19-year-old female with a tenth grade education. Her husband, an inmate, was on a work detail under Martin’s supervision. When the victim visited her husband, Martin indicated to her he knew the right people to help get her husband released. The husband provided Martin with the couple’s home telephone number because he trusted Martin, who reminded him of his own father. Martin called the victim several times, assuring that her husband would be released soon. During one conversation, Martin requested she meet him away from BCCI, at a location behind a certain grocery store. From there they drove to a motel supposedly to meet with influential officials, including the judge who had sentenced her husband. They waited about three hours until Martin announced that apparently the officials were not coming.

Shortly after this incident, the victim’s husband informed her that Martin told him that things were coming together and it seemed like he would be home soon. Martin again contacted the victim, asking that she meet him at the same parking lot at 7:30 p.m. Again they drove to the motel but did not stay. The victim believed they were going to meet people who could arrange her husband’s release. That night at Martin’s request and direction, she wrote in lipstick what appeared to be a series of blackmail notes. After driving to a secluded location, suddenly and without warning, Martin threatened her life and the life of her year-old boy and then sexually attacked her. He put a gun to her head and a knife to her throat. Attempting to resist, she tried to spray Martin with mace but he broke her finger, struck her in the face, beat her, and emptied the can of mace in her face. Martin also threatened to have her husband sent so far away she would not know his whereabouts, and he warned that he would make it appear as though she was blackmailing him.

A police officer encountered the victim in the grocery store parking lot at about 2:00 a.m. just after Martin dropped her off. Her hair was disheveled, her eyes were swollen as if she had been crying, and she attempted to conceal her lower lip. She rejected the officer’s offer to help, appeared “nervous and scared,” adamantly refused to tell him who hit her, and repeatedly said, “Please don’t touch me.” The officer considered the situation so abnormal that he called his sergeant, but the victim also refused the sergeant’s offer of assistance.

Shortly after leaving the officers, the victim went to the sheriff’s department in another county and reported the crimes to the sheriff, whom she knew. She was taken to a local hospital, and a rape kit was prepared. All the witnesses who saw her early that morning testified that she was terrified and had obvious injuries.

Martin testified that he was her victim, the sexual relationship was both consensual and mutual, and it had begun at her instigation and insistence. He claimed she had been blackmailing him, threatening to report him to the warden, and continually demanding money and conjugal visits with her husband. Martin testified that he paid her over $1,000 in cash and that she attempted to extort an additional $2,000 to “let me walk and leave me alone.” He confirmed there had been a “tussle” but claimed they struggled over a tape recorder he had used to attempt to obtain incriminating statements from her.

1. In Martin’s first three enumerations of error, he claims the verdict was contrary to the evidence, against the weight of the evidence, and contrary to the law and principles of justice and equity. Where the “general grounds” are raised, there is nothing for the appellate court to review except sufficiency of the evidence. Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).

The jury heard the victim describe in detail how she had been raped and how Martin had threatened her life and her child’s life if she reported him to authorities. The victim’s physical injuries were corroborated by numerous witnesses who testified on behalf of the State. Having reviewed the evidence in the light most favorable to the jury’s determination, leaving evidence weight and witness credibility to the jury, a jury could have found the defendant guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Witherspoon v. State, 262 Ga. 2 (412 SE2d 829) (1992); Crawford v. State, 245 Ga. 89, 90 (263 SE2d 131) (1980); Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994).

2. In his next three enumerations, Martin contends the evidence of similar transactions was improperly admitted.

(a) He claims the incident involving him and another young woman was not sufficiently similar as required by Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991).

The State’s evidence showed that in 1982, Martin tried to proposition 22-year-old Coleman when she came to visit her incarcerated brother, who was assigned to Martin’s work detail. Coleman testified that Martin wanted to trade favors and told her he could make it hard or easy on her brother. In both the instant case and that one, Martin used his authority and position as a corrections officer with a young female to initiate a sexual relationship. He approached both females, called them at their homes, and propositioned them to meet at a local motel. The State moved to introduce the uncharged incident to show common scheme, motive, identity, and intent.

