author: Ellington, Judge.

text:
    A99A1597.
    McQUEEN v. THE STATE.
    (522 SE2d 512)
   Ellington, Judge.

This is the second appearance of this case before us. McQueen v. State, 228 Ga. App. 732 (492 SE2d 720) (1997). Richard McQueen, after a jury trial at which he represented himself, was convicted of sale of cocaine, OCGA § 16-13-30 (b), and possession of cocaine, OCGA § 16-13-30 (a). We affirmed the convictions, but remanded “for a determination on the record as to whether the circumstances warranted appointment of trial counsel.” Id. at 734. After a hearing, the trial court issued an order addressing this Court’s concerns and concluding that McQueen was not indigent, that he did not qualify for court-appointed counsel, and that he failed to use diligence in retaining counsel. McQueen appeals from this decision, challenging the trial court’s finding that he was not indigent. Moreover, he argues the trial court abused its discretion in failing to appoint counsel under these circumstances even if he was not indigent. For the following reasons, we affirm.

The state is required to provide counsel to indigent defendants for their trial. Gideon v. Wainwright, 372 U. S. 335 (83 SC 792, 9 LE2d 799) (1963); Gibson v. Turpin, 270 Ga. 855 (513 SE2d 186) (1999). Defendants “unable, without undue hardship, to employ the legal services of an attorney or to defray the necessary expenses of legal representation” are indigent and therefore entitled to appointed counsel. OCGA § 17-12-2 (5); Seay v. State, 220 Ga. App. 418, 419 (469 SE2d 496) (1996). “The determination of indigency calls for the exercise of discretion based upon consideration of relevant criteria of indigency.” Mapp v. State, 199 Ga. App. 47, 48 (403 SE2d 833) (1991). Uniform Superior Court Rule 29.2 provides that a judge of the superior court or the court’s designee shall determine indigence based upon the defendant’s certificate of financial resources, which may include the accused’s “assets, liabilities, employment, earnings, other income, number and ages of dependents,” the charges pending and other information the court may require. The purpose of the application is to enable the court to determine the accused’s financial ability to employ counsel. Id.; see State v. Hatcher, 264 Ga. 556, 557 (448 SE2d 698) (1994).

The record shows that McQueen completed a form application for appointed counsel used by the Southern Judicial Circuit’s Indigent Defense Administrator’s Office. That form requested substantially the same financial information as the standardized form suggested in USCR 29.3 (D), including information about employment, assets, and other sources of income, including a spouse’s income. There is nothing in the record suggesting that the determination of indigence was based upon criteria that were not relevant to whether McQueen was financially able to employ counsel. Whether McQueen was in fact married and whether he had access to his wife’s income or other assets were questions of fact to be resolved by the trial court. We will not look behind the court’s determination of indigence. See Hawkins v. State, 222 Ga. App. 461, 462 (1) (474 SE2d 666) (1996) (“ ‘[W]hether a defendant is indigent, and entitled to have counsel appointed to pursue an appeal, lies within the discretion of the trial court, and this determination is not subject to review.’ ”).

McQueen also argues that even if he was not indigent, the trial court should have exercised its discretion to appoint him counsel under the unique circumstances of this case. As we have explained:

Article I, Section I, Paragraph XIV of the 1983 Georgia Constitution provides that “(e)very person charged with an offense against the laws of this state shall have the privilege and benefit of counsel. . . .” And while a non-indigent defendant may forfeit this right by failing to act with reasonable diligence in obtaining an attorney’s services, Hasty v. State, 215 Ga. App. 155, 156 (1), 157 (450 SE2d 278), the trial court must exercise discretion in resolving the “reasonable diligence” issue by considering all factors which militate for or against the appointment of counsel — including the fairness of forcing a low income illiterate to trial without an attorney in light of the trial court’s power to appoint counsel and require the non-indigent to reimburse the county for any such representation. Flanagan v. State, 218 Ga. App. 598, 600-601 [(462 SE2d 469)]. Of course, the trial court’s judgment in such matters is reversible only upon a manifest abuse of discretion. See Shaw v. State, 251 Ga. 109, 111 (303 SE2d 448), and Hasty v. State, 215 Ga. App. 155, 156 (1), supra.

Decided September 13, 1999.

William D. Edwards, for appellant.

J. David Miller, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

Flanagan v. State, 224 Ga. App. 272, 274 (480 SE2d 299) (1997); McCall v. State, 232 Ga. App. 684, 686 (1) (503 SE2d 578) (1998).

After the hearing upon remand of this case, the trial court determined that McQueen failed to use reasonable diligence in attempting to retain trial counsel. During the four months between the time he was denied appointed counsel and the trial of his case, McQueen, through his wife, contacted one attorney who quoted a fee of $3,000. There is no evidence that McQueen attempted to make financial arrangements with this attorney or that he actually contacted any of the other six attorneys whose names he had been given. When McQueen’s case was called to trial, he did not ask for an appointed attorney or for more time to retain an attorney. In fact, he announced ready. Also, McQueen did not present any evidence of special circumstances militating in favor of the trial court exercising its discretion to appoint counsel. For example, McQueen can read, he filed pre-trial motions on his own behalf, he had a familiarity with the criminal justice system, he even met with and had pre-trial plea negotiations with an assistant district attorney. Given this evidence, we cannot say the trial court manifestly abused its discretion in failing to appoint McQueen trial counsel. See Flanagan v. State, supra; Wood v. State, 199 Ga. App. 252, 253-254 (1) (404 SE2d 589) (1991).

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A99A1684.
    MILLER v. THE STATE.
    (522 SE2d 519)
   McMurray, Presiding Judge.

Defendant was found guilty by a jury of aggravated assault (Count 1) and battery (Count 2). He appeals from the judgment of conviction and enumerates as error the trial court’s: (1) failure to declare a mistrial after the State injected extrinsic evidence of bad character; (2) failure to declare a mistrial after an allegedly burden-shifting closing argument by the State’s attorney; and (3) failure to charge the jury on battery under OCGA § 16-5-23.1, as alleged in the indictment. Held:

1. Defendant contends that the trial court should have declared a mistrial arguing that evidence of his bad character was introduced through two of the State’s witnesses.

On cross-examination, the battery victim, Louise Jones, was asked, “[Do] you consider yourself to be [defendant’s] common law wife?” Jones replied, ‘Yes, Sir, I was till he started beating on me. When he started beating on me —.” On direct examination later in the trial, Lucinda Barnes recalled the verbal exchange between the battery victim (her daughter) and defendant in Barnes’ backyard as follows, “I was raking the leaves. I was just raking. [Defendant] jumped over the fence and he grabbed Louise; [and said], ‘Come on, you’re going home with me.’ She said, ‘No, I’m not.’ She said, ‘I’m tired of you beating me all the time.’ ”

The trial court denied trial defense counsel’s motions for mistrial but immediately ordered Jones’ testimony accusing defendant of beating her and Barnes’ hearsay testimony to such effect stricken from the record and instructed the jury at length to disregard the testimony.