The three requirements of Williams were satisfied. Martin was the perpetrator in both instances, they were strikingly similar, and the independent episode tended to prove the facts it was offered for. Similar transactions need not be identical. Sessions v. State, 207 Ga. App. 609 (428 SE2d 652) (1993).

(b) Martin claims that the State’s notice of its intent to introduce similar transactions violated USCR 31.1 because it was not timely, failed to meet the rule’s specificity requirements, was not given prior to the jury being impaneled, and prejudiced Martin’s right to a fair trial.

The jury was struck on September 9,1992. On September 18, notice of the State’s motion to allow evidence of similar transactions was served. A hearing was held on September 29, prior to the trial’s start. This complied with the ten-day notice requirement. As to specificity, the notice was facially incomplete because it failed to state the date, county, and name of the victim as required by USCR 31.3 (B). However, the record shows that eight months earlier, the State provided Martin’s attorney with the State’s witness list, which included the name and address of the proposed similar transaction victim, and a copy of her statement containing the basic facts that outlined her later testimony.

It is clear that Martin’s counsel already had knowledge of the information missing from the notice — date(s), county, and name of victim. Coleman’s statement is virtually identical to paragraph 2 A of the State’s notice. He also had notice of the State’s intent to call Coleman as a witness. Martin’s brief in support of his motion in limine, filed before the hearing, identifies the year of that incident in the earlier provided handwritten statement. In addition, Martin had subpoenaed Coleman as a witness and, prior to the similar transaction hearing, informed the court that she would be a defense witness.

A party seeking a reversal must show not only error, but injury arising from it. Ga. Power Co. v. Bishop, 162 Ga. App. 122, 126 (290 SE2d 328) (1982). Even though the USCR 31.1 notice was defective, Martin cannot show harm. However, we caution the State. Why risk reversal of a conviction for failure to follow the simple and straightforward rule requiring certain factual information? It is unprofessional, disobedient, and creates totally unnecessary legal issues.

(c) Martin claims the introduction of the four items belonging to Coleman and discovered in Martin’s possession, when considered cumulatively with her trial testimony, improperly placed his character in issue because the evidence made Martin appear to be a thief.

Martin consented to a search of his car and was present with his attorney when police conducted their search and found items belonging to the victim and to Coleman. Investigators discovered the latter’s date book, her driver’s license, a credit card, and a receipt. The trial court determined that these items were found after Martin asked that the State search his vehicle and that these items were part of the res gestae, OCGA § 24-3-3. These items were still in Martin’s car eight years after meeting Coleman. The fact that relevant evidence may indicate a crime or incidentally place a defendant’s character in issue does not render it inadmissible. O’Kelly v. State, 196 Ga. App. 860, 861 (397 SE2d 197) (1990).

3. Martin contends the court erred by granting the State’s motion in limine and precluding examination of an officer concerning photographs and intimate letters written by the victim to her husband while he was incarcerated at BCCI, as a way to attack the victim’s credibility. He wanted to attempt to illustrate purported similarities between the vivid sexual descriptions the victim had depicted in her letters and the victim’s details of the lewd words (“talking dirty”) and sexual activities of Martin. He claims the court deprived him of his right to show the jury that the victim was not a “sweet, innocent thing.”

OCGA § 24-2-3, the Rape Shield Statute, excludes the very testimony Martin sought to introduce, unless the evidence “supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution.” OCGA § 24-2-3 (b). Because Martin failed to show a valid purpose for such evidence, it was properly excluded.

Martin’s reliance on Benton v. State, 265 Ga. 648 (461 SE2d 202) (1995) is misplaced because Benton is factually distinguishable. Benton’s conviction was reversed because the evidence showed that his accuser had alleged sexual misconduct against her former boyfriend, then later recanted. The Supreme Court determined it was error to withhold such evidence. Martin does not claim that the victim ever falsely accused anyone else or recanted.

4. Martin contends the court erred by not allowing him to question the victim concerning any pending criminal charges against her and by allowing non-pending criminal charges to be introduced against him. The State filed a motion in limine to exclude reference to any criminal activity of any witness, including the victim, unless the rules regarding impeachment were followed. The trial court sustained the State’s objection to Martin’s question to the victim concerning whether she had any pending criminal charges. Although a witness may be discredited by a conviction of a crime of moral turpitude, it is improper to discredit a witness by showing he has been arrested or indicted. Syfrett v. State, 210 Ga. App. 185, 187 (4) (435 SE2d 470) (1993).

Division 2 (c) addresses the evidence of four items belonging to Coleman and found in Martin’s possession. Coleman’s testimony clearly indicates she had no knowledge as to how these items came to be in Martin’s possession, and she testified that she was not suggesting or stating that Martin ever did anything criminally wrong.

5. Martin claims he did not waive his right under OCGA § 17-10-2 to a presentence evaluation prior to sentencing. However, Martin’s counsel stated, “Your Honor, I don’t think there would be any purpose in requesting further delay for a presentence investigation . . . although I’d like to ask whether Mr. Martin has any reservations he would wish to ask the Court to delay in order that a presentence investigation report be made.” None was expressed. The State made its argument and recommendation, followed by Martin’s counsel who emphasized Martin’s family and community ties. Martin then addressed the court on his own behalf. Accordingly, because of Martin’s waiver, the court did not contravene OCGA § 17-10-2.

6. Martin claims that based on English common law, a jury has an absolute right to issue a “jury pardon” and that the jury should have been accordingly instructed even though there was evidence to support guilt. He cites no authority for the claim. We find no error.

7. Martin contends the court erred in its response to the jury’s question in a note as to whether the jury could recommend mercy on a guilty verdict. The court informed the jury that it could recommend mercy but that the court was not bound by the request because the jury was not responsible for the sentence. The defense made no objection to the court’s reply, and we find no error in it. Martin offers no support for his contention that the verdict was a compromise verdict or that the court’s response lessened the jury’s responsibility to find him guilty beyond a reasonable doubt.

8. Martin claims the court erred in denying his motion for a new trial based on newly discovered evidence, i.e., the testimony of Mr. Agnew, purporting to show that the victim and her husband attempted a similar scheme prior to this one and supporting Martin’s claim he was framed.

During the motion for a new trial hearing, Agnew, a former fellow prison guard, testified that the victim’s husband once offered to give him the telephone number of a woman about his age and suggested that Agnew might be able to arrange for the victim, her husband, the guard, and this woman to go off together on a weekend some time. Agnew claimed he had often wondered if the victim’s husband had been attempting to set him up with his wife. Agnew also testified he thought Martin exhibited favoritism toward the victim’s husband while Martin was supervising the work detail and that they appeared to be “real good friends.” On cross-examination Agnew admitted he had worked with the victim’s husband for only one day and conceded that the victim’s husband never expressly offered him his wife. He also admitted the victim’s husband had not done anything wrong and that he had not reported the proposal to authorities. He conceded that he knew that the sheriff’s department conducted an investigation of the charges against Martin and that he did not contact anyone with his information.

For a new trial based on newly discovered evidence, the movant must satisfy the court: “ ‘(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.’ [Cits.]” Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) (1980). The absence of any one of these factors is sufficient to deny a new trial. Bell v. State, 227 Ga. 800, 805 (183 SE2d 357) (1971). Agnew’s testimony would do nothing more than seek to impeach the credibility of witnesses, and it is not so material it would produce a different verdict at trial. It was not error to deny a new trial.

9. Martin contends he was entitled to a jury instruction that where there are two theories, one consistent with guilt and one consistent with innocence, the jury must acquit. The “two theories” charge has been expressly disapproved by this Court. Shutt v. State, 215 Ga. App. 617 (451 SE2d 530) (1994). “It is a statement of law that “ ‘does not accurately state the principle addressed and should never be given.’ Cantrell v. State, 212 Ga. App. 288, 290 (441 SE2d 879) (1994); Johnson v. State, 210 Ga. App. 99, 102 (435 SE2d 458) (1993).” Williams v. State, 217 Ga. App. 636, 637 (2) (458 SE2d 671) (1995).