On appeal, defendant argues that: (1) the curative instructions given by the trial court were inadequate to cure complained-of testimony of defendant’s bad character because each emphasized the prejudicial nature of the testimony; and (2) the objectionable testimony was intentionally given in that it was unresponsive to any question propounded. The trial court’s curative instructions described the offending testimony as “highly prejudicial” and “obviously prejudicial,” in directing the jury to give such testimony no consideration. In our view, this was proper as an appropriate explanation of the law prompting the charge. See Emory Univ. v. Lee, 97 Ga. App. 680, 697 (4) (104 SE2d 234) (the purpose of the charge is to state and explain the law, not to carry on a process of general reasoning). We need not determine whether witnesses Jones and Barnes intentionally gave prejudicial testimony going to matters beyond the questions put to them. It is enough that the trial court excluded their extraneous remarks and gave immediate and appropriate curative instructions in each situation. This was sufficient to remove any prejudicial impression arising from the unsolicited testimony of witnesses Jones and Barnes concerning Jones’ prior difficulties with defendant. McKibbons v. State, 226 Ga. App. 452, 453-454 (2) (486 SE2d 679); Marlowe v. State, 162 Ga. App. 37-38 (1) (290 SE2d 136).

2. Defendant claims that the trial court erred in denying his motion for mistrial upon the ground that the State’s attorney made a “burden shifting” statement in his closing argument, impermissibly commenting upon the defendant’s failure to testify.

During closing argument the prosecutor stated: “[T]he only evidence in this case is the State’s evidence. The defense has the subpoena powers. They’re able to bring witnesses, but they have not.” Thereafter, defendant moved for a mistrial on the ground that the statement was an improper comment on defendant’s failure to testify at trial. The trial court denied the motion and immediately issued a curative instruction to the jury wherein the court admonished the State’s attorney for making the statement in that “we have established that the State has brought to this courtroom every known witness to this incident [,]” and instructed the jury to disregard the statement and give it no part in their deliberations. Defendant did not object or renew his motion for a mistrial after such instruction was given, and so failed to preserve the issue for appeal. Jones v. State, 221 Ga. App. 374, 375 (2) (471 SE2d 318). Consequently, this enumeration of error presents nothing for review. Even were there no waiver, “‘[w]e view the remarks to be a permissible comment on defendant’s failure to adduce evidence rebutting the State’s evidence. [Cits.]’ ” Williams v. State, 200 Ga. App. 84, 86 (3) (406 SE2d 498). This is neither burden shifting nor an impermissible comment on defendant’s failure to testify. See McGee v. State, 260 Ga. 178, 179 (4) (391 SE2d 400).

3. In his last enumeration of error, defendant correctly contends the trial court erred in charging the jury on “battery” (Count 2) by using the OCGA § 16-5-23 definition of simple battery, rather than charging battery as defined at OCGA § 16-5-23.1 (a), as alleged in the indictment. When the trial court asked if there were any “objections, exceptions, or suggestions ... to the charge!, there were] [n]one from the defense.”

In the face of direct inquiry by the trial court,

[flailure to object to a jury charge in a criminal case constitutes a waiver except where, under OCGA § 5-5-24 (c), there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made or not. Maynard v. State, 171 Ga. App. 605 (320 SE2d 806) (1984); Barnett v. State, 178 Ga. App. 685, 686 (1) (344 SE2d 665) (1986); see Crawford v. State, 254 Ga. 435, 438-439, n. 4 (330 SE2d 567) (1985). In order to satisfy this standard, appellant must show that “the allegedly erroneous charge was blatantly apparent and prejudicial to the extent that it raises a question whether he has been deprived, to some extent, of a fair trial. (Cits.)” Maynard v. State, supra at 606 (2). “(N)othing is presented for consideration on appeal unless ... a gross miscarriage of justice attributable to (the jury charge) is about to result.” (Citations and punctuation omitted.) Foskey v. State, 116 Ga. App. 334, 336 (157 SE2d 314) (1967).

Medina v. State, 234 Ga. App. 13, 15 (2) (505 SE2d 558).

While the trial court erred in charging the wrong Code section, we conclude that no substantial harm resulted. The State’s evidence showed that defendant knocked Jones down and dragged her across the yard, doing injury to her knees. This is sufficient circumstantial evidence that visible bodily injury resulted. See Spear v. State, 270 Ga. 628, 629 (1) (513 SE2d 489) (conviction based on circumstantial evidence authorized when every reasonable inference and hypothesis except of guilt excluded by the evidence). Since this evidence meets the allegations in Count 2 of the indictment, there is no fatal variance. See Mathis v. State, 238 Ga. App. 218, 219-220 (2) (517 SE2d 578).

In our view, there is no reasonable probability that defendant was convicted of committing battery in a manner not charged in Count 2 of the indictment. Compare Howard v. State, 230 Ga. App. 437, 438 (2) (496 SE2d 532); Levin v. State, 222 Ga. App. 123, 126 (6) (473 SE2d 582). Consequently, we hold the error alleged in this enumeration presents nothing to review under OCGA § 5-5-24 (c). Hawkins v. State, 116 Ga. App. 448 (157 SE2d 800).

Decided September 13, 1999.

Peter D. Johnson, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       Inasmuch as the State did not seek to introduce this evidence and the trial court excluded the same, its admissibility is not in issue. See Wall v. State, 269 Ga. 506, 508-510 (2) (500 SE2d 904), wherein the Supreme Court of Georgia,
      noted the sufficient probative connection between evidence of the victim [] and the defendant’s prior difficulties and the crime with which the defendant is charged. [Cits.] .. . [Although the] trial court [need not] conduct a pre-trial hearing... before evidence of prior difficulties between the defendant and the victim can be admitted at trial.. ., the admission of such evidence should be accompanied by an instruction from the trial judge explaining the limited use to which the jury may put such evidence. O’Toole v. State, 258 Ga. 614 (6) (373 SE2d 12) (1988); Kettman v. State, 257 Ga. 603 (7) (362 SE2d 342) (1987).

       The record reflects that the trial court gave this charge at the request of the State.

       The battery victim testified defendant dragged her “from the back to almost the front yard.”


author: Eldridge, Judge.

text:
    A99A1730.
    ESENER v. KINSEY et al.
    (522 SE2d 522)
   Eldridge, Judge.

On June 12, 1998, Nancy D. Kinsey, individually and as next friend of her minor daughter, Samantha Kinsey, sued Dr. Ismail Esener, the obstetrician-gynecologist who delivered Samantha, for birth injuries. This was more than ten years after the alleged injury to the minor child.