10. Martin argues that the court erred in its charge concerning “terroristic threats and acts” because only “terroristic threats” were charged in the indictment, and by referring to both terroristic threats and acts, the court could have misled the jury.

Martin was indicted under OCGA § 16-11-37, “Terroristic Threats and Acts.” The indictment alleged that Martin “did threaten to commit a crime of violence with the purpose of terrorizing another to-wit: did threaten to kill [the named victim].” The court’s charge quoted verbatim the statutory language and also charged on the need for corroborative evidence.

The essential elements of terroristic threats and acts are: (1) a threat to commit any crime of violence . . . (2) . . . with the purpose of terrorizing another. . . . OCGA § 16-11-37. A conviction requires more than the uncorroborated testimony of the person to whom the threat is communicated. Id. An officer testified the victim appeared “nervous and scared.” A doctor testified the victim was “frightened” and “disturbed.” A nurse testified the victim was scared and “literally terrified.” Another police officer testified that the victim was very afraid. The jury also heard the testimony of the sheriff, who testified that the victim was “scared to death” and that she had telephoned him on at least two occasions after she was attacked because “she feared for her life.” “ ‘Slight circumstances may be sufficient for corroboration and the question of corroboration is one solely for the jury. If there is any evidence of corroboration, this court will not go behind the jury verdict and pass on its probative value. [Cit.]’ ” Boone v. State, 155 Ga. App. 937, 939 (274 SE2d 49) (1980).

Martin failed to show any confusion existed among the jurors, and there is evidence corroborating a threat against the victim. This enumeration is without merit.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

Decided December 1, 1995

D. Dustin Tapley, Jr., for appellant.

R. Joseph Martin III, District Attorney, Richard A. Mallard, Assistant District Attorney, for appellee.

       The notice stated, “Evidence of [sic] the defendant approached a female family member of an inmate incarcerated at Bulloch County Correctional Institute and offered drugs for sex and offered to look after the incarcerated family member in return for a relationship with the female relative.”


author: Ruffin, Judge. Beasley, Chief Judge,

text:
    A95A1823.
    MILLER v. THE STATE.
    (464 SE2d 860)
   Ruffin, Judge.

A jury convicted Ernest C. Miller of one count of selling a controlled substance in violation of OCGA § 16-13-30 (b), and the court imposed a life sentence. On appeal, Miller enumerates six errors, challenging primarily the admissibility of certain similar transaction evidence, the admission of certain post-arrest statements, and the imposition of the life sentence. For reasons which follow, we affirm in all respects with the sole exception of the sentence imposed.

Prior to trial, the court conducted a hearing to determine the admissibility of Miller’s prior drug convictions as similar transaction evidence. Miller had three prior convictions for possession of cocaine with intent to distribute. Miller also pled nolo contendere to a possession of cocaine charge.

As evidence of the instant offense, the State presented testimony that Miller sold two small baggies of powdered cocaine to a female undercover police officer for $50. Only one baggie was analyzed, and it was determined to contain less than one gram of cocaine.

1. Miller asserts the trial court erred by failing to adhere to proper procedures in determining that the similar transaction evidence could be admitted at trial. Without elaborating, Miller contends the court failed to comply with the requirements of Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). However, Miller failed to provide a copy of the similar transaction hearing transcript for our review, even though his attorney admitted having a copy of it, made several references to it in his brief, and referred to it in his motion for a new trial. Miller also contends that because the March 30, 1992, hearing transcript was not made a part of the record, his case should be treated as though the hearing never took place. We reject this argument. It is well settled that “ ‘[w]here the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court. . . . When this is not done, there is nothing for the appellate court to review.’ (Citations and punctuation omitted.) [Cit.]” Huff v. State, 207 Ga. App. 686, 687 (1) (428 SE2d 818) (1993).

2. Miller also contends the court committed reversible error by admitting his prior drug offenses as similar transaction evidence because they were not sufficiently similar to the charged offense. He further argues the introduction of the similar transaction evidence impermissibly placed his character in issue.

Because Miller failed to provide the transcript of the similar transaction hearing, our review is limited to the trial record. Miller contends there was no factual similarity between the prior acts and the indicted charge; thus, under Faison v. State, 199 Ga. App. 447 (1) (405 SE2d 277) (1991), the similar transaction evidence was improperly allowed. In Faison, however, this court held that the number of factual similarities is not determinative of admissibility. Id. “Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that (the defendant) committed the crime on trial because he is a man of criminal character. . . .” (Citation and punctuation omitted.) Id. at 449. “Drug cases are no different from any other cases. If the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.” State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980). See also Collins v. State, 205 Ga. App. 341 (2) (422 SE2d 56) (1992).

The State claims it offered the similar transaction evidence to prove Miller’s identity, purpose, and way of operating. Miller’s defenses included both mistaken identity and lack of motive. During the trial, Miller challenged the police officer’s identification of him and attempted to imply the officer was either mistaken or lying about the cocaine sale. Because Miller raised mistaken identity at trial, proof of his identity and way of operating was clearly relevant to the State’s case.

The record shows that all four similar transaction crimes offered by the State were closely related in time, occurred in the same area of town, and three involved powdered cocaine. The undercover officer testified that in her experience, powdered cocaine was rare in the area of town in which the indicted drug offense took place. Because the similar transaction crimes are sufficiently similar to the crime charged and were offered for proper purposes, we find this enumeration without merit.

3. Miller claims the court failed to properly instruct the jury as to the limited purpose for which the similar transaction evidence was admitted. He argues that the jury was confused regarding how to consider the similar transaction evidence and that the court’s limiting instruction did not sufficiently restrict the purposes for which the evidence was to be considered by the jury.

(a) Miller contends that a juror’s note to the judge indicated confusion among the jurors concerning their proper consideration of the similar transaction evidence. Before the close of evidence, a juror asked by note: “Is the defendant on trial for what happened on September 17, 1992 or what happened August and October of 1988? . . . It’s beginning to get confusing as to what’s on trial.” In response, the judge told the jury that Miller was on trial only for the September 17, 1992 incident, read the indictment to the jury, and reiterated that this was the only offense for which Miller was on trial. The judge next issued preliminary instructions explaining what Miller was being tried for and how similar transaction evidence fit into the trial. The record and transcript contain no evidence that the jury was confused after the court provided preliminary instructions, final instructions, and charges. Accordingly, this argument is without merit.

(b) The record also shows that the trial court provided the jury with instructions regarding the jury’s consideration of similar transaction evidence at two separate points. The transcript shows that the court paraphrased the charge on similar transactions from the Suggested Pattern Jury Instructions and that the court did not specifically limit the use of the evidence to one or two specific purposes but instead articulated the various possible uses listed in the pattern charge. However, because Miller failed to provide the transcript of the pretrial hearing, we are unable to ascertain the purpose (s) for which the court permitted the State’s presentation of similar transaction evidence. Additionally, although Miller excepted to the similar transaction charge, the record and transcript do not show he made a proper written request to charge. We have previously held that “when evidence is admitted for one purpose, ... it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury. It must be a ‘proper written’ request.” (Citations and punctuation omitted; emphasis in original.) Moore v. State, 202 Ga. App. 476, 480 (3) (414 SE2d 705) (1992). While the court’s instructions could have been clearer, because we are unable to determine the exact purpose(s) for which the State was permitted to use similar transaction evidence, and because the record does not show Miller made a proper written request to charge on similar transactions, we find no merit to this argument.

4. Miller contends the court erred in denying his motion in limine to suppress certain post-arrest statements made by him.