At birth, on December 16, 1987, Samantha suffered anoxic brain damage through the alleged negligent acts and omissions of Dr. Esener. It was alleged that Dr. Esener was aware of the cause of such brain damage but concealed such negligence from Kinsey and caused her to believe that there was another cause for the brain damage.

In plaintiff’s complaint, she alleged that she discovered Dr. Esener’s fraud on approximately September 29, 1997, which was 78 days before the statute of repose abrogated the action.

On September 12, 1998, Dr. Esener answered the complaint and raised the defense of the statute of limitation and statute of repose. On December 7, 1998, Dr. Esener moved for judgment on the pleadings based upon the statute of repose. OCGA § 9-3-73. In response, Kinsey filed her affidavit, an additional affidavit of her medical expert, and progress notes from the delivery. On February 24, 1999, the trial court denied Dr. Esener’s motion for judgment on the pleadings and stated that the ruling was made without a consideration of the affidavits.

Dr. Esener contends that the trial court erred in denying his motion for judgment on the pleadings based upon the statute of repose, notwithstanding allegations of fraud, because the fraud, in this medical malpractice action, was discovered prior to the expiration of the statute of repose. We do not agree.

Since this was a motion for judgment on the pleadings, then we must treat all well-pled facts as true. OCGA § 9-11-12 (c); Pressley v. Maxwell, 242 Ga. 360 (249 SE2d 49) (1978); Seaboard Coast Line R. Co. v. Dockery, 135 Ga. App. 540, 543-544 (218 SE2d 263) (1975); Hancock v. Nashville Investment Co., 128 Ga. App. 58, 60 (3) (195 SE2d 674) (1973). Therefore, we must assume that the defendant’s statements to the plaintiff were made with the intent to conceal the cause of the brain damage to the minor child from the mother and that she was deterred from filing this action as a result. Considering the pleadings alone, they set forth the date of birth when the anoxia is alleged to have caused brain damage immediately prior to birth of the minor plaintiff; when the ten years of the statute of repose abrogated any cause of action; when the alleged fraud was discovered; when the action was filed; and allegations of intentional fraudulent concealment of the brain injury. OCGA §§ 9-3-71 (b), (c); 9-3-73 (b), (c) (2) (A), (d).

The General Assembly, as a matter of public policy, has provided that a defendant’s fraud which has debarred or deterred a plaintiff from bringing an action tolls the running of the statute of limitation until the fraud is discovered or reasonably should have been discovered. See OCGA § 9-3-96; Trust Co. Bank v. Union Circulation Co., 241 Ga. 343, 344-345 (245 SE2d 297) (1978). Where a relationship of trust and confidence such as a physician-patient relationship exists, there is a duty to disclose the cause of any injury and failure to do so acts as fraud, tolling the statute of limitation. See id. at 344; Quattlebaum v. Cowart, 182 Ga. App. 473, 474-476 (356 SE2d 91) (1987); Breedlove v. Aiken, 85 Ga. App. 719 (70 SE2d 85) (1952). Here, the motion dealt only with the statute of repose as a bar to suit, even if fraud existed.

Fraud by which the plaintiff is debarred or deterred from bringing an action tolls any applicable period of limitation. OCGA § 9-3-96. There is a distinction between a statute of limitation and a statute of ultimate repose. A statute of limitation is a procedural rule limiting the time in which a party may bring an action for a right which has already accrued. A statute of ultimate repose delineates a time period in which a right may accrue. If the injury occurs outside that period, it is not actionable. . . . Therefore, an injury or death is not actionable if it occurs more than [ten] years from the date of [delivery]. ... A statute of ultimate repose sets an ultimate limit on which injuries shall be actionable. Therefore, by definition, a statute of ultimate repose cannot be “tolled” to permit actions to be brought for injuries which did not occur until after the statutory period had expired. However, the statute of ultimate repose should not be applied to relieve a defendant of liability for injuries which occurred during the period of liability, but which were concealed from the patient by the defendant’s own fraud. The statute of ultimate repose should not provide an incentive for a doctor or other medical professional to conceal his or her negligence with the assurance that after [ten] years such fraudulent conduct will insulate him or her from liability. The sun never sets on fraud.

(Citations omitted.) Hill v. Fordham, 186 Ga. App. 354, 357-358 (367 SE2d 128) (1988). Thus, the statute of repose abrogates the action, and fraud under OCGA § 9-3-96 does not toll the statute of repose.

However, if the evidence of defendant’s fraud or other conduct on which the plaintiff reasonably relied in forbearing the bringing of a lawsuit is found by the jury to exist, then the defendant, under the doctrine of equitable estoppel, is estopped from raising the defense of the statute of ultimate repose. Hill v. Fordham, supra at 358; accord Beck v. Dennis, 215 Ga. App. 728, 729-730 (1) (452 SE2d 205) (1994); Bynum v. Gregory, 215 Ga. App. 431, 434 (2) (450 SE2d 840) (1994); Lasoya v. Sunay, 193 Ga. App. 814, 815-816 (1) (389 SE2d 339) (1989). The statute of repose is not tolled by fraud, but fraud, instead, gives rise to the doctrine of equitable estoppel, which prevents the defendant from asserting the defense of the statute of repose, because his or her own wrongful conduct gave rise to the defense and prevented the plaintiff from exercising reasonable diligence to learn the nature and cause of the injury attributable to the defendant and from bringing suit.

Since fraud does not toll the statute of repose but may give rise to equitable estoppel of the defendant to raise the defense of the statute of repose, the plaintiff must have acted diligently for equitable estoppel to be available, after the fraud was first discovered or should have been discovered. This is generally a jury issue. See Hill v. Fordham, supra at 357-358; Lasoya v. Sunay, supra at 816-817. In dicta in Zechmann v. Thigpen, 210 Ga. App. 726, 728-729 (3) (437 SE2d 475) (1993), where summary judgment was affirmed on other grounds in a misdiagnosis case thereby distinguishing it from this case, this Court stated that, when discovery of the alleged fraud occurs prior to the running of the statute of repose with time allowing the filing of suit within the period of repose, the statute of repose may be raised; but the opinion also stated that there was no evidence of fraud to support equitable estoppel on the motion for summary judgment. See id.; see also Lasoya v. Sunay, supra at 817.

Assuming that the allegations of fraud are true for purposes of this motion for judgment on the pleadings and that such fraud deterred the earlier filing of this suit as alleged in the complaint, the trial court properly denied the motion, because issues for jury determination exist as to plaintiff’s exercise of diligence in order for the doctrine of equitable estoppel to prevent the defendant from asserting the defense of the statute of repose. See Beck v. Dennis, supra; Hill v. Fordham, supra.

Decided September 13, 1999

Minor, Bell & Neal, William F. Jourdain, Hall, Booth, Smith & Slover, James E. Looper, Jr., for appellant.

Bird, Ballard & Still, William Q. Bird, John G. Mabrey, Coppedge, Leman & Ward, Warren N. Coppedge, Jr., David L. McGuffey, for appellees.

Whether by discovery, which delays the accrual of the action, or by infancy, incompetency, or fraud, which may toll the statute of limitation for up to five years, however, nothing stops the abrogation of the action by the statute of repose; five years after the negligent or wrongful act or omission occurred, despite any non-discovery or any tolling, the medical malpractice action or potential action ceases to exist by abrogation of law under the statute of repose. OCGA §§ 9-3-71 (b); 9-3-73 (c)[J [Cits.]

Charter Peachford Behavioral Health System v. Kohout, 233 Ga. App. 452, 456-457 (504 SE2d 514) (1998) (physical precedent only). In the foregoing quotation, relied upon by Dr. Esener, Charter Peachford referred only to the effect of OCGA § 9-3-96 tolling the statute of repose and did not involve the doctrine of equitable estoppel that prevents the defendant from relying upon the statute of repose, when his fraud concealed the cause of the injury. While statutes of repose cannot be tolled, actual fraud concealing the negligence can estop the defendant from asserting the defense of the statute of repose through the doctrine of equitable estoppel. Hill v. Fordham, supra at 357-358.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


text:
    A99A1747.
    PIRKLE v. THE STATE.
    (522 SE2d 526)
   Eldridge, Judge.

Appellant Hugh Carl Pirkle appeals from the Superior Court of Paulding County’s denial of a motion to withdraw his guilty plea. He entered such plea to charges of aggravated stalking, kidnapping, two counts of aggravated assault, armed robbery, and burglary, which charges arose from a series of acts he perpetrated primarily against his estranged wife, Jennifer Pirkle. Appellant was sentenced in a concurrent fashion to a total of twenty years, serve ten, balance probated.

On appeal, appellant does not challenge the knowing and voluntary nature of the plea proceeding, itself, but argues instead that the entry of his plea was based upon a Brady violation and an instance of prosecutorial misconduct, thus rendering the entry of the plea fundamentally unfair. We have reviewed the evidentiary basis for appellant’s motion to withdraw his guilty plea and affirm the ruling of the trial court.

1. Appellant contends that the entry of his plea was predicated upon a Brady violation in that the district attorney allegedly denied appellant exculpatory evidence which would have altered his decision to enter a guilty plea had he received such evidence. The exculpatory evidence appellant claims was denied to him is described in a sworn affidavit given by Jennifer Pirkle, the victim, several months after the entry of appellant’s guilty plea. In her affidavit, Jennifer Pirkle declared that she did not make the statements upon which appellant’s prosecution was based and which were credited to her by the police; that another eyewitness, her mother, was lying about acts appellant allegedly perpetrated against Ms. Pirkle; that the police threatened to put her in jail if she contacted appellant in order to tell him that his prosecution was based upon false statements; and that, prior to the entry of the plea, she told the district attorney that the charges against appellant were based upon false statements wrongly attributed to her. Appellant’s additional claims of prosecutorial misconduct are also described in Jennifer Pirkle’s affidavit, as Ms. Pirkle declared therein that the district attorney would not permit her to contact appellant’s defense attorney regarding the false statements, even though she asked to do so; and that the district attorney did not inform her of the date of appellant’s sentencing hearing, even though she asked to be present.

During the hearing on the motion to withdraw the guilty plea, appellant’s defense attorney called Jennifer Pirkle to the stand. At that time, however, Ms. Pirkle testified that her affidavit which provided the basis for appellant’s motion to withdraw was completely false; that her initial statements to the police regarding appellant’s criminal acts toward her were, in fact, true; that her mother was telling the truth about the criminal acts appellant perpetrated against Ms. Pirkle; that she never told the district attorney that the charges against appellant were based on false statements; and that she made the statements in the affidavit only because she “felt sorry” for appellant and was being pressured by his family. In addition, Jennifer Pirkle testified at the motion hearing that the district attorney had not refused to allow her to contact appellant’s defense attorney; that she made the decision, herself, not to talk to appellant’s defense attorney; and that she had not told the district attorney that she wished to be present at appellant’s sentencing hearing.

Decided September 13, 1999.

James M. Allison, Jr., for appellant.

James R. Osborne, District Attorney, Elizabeth L. Larson, Assistant District Attorney, for appellee.

Following the hearing on the motion, the trial court found that there was no credible evidence which demonstrated either a Brady violation or prosecutorial misconduct so as to warrant the withdrawal of appellant’s properly entered guilty plea.

Once sentence is pronounced, “a withdrawal of a plea is within the sound discretion of the court, and this discretion will not be disturbed unless there is a manifest abuse of discretion.” (Citation and punctuation omitted.) Wilcox v. State, 236 Ga. App. 235, 236 (511 SE2d 597) (1999). Based on the record before us, including Jennifer Pirkle’s retraction of her recantation, we find no abuse of discretion in the trial court’s determination that no credible evidence supported appellant’s motion to withdraw his guilty plea.

2. With a few limited exceptions not applicable here, a plea of guilty generally waives all defenses except those based upon the knowing and voluntary nature of the plea. Hooten v. State, 212 Ga. App. 770 (442 SE2d 836) (1994). Once a defendant solemnly admits in open court that he is, in fact, guilty of the offense charged, he generally may not thereafter raise independent claims that occurred prior to the entry of his guilty plea. Addison v. State, 239 Ga. 622, 624 (238 SE2d 411) (1977). Accordingly, appellant’s independent claims regarding the State’s alleged violations of statutory discovery procedures are waived by the entry of his guilty plea.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

        Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).


text:
    A99A1285.
    A99A1297.
    THOMPSON v. THE STATE. DRISCOLL v. THE STATE.
    (521 SE2d 876)
   McMurray, Presiding Judge.

Following their indictments for armed robbery (Count 1), kidnapping (Count 2), burglary (Count 3), false imprisonment (Counts 4-7), possession of a firearm during the commission of a felony (Count 8), and impersonating a public officer (Count 9), defendant Jerome Stanley Thompson and co-defendant John N. Driscoll (“defendant” and “Driscoll,” respectively; “defendants” collectively) were jointly tried by a jury and found not guilty of Counts 1 and 2, guilty of Counts 5, 6, and 7 (false imprisonment), and guilty of Count 9 (impersonating a public officer). The trial court denied defendants’ motions for new trial, and separate appeals followed. Because the instant appeals were filed separately, but involve similar issues of law arising out of the same operative facts, the two cases are hereby consolidated for disposition on appeal. Held:

Case Nos. A99A1285 and A99A1297

1. Defendants challenge the sufficiency of the evidence to support their convictions for false imprisonment, arguing there is no evidence that defendants held the victims against their will.

“On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant [s] (defendant [s] here) no longer enjoy[] a presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Conflicts in the testimony of witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citations and punctuation omitted.) Turner v. State, 223 Ga. App. 448, 449 (1) (a) (477 SE2d 847).

Howard v. State, 227 Ga. App. 56, 8 (6) (a) (488 SE2d 489).

Viewed in this light, the evidence at defendants’ trial pertinently revealed the following: Raul Briones lived with his brother, Celerino Briones, and three friends, Gerardo Mata, Ricardo Mata, and Gerardo Pardo (“the victims”), at 149 Harris Circle, Lawrenceville. At about 2:00 a.m., November 14, 1997, Raul Briones returned home from a bar, found his brother and three friends asleep, and went to bed. About one hour later, Amanda Stanton, a Harris Circle resident, noticed that a suspicious vehicle had twice driven down her street with its lights off and then parked. She saw three individuals get out, put on dark clothing and walk toward the house where the Hispanic males lived. Seeing this, Stanton called the police. At or about the time she did so, Raul Briones was awakened by knocking at the front door and the words “the police” being shouted.

While Raul Briones was still in bed, defendant Driscoll, a white man dressed in black and wearing a badge, entered Raul Briones’ room and, at gunpoint, ordered him “to go with the other one to the living room.” While leaving the bedroom, Raul Briones saw defendant Driscoll remove Raul Briones’ wallet from a pocket of the pants the victim was forced to leave behind. Driscoll took $600-$700, without Raul Briones’ consent.

Raul Briones went to the living room in fear. There, he found his brother and friends. Defendants and a third man, Spencer Wilkes, were armed, dressed in black, and wearing police badges. According to Raul Briones, his brother and friends appeared afraid.

On cross-examination, defendant Thompson testified that he, defendant Driscoll and Wilkes had all the residents in the living room for about five minutes before the police arrived. Defendant Thompson questioned them and made them produce identification. According to defendant Thompson, defendant Driscoll left his badge, gun, a black T-shirt and jacket in the kitchen before going outside to meet the police as they arrived. Defendant Thompson removed his own black outer clothing as Wilkes fled the house.

“The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. “A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” OCGA § ‘16-5-41 (a). In the cases sub judice, evidence that defendants detained the victims under arms and color of authority is sufficient under the standard of Jackson v. Virginia, supra, to authorize the jury verdicts that both defendants Thompson and Driscoll are guilty, beyond a reasonable doubt, of false imprisonment as alleged in Counts 5, 6, and 7 of the indictment. Mayorga v. State, 225 Ga. App. 496, 497 (484 SE2d 292).

2. Defendant Driscoll challenges the sufficiency of the evidence regarding his conviction for impersonating a public officer, arguing there is no evidence he entered the house shouting “police” or “policia,” or that he wore a police badge.

“A person who falsely holds himself out as a peace officer or other public officer . . . with intent to mislead another into believing that he is actually such officer commits the offense of impersonating an officer.” OCGA § 16-10-23. Raul Briones identified defendant Driscoll as the man who burst into his bedroom, who wore a police badge, and who ordered Raul Briones out of bed and into the living room. While there is no direct evidence that Driscoll identified himself verbally as a police officer, there is evidence that one or more of the perpetrators did so. Driscoll’s participation as a party to this raid was sufficient under the standard of Jackson v. Virginia, supra, to authorize the jury’s verdict that Driscoll is guilty, beyond a reasonable doubt, of impersonating a public officer as alleged in Count 9 of the indictment. Murray v. State, 269 Ga. 871, 874 (4) (505 SE2d 746); OCGA § 16-2-20 (3).

3. Driscoll next contends that the trial court erred in denying his motion to strike Amanda Stanton’s testimony that she observed Driscoll’s vehicle on Harris Circle. He urges Stanton’s eyewitness testimony was inadmissible because the State did not comply with OCGA § 17-16-7, which provides, in pertinent part: “the prosecution . . . shall produce for the opposing party any statement of any witness that is in the possession, custody, or control of the [S]tate or prosecution . . . that relates to the subject matter concerning the testimony of the witness.”

At trial, the State’s attorney represented he had no statement made by Stanton. Rather, Stanton’s oral statements to the police were “referenced” in the Lawrenceville Police Department Arrest Report Supplemental, a copy of which he served on trial counsel.

There can be no “possession, custody, or control” of a witness’ statement which has neither been recorded nor committed to writing. OCGA § 17-16-1 (1). Accordingly, if, but only if, the eyewitness’ statement had been recorded or committed to writing other than in “notes or summaries made by counsel,” it would be discoverable. OCGA § 17-16-1 (2) (C).

Forehand v. State, 267 Ga. 254, 255 (3) (477 SE2d 560). In the cases sub judice, the State had reference only to an oral statement from Stanton. Consequently, the trial court did not err in admitting Stanton’s eyewitness identification testimony over defendant Driscoll’s objection that OCGA § 17-16-7 had been violated.

4. Driscoll also contends the trial court erred in admitting into evidence certain “photographs” which were not served on him by the State at least ten days before trial under OCGA § 17-16-4. But he supports this enumeration with argument and citation of authority only as to a single photograph depicting Raul Briones’ brother and three friends in the living room of the Harris Circle residence. Accordingly, we address this enumeration only with respect to this photograph. Court of Appeals Rule 27 (c) (2) (“Unsupported claims of error treated as abandoned”).

Investigator Billy Sharpton testified the photograph complained of had not been developed before trial under department policy. The State’s attorney represented he did not possess the photograph until the pretrial motion hearing one day before trial. Driscoll declined the trial court’s offer of a continuance during trial to further examine the photograph.

If the State fails to comply with OCGA § 17-16-4 (a) (3), the trial court may prohibit the State from introducing the evidence it improperly withheld from the defense. This sanction, however, applies only where there has been a showing of prejudice to the defense and bad faith by the State. OCGA § 17-16-6.

Tucker v. State, 222 Ga. App. 517, 518 (3) (474 SE2d 696). The rights of the accused to reasonable pretrial access to evidence are not subject to the vagaries of a police department “policy” not to develop evidentiary photographs until the day before trial. See Carr v. State, 267 Ga. 701, 711 (10), n. 5 (482 SE2d 314), overruled in part on other grounds, Clark v. State, 271 Ga. 6, 9 (5) (515 SE2d 155); Bentley v. State, 210 Ga. App. 862, 863 (2) (a) (438 SE2d 110). Nevertheless, we agree with the trial court that, after the offer of a continuance was declined, no prejudice to the defense was established under these circumstances.

5. Over defendant Driscoll’s objection, the trial court permitted the State’s attorney to pose leading questions to Raul Briones on direct examination, and this evidentiary ruling is enumerated as error.

The State’s attorney sought permission to lead Raul Briones to clarify the individuals he identified as the perpetrators in three photographic lineups ultimately introduced in evidence by the State. Without objection, Raul Briones earlier identified Driscoll as a perpetrator from one such photographic lineup. He also later identified Driscoll at trial. Further, defendants were apprehended at the crime scene, and both made statements, admitted in evidence at trial, acknowledging their presence in Raul Briones’ home.

“ [I] t [is] purely within the discretion of the court as to whether the State’s counsel should be permitted to lead the witness, or to cross-examine his own witness.” Fouraker v. State, 4 Ga. App. 692, 693 (3) (62 SE 116). Inasmuch as Driscoll’s identity and presence at the scene were not disputed, the trial court did not abuse its discretion in permitting the State’s attorney to put leading questions to its witness while on direct examination, where the witness demonstrated a limited command of English. See Fugate v. State, 263 Ga. 260, 265 (10) (431 SE2d 104) (ignorance one basis upon which trial court may permit leading questions on direct examination).

6. Driscoll next challenges as impermissible hearsay the testimony of Investigator Sharpton concerning the photographic lineup in which Raul Briones identified him as a perpetrator. He argues that Investigator Sharpton’s own testimony was actually the testimony of the out-of-court interpreter employed to explain the photographic lineup procedures to Raul Briones. Driscoll also argues Investigator Sharpton’s testimony improperly bolstered Raul Briones’ in-court identification of him.

Investigator Sharpton testified he explained the photographic lineup procedures to Raul Briones through an interpreter. He also testified there had been no suggestion or coaching. No out-of-court witness’ statement was offered or admitted through Investigator Sharpton’s testimony. Consequently, no hearsay question arises under OCGA § 24-3-1. Moreover, it is settled that “[a] law enforcement officer is permitted to testify to a vocal fact of identification witnessed by himself without its being subject to a hearsay objection.” (Citations and punctuation omitted.) Neal v. State, 211 Ga. App. 829, 830 (1) (b) (440 SE2d 717). That is precisely what occurred in this instance.

7. In his enumerations of error, Driscoll farther contends the trial court erred in admitting into evidence the photographic lineup in which he was identified. He argues the lineup is unduly suggestive because the picture of him is small in comparison to the other pictures, and because it depicts him with facial hair.

The six photographs in the array are all white males of similar complexion, age, and hairstyle, photographed against dark backgrounds. Driscoll correctly points out that his photograph is smaller than four of the other pictures. Our review indicates that defendant Driscoll’s photograph is identical in size to one other picture and is only slightly smaller than the remaining four. Five pictures in the array depict men with facial hair.

“Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Citations and punctuation omitted.)

Heard v. State, 210 Ga. App. 805, 806 (2) (437 SE2d 496). An identification procedure is impermissibly suggestive when it leads the witness to an “all but inevitable identification” of a defendant as the perpetrator, or is the equivalent of the authorities telling the witness, “This is our suspect.” Miller v. State, 270 Ga. 741, 743 (2) (512 SE2d 272). We concur in the trial court’s assessment that the photographic array was not impermissibly suggestive for any of the grounds argued.

8. Driscoll contends the trial court erred in admitting Raul Briones’ testimony as to what he (Driscoll), defendant Thompson and Wilkes said or did in the presence of the victims. Driscoll argues this testimony was hearsay and that Raul Briones was incompetent as a witness because he did not speak English.

Raul Briones testified regarding what he heard and saw at the crime scene. “A trial judge’s determination that evidence is admissible as part of the res gestae will not be disturbed unless it is clearly erroneous.” (Citation omitted.) Robinson v. State, 197 Ga. App. 600, 601 (2) (399 SE2d 94). In the cases sub judice, the trial court’s ruling that this testimony was admissible under the res gestae exception to the hearsay rule was correct. A witness is not automatically disqualified as incompetent merely because he speaks English poorly. Schall v. Eisner, 58 Ga. 191, 192 (1). In the cases sub judice, the trial court properly ruled that Raul Briones’ competence as a witness and his credibility as a witness were matters for the jury to weigh. Steen v. State, 130 Ga. App. 632, 633 (204 SE2d 344); see also Hensley v. State, 228 Ga. 501 (1) (186 SE2d 729).

9. Driscoll next contends the trial court erred in allowing Raul Briones to testify whether the other victims appeared afraid or scared after being gathered in the living room. He argues this testimony improperly called for speculation. We disagree.

Raul Briones testified he was ordered into the living room at gunpoint. His brother and friends were already there. Defendants Thompson and Driscoll plus Wilkes were also in the living room, armed, dressed in dark clothing, interrogating the victims. Raul Briones was afraid, and he believed his brother and friends were also afraid because “[t]hey didn’t know what was going on.”

“Where the question under examination, and to be decided by the jury, shall be one of opinion, any witness may swear to his opinion or belief, giving the reasons therefor.” OCGA § 24-9-65. Moreover, a lay witness can give opinion testimony as long as he gives sufficient facts to form the basis of his opinion; a person’s state of mind or mental condition is properly the subject of opinion testimony and that after narrating the. facts and circumstances upon which his conclusion is based, a nonexpert witness may express his opinion as to the state of mind or mental condition of another. Leonard v. State, 157 Ga. App. 37, 38 (1) (276 SE2d 94) (1981).

O’Kelley v. State, 175 Ga. App. 503, 507 (3) (333 SE2d 838).

Decided August 30, 1999

Reconsideration denied September 14, 1999

Christopher T. Adams, for appellant (case no. A99A1285).

Stephen F. Mackie, for appellant (case no. A99A1297).

Daniel J. Porter, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.

Raul Briones certainly could testify that he himself was afraid in these circumstances. He also could relate what he observed about the others similarly situated in his presence. In our view, this was a sufficient factual predicate to authorize the trial court’s admission of Raul Briones’ opinion testimony as a nonexpert witness. O’Kelley v. State, supra.

10. Lastly, Driscoll contends the trial court erred in failing to give his written request to charge nos. 15, 18, 23, 24, 26, 28, 35, 36, 38, and 45 and, further, in failing to charge the jury as to the rights and powers of bounty hunters. Driscoll does not support the enumeration regarding his numbered requests by any argument or citation of authority. His claims of error as to these charges are therefore deemed abandoned in accordance with Court of Appeals Rule 27 (c) (2). As to the alleged error in failing to charge as requested, no evidence was adduced at trial indicating that defendants were bounty hunters.

If any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper. Hill v. State, 259 Ga. 557 (3b) (385 SE2d 404); Jones v. State, 200 Ga. App. 519, 521 (2c) (408 SE2d 823).

Harris v. State, 202 Ga. App. 618, 621 (4) (c) (414 SE2d 919). In the cases sub judice, the trial court properly refused to give the requested bounty hunter charge because it was not adjusted to the evidence.

Judgments affirmed.

Andrews, P. J., and Ruffin, J., concur.

       The State dismissed Counts 3 and 4. Count 8 was dismissed by the trial court.

       Wilkes was tried separately.


text:
    A99A1417.
    SKILLERN v. THE STATE.
    (521 SE2d 844)
   McMurray, Presiding Judge.

Defendant Warren Roland Skillern, a/k/a Warren Roland Me Wain, was charged in an indictment with enticing a child for indecent purposes (Count 1), child molestation (Count 2), two counts of aggravated child molestation (Counts 3 and 4), rape (Count 5), and cruelty to children (Count 6) for sexual acts directed at the minor victim, J. H., in August 1993. The jury acquitted him of Counts 1 and 4, but found him guilty as charged on all other counts. Defendant’s motion for an out-of-time appeal was granted, and defendant moved for a new trial raising the special ground of ineffective assistance of trial counsel. After an evidentiary hearing, this motion was denied, and this appeal followed. Held:

1. Defendant first challenges the sufficiency of the evidence to support his conviction for rape as alleged in Count 5.

The ten-year-old victim testified that defendant, a family friend, took her to a Days Inn motel room where he ordered the victim to “pull [her] nightclothes off” while defendant removed his own clothes. He told the victim to “sit on his private part,” which did not feel good on the victim’s “moo-moo.” Defendant then had the victim lie on her back. “He got up on top of [the victim,]” so that his private touched the outside of her private, and it hurt. Defendant offered the victim $20 if she “let [him] put his private in [her].” The victim confirmed that although she did not want him to do so, defendant “tried to force his private inside of [her].” “He couldn’t get it in and it hurt [the victim] real bad.” Phillip Nolan Gray, M.D., testified that the hymenal ring of a ten-year-old child is “[píretty sensitive,” and in order to touch it, one would have to “separate the labia” because it is not on the outside of the child’s body.

A person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will. OCGA § 16-6-1 (a) (1). Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ. OCGA § 16-6-1 (a). “It is not necessary that the vagina be entered or that the hymen be ruptured; the entering of the vulva or labia is sufficient.” Hall v. State, 29 Ga. App. 383, hn. 1 (a) (115 SE 278). Accord Morris v. State, 54 Ga. 440, 441. But see Newton v. State, 259 Ga. 853 (2) (388 SE2d 698). In the case sub judice, the victim’s lack of consent is established by proof that she was under the age of consent established by OCGA § 16-6-3, defining statutory rape. Collins v. State, 229 Ga. App. 658 (1) (a) (495 SE2d 59), aff’d, 270 Ga. 42 (508 SE2d 390). The element offeree is established by the victim not wanting defendant to enter her, as well as defendant’s intimidation of the victim that she would get “tooken [sic] away” if she told. Johnson v. State, 216 Ga. App. 858, 860 (2) (456 SE2d 251). The victim’s testimony that defendant tried to force himself into her and that this hurt her private authorizes the rational inference that defendant penetrated the victim’s vulva or labia with his sex organ, hurting the sensitive hymenal ring, without entering the vagina. Jackson v. State, 157 Ga. App. 604 (1) (278 SE2d 5). This is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of rape as alleged in Count 5 of the indictment. Lee v. State, 197 Ga. 123 (1) (28 SE2d 465). Accord Payne v. State, 231 Ga. 755 (1) (204 SE2d 128).

2. Next, defendant contends the trial court erred in charging the entirety of OCGA § 16-6-4 (c), because he was charged with aggravated child molestation only by committing sodomy on the minor victim, whereas the State introduced evidence that defendant hurt the victim, thus raising the possibility that the jury believed he committed aggravated child molestation in a manner not charged in the indictment, by causing physical injury to the child. Review of the transcript reveals that, without any limiting instructions, the trial court charged that aggravated child molestation occurs when a person “commits an offense of child molestation that physically injures the child or involves an act of sodomy.”

It is not usually cause for a new trial that an entire Code section is given even though a part of the charge may be inapplicable under the facts in evidence. However, it is error to charge the jury that a crime may be committed by either of two methods, when the indictment charges it was committed by one specific method. If there is a reasonable possibility that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment, then the conviction is defective because of a fatal variance between the proof at trial and the indictment returned by the grand jury.

(Citations and punctuation omitted.) Childs v. State, 257 Ga. 243, 253 (17) (357 SE2d 48). Under the controlling authority of Perguson v. State, 221 Ga. App. 212, 214 (1) (470 SE2d 909), this enumeration has merit.

In the case sub judice, proof that defendant hurt the child by his forcible attempts at complete penile entry is not the only evidence of physical injury. The victim testified that, when defendant tried to penetrate her digitally, it hurt, even though he had her use a lubricant. Although proof that defendant made the victim sit on his mouth, where she could feel his beard on her private is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize defendant’s conviction for aggravated child molestation as alleged in Count 3 of the indictment, we reverse this conviction because there is a reasonable possibility the jury convicted defendant of aggravated child molestation by committing an act of child molestation that physically injured the child. Perguson v. State, 221 Ga. App. at 214 (1), supra. Jury instructions in a criminal trial should be tailored to the indictment and adjusted to the evidence admitted in court. Hightower v. State, 210 Ga. App. 386, 388 (3) (436 SE2d 28). Without a limiting instruction directing the jury to consider only whether defendant committed aggravated child molestation in the manner specified in the indictment, the charge on the entire Code section 16-6-4 (c) violated due process, and the error in this instance cannot be deemed harmless. Dukes v. State, 265 Ga. 422, 424 (457 SE2d 556).

3. Defendant next contends the trial court erred in overruling his motion for new trial, arguing all of his convictions should be reversed due to the alleged ineffective assistance of his trial counsel. The three specific allegations of ineffective assistance are that trial counsel failed to investigate the case adequately; failed to procure expert testimony; and failed to call character witnesses requested by defendant.

When inadequate representation is alleged, the critical factual inquiry ordinarily relates to whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; and whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy. Generally, the burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

(Citations, punctuation and emphasis omitted.) Johnson v. State, 214 Ga. App. 77 (1) (447 SE2d 74).

In the case sub judice, it is not necessary to address specifically and individually each and every one of defendant’s instances of challenged trial tactics. It is sufficient to note that strategic choices, such as which witnesses to call or whether and how to conduct cross-examination, made after a thorough investigation are virtually unchallengeable. Stephens v. State, 265 Ga. 120, 122 (2) (453 SE2d 443); Flemister v. State, 229 Ga. App. 8, 9 (2) (492 SE2d 907). We have examined the transcript of the hearing, where counsel defended his decisions not to pursue certain avenues after the trial court declined to order the child witness to submit to psychological evaluation, and not to employ evidence of the Child Abuse Accommodation Syndrome, which was, in counsel's professional judgment, inapplicable. This is sufficient evidence to support the trial court’s ultimate conclusion that defendant failed to show ineffectiveness under the standards of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674). Flemister v. State, 229 Ga. App. at 9 (2), supra. Accord Ivory v. State, 234 Ga. App. 858, 861 (4) (508 SE2d 421).

Decided August 27, 1999

Reconsideration denied September 14, 1999

Wallace W. Rogers, Jr., for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

4. Since defendant’s appeal has been heard and decided on the merits, his fourth enumeration is without merit. Bates v. State, 228 Ga. App. 140, 141 (3) (491 SE2d 200); Miller v. State, 208 Ga. App. 547, 548 (2) (430 SE2d 873). Defendant’s convictions for child molestation under Count 2, for rape under Count 5, and for cruelty to children under Count 6 are affirmed. For the reasons expressed in Division 2, defendant’s conviction for aggravated child molestation under Count 3 of the indictment is reversed, and the case is remanded for a new trial as to that count.

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

Andrews, P. J., and Ruffin, J., concur.


author: Andrews, Presiding Judge.

text:
    A99A0897.
    PRICE v. THE STATE.
    (522 SE2d 543)
   Andrews, Presiding Judge.

Frank Price appeals from the judgment entered after a jury found him guilty of possession of cocaine with intent to distribute. We find no reversible error and affirm.

The evidence at trial, taken in the light most favorable to support the verdict, was as follows. On the day in question, an informant called one of the sheriff’s deputies and told him that Lonnie Wynn, Frank Price, and one other person would be driving through town shortly and gave the time at which they would be at a certain intersection. The informant said they would be driving a white Cadillac with a black top and would have recently bought $1,000 to $1,200 worth of crack cocaine. Investigators went to the location described by the confidential informant and saw Frank Price driving a white Lincoln with a black top, with Lonnie Wynn in the front passenger seat and a woman sitting in the back seat.

The officers pulled out behind the car and turned on the lights and siren. Price did not stop, but instead increased his speed, passing two cars on a curve with a double yellow line on the roadway. The police car followed right behind, and officers saw Wynn throw a package out of the car. The police car stopped, and the sheriff jumped out to secure the area where the package was thrown, while the other two officers stayed in the car and continued to follow Price and Wynn. When Price stopped the car at a red light, the officers got out and arrested Price and Wynn. After searching Price, officers found $2,972 in small bills.

The sheriff testified, stating that he secured the area where the package landed until another officer arrived. They then searched and found the package of cocaine on the shoulder of the road, a few feet from where the sheriff had been standing. A forensic chemist from the crime lab stated that the package found by the officers contained 26.1 grams of cocaine, worth about $1,000 to $1,500. One of the officers testified that, in his experience, a person would not be carrying that much cocaine for personal use.

Price testified in his own defense and said the $2,972 police found came from back payments for Social Security. He said he noticed the blue lights on the police car, but right after he saw them, the police car stopped and backed up. Then when he stopped at a red light the police car pulled up and officers got out and arrested him. Price denied buying any drugs or throwing any drugs out of the car.

Lonnie Wynn, Price’s co-defendant at trial, also testified and denied throwing anything out of the window, but said he could not see what the passenger in the back seat might have done, since she was sitting behind him. Wynn denied buying any cocaine that day. He admitted to seeing the blue lights on the police car, but said they were not speeding.

1. Price argues the evidence was insufficient to support the verdict because none of the evidence ever placed any drugs in Price’s hands. We disagree.

Possession of contraband may be actual or constructive. ... “A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. The law recognizes that possession may be sole or joint.”

Allen v. State, 191 Ga. App. 623, 624 (2) (382 SE2d 690) (1989); Anderson v. State, 166 Ga. App. 459, 460-461 (304 SE2d 550) (1983). “[JJoint constructive possession with another will sustain a conviction for possession of contraband.” Allen, supra.

Here, Price’s attempt to elude officers and Wynn’s act of throwing the cocaine out of the window of the car Price was driving were sufficient evidence from which a jury could conclude that Price was guilty of at least joint constructive possession. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The amount of cocaine recovered and the large amount of money Price was carrying were sufficient to sustain a conviction of possession with intent to distribute. Jackson, supra; Allen, supra.

2. Price also contends the trial court erred in allowing the officer to testify to what the confidential informant told him, claiming it was hearsay.

When, in a legal investigation, the conduct and motives of the actors are matters concerning which the truth must be found (i.e., are relevant to the issues on trial), then information, conversations, letters and replies, and similar evidence known to the actor are admissible to explain the actor’s conduct. [Cits.] But where the conduct and motives of the actor are not matters concerning which the truth must be found (i.e., are irrelevant to the issues on trial)[,] then the information, etc., on which he or she acted shall not be admissible.

Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982). Moreover, it is only in rare instances that the conduct of the officer needs to be explained, because in almost every case “the motive, intent, or state of mind of such an officer will not be ‘matters concerning which the truth must be found.’ ” Weems v. State, 269 Ga. 577, 578 (2) (501 SE2d 806) (1998).

This does not appear to be one of those rare instances where the conduct of the officers needs to be explained, and it was error for the trial court to admit this hearsay testimony. But, even if the trial court erred in admitting the officer’s testimony on what the informant told him, the error was harmless. The testimony was cumulative to the other evidence at trial, namely that Price and Wynn had over 26 grams of cocaine in their possession and a large sum of money; therefore, it is highly probable that this testimony did not contribute to the verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

3. Next, Price contends the trial court erred in denying his motion in limine and motion for continuance because the State failed to serve discovery on defense counsel. At the hearing on Price’s motion, the prosecutor stated that the entire file was mailed to Price because there was nothing in the State’s file showing an attorney of record. The prosecutor said that defense counsel could have requested a copy of the file at any time. The prosecutor also said there was no exculpatory evidence in the file as to Price, and Price did not make any statement to police. The court denied the motion for continuance, but said that it would allow defense counsel to talk to Lee, the forensic chemist from the Georgia Bureau of Investigation, before she testified.

If the State fails to comply with OCGA § 17-16-4 (a) (3), the trial court may prohibit the State from introducing the evidence it improperly withheld from the defense. This sanction, however, applies only where there has been a showing of prejudice to the defense and bad faith by the State. OCGA § 17-16-6.

Tucker v. State, 222 Ga. App. 517, 518 (3) (474 SE2d 696) (1996). Here, Price has made no showing of bad faith by the State nor of any prejudice resulting from the alleged failure to provide discovery.

As to the trial court’s refusal to grant a continuance, we conclude there was no reversible error. Granting