The State argued the remarks Miller sought to suppress were relevant to its case to show Miller’s motive for selling drugs. The State sought to prove Miller likely made the drug sale to the female undercover officer because he wanted to recruit her into his business. In support of this theory, the State offered disputed post-arrest statements Miller made after having been read his Miranda rights during his arrest for the most recent similar transaction. Miller remarked to the officers that he kept cocaine around “for his girls” whom the State claimed he employed as prostitutes. The written police report quoted Miller as saying: “Someone needs to take care of the ladies working the streets.” The State argued Miller was actively employed as a “pimp” and used cocaine to recruit and reward the young women he employed as prostitutes.

Miller contends the admission of this evidence was not needed to establish he committed the indicted offense and that it was introduced to impugn his character by creating an image that he was a pimp who kept his prostitutes high on cocaine. The undercover officer testified that Miller questioned her about where she was staying, invited her to his home, offered her a place to stay, and told her he could provide her with additional cocaine. The State argued the undercover officer fit the pattern of young, white women Miller used as prostitutes because she resembled the women depicted in seven or eight driver’s license photos found in his possession. Because Miller’s motive for selling powdered cocaine was an issue, the court properly admitted the evidence to explain Miller’s willingness to sell the cocaine directly to the undercover agent. The court properly determined the State’s need for this evidence outweighed the prejudice to Miller. See Williams v. State, supra.

5. Miller claims the court improperly sentenced him to life in prison. During sentencing, Miller objected to the imposition of a mandatory life sentence under OCGA § 16-13-30 (d) on the ground that the State had not informed him of its intent to use the prior convictions for recidivist sentencing. The State countered that it notified Miller of its intent to use the previous drug convictions as similar transaction evidence. The judge stated he was not sentencing Miller pursuant to the mandatory life sentence provision of the statute but was giving the maximum sentence allowed by law. During the motion for new trial hearing, the judge reiterated his position that the sentence he imposed had “nothing to do with the statute requiring mandatory life sentence . . . [and that it was] separate and apart from that statute.”

The State must provide notice of its intent to seek the mandatory life sentence under OCGA § 16-13-30 (d) because the notice requirement of OCGA § 17-10-2 (a) applies to mandatory life sentences imposed under OCGA § 16-13-30 (d). Moss v. State, 206 Ga. App. 310 (5) (425 SE2d 386) (1992); State v. Hendrixson, 251 Ga. 853 (310 SE2d 526) (1984). OCGA § 17-10-2 (a) provides that before sentencing, “the judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions . . . , provided that only such evidence in aggravation as the state has made known to the defendant prior to the defendant’s trial shall be admissible.” Id.

The written notice requirement can be satisfied where the State provides written notice of its intention to present evidence of prior convictions as similar transactions and the State orally notifies the defendant of its intent to seek a life sentence under the recidivist statute. Moss, supra. Such subsequent oral notification must be clear, however, and in all cases, written notification is preferable in order to avoid misunderstandings concerning the notice. See id. In Armstrong v. State, 264 Ga. 237 (2) (442 SE2d 759) (1994), the Supreme Court held that notice of the intent to use similar transaction evidence is insufficient to provide notice of the State’s intent to prove aggravation of punishment. Such notice is required to give the defendant an opportunity to not only challenge the similarity of the prior offense and the validity of the prior conviction, but also in some cases to plead to a lesser offense to avoid a sentence of life imprisonment. See id.

In this case, the State satisfied the first requirement of Moss by providing notice of its intention to use the prior convictions as similar transaction evidence. As to the second requirement, the State has not presented any evidence it informed Miller of its intent to use the prior convictions in seeking the mandatory life sentence. Because the State failed to show it met both requirements of Moss, we reverse and remand solely for resentencing.

Judgment affirmed in part and reversed in part.

Pope, P. J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

1. With respect to Division 3, the jury charges on the similar transaction evidence are marginally sufficient. In response to the question from the juror, the court first gave a whole list of purposes for which such evidence is admissible on contested issues. Then the court said it was solely for the purpose of tending to show, if it did, defendant’s “state of mind” on the indicted occasion of September 17, 1992. Then the court stated it was solely to prove “identity,” that this defendant is the person who sold the cocaine to the officer on that date. Although both of these matters were in issue, that sort of charging can be confusing and can result in the jury using the evidence for any purpose without limitation.

In the final charge, the court repeated the comprehensive list as purposes for which the jury could consider the similar transaction evidence and then instructed it was to be considered “solely with reference to the mental state, identity, or intent of the defendant” as applicable to the offense for which he was on trial “and for no other purpose.” The court’s ruling, at the pretrial hearing, on the limited purpose or purposes for which it would be admissible is not of much consequence in terms of what he told the factfinder and how the factfinder used it. The jury should be more clearly instructed so there is no doubt of the strict limitations on the use of this powerful evidence, and the use should be confined to purposes articulated by the State, which must show that the purpose relates to a real issue in the particular case and that this evidence tends to support the State’s theory on that issue. See Morris v. State, 212 Ga. App. 779 (442 SE2d 792) (1994) (Beasley, P. J., concurring specially); Harris v. State, 216 Ga. App. 672 (455 SE2d 387) (1995) (Beasley, C. J., concurring specially). In this instance, I do not conclude that the court’s charge was reversible error.

As to defendant’s submitting instructions on the subject, he has no burden to do so and should not be required to ask for limitations when he believes the evidence is totally inadmissible for any reason. The State has the burden to show, affirmatively, that it is admissible and fits an exception to the rule of inadmissibility for this type of character evidence. Defendant did not agree to any limited purpose, so he could not very well submit a limiting charge. That would concede that it is admissible for that purpose.

2. As to Division 5, the State should be required to provide written notice that it intends to use the earlier conviction for sentencing purposes. We said it is “preferred” in Moss v. State, 206 Ga. App. 310 (5) (425 SE2d 386) (1992), but that urging need not be heeded and was not, in this case. Oral notices can open into a debate and depend on busy lawyers’ recollections; such notices can at least risk misunderstanding. In Moss, appellant’s counsel admitted that he knew it. That is not always going to be the case, and it should not be asking too much of the State to put the notice in writing and file it. After all, what is at stake is life imprisonment for defendant versus a maximum of 30 years. That would mean a lot to drug defendants, most of whom are probably relatively young.

It is notable that, despite the defendant’s pattern of ongoing criminal activities and lack of remorse which prompted the court’s effort to avoid the consequences of the lack of notice, the court could not consider subsection (c) of OCGA § 16-13-30 at all. It does not provide for life imprisonment, and it provides punishment for violation of subsection (a), not (b). Defendant was convicted only of violation of subsection (b). The punishment for a subsection (b) Schedule I or Schedule II narcotic offense is solely in subsection (d). The only way to sentence to life imprisonment for violation of subsection (b) is to consider the prior conviction. Without it, the maximum is 30 years imprisonment.

Decided December 1, 1995.

Cloud H. Miller III, for appellant.

Lewis R. Slaton, District Attorney, J. Clayton Culp, Assistant District Attorney, for appellee.


author: Smith, Judge.

text:
    A94A1426.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. ROLAND et al.
    (465 SE2d 1)
    Decided December 4, 1995.

      Watson & Dana, Dennis D. Watson, for appellant.

      Sabiston & Smith, E. Paul Sabiston, Weaver & Weaver, George W. Weaver, Duard R. McDonald, for appellees.
   Smith, Judge.

This Court entered a judgment in this case reversing the trial court’s judgment. Ga. Farm &c. Ins. Co. v. Roland, 215 Ga. App. 834 (452 SE2d 548) (1994). In Roland v. Ga. Farm &c. Ins. Co., 265 Ga. 776 (462 SE2d 623) (1995), the Supreme Court affirmed in part and reversed in part this Court’s decision. Accordingly, the prior judgment of this Court is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the judgment of the trial court is affirmed in part and reversed in part.

Judgment affirmed in part and reversed in part.

Beasley, C. J., McMurray, P. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Blackburn and Ruffin, JJ., concur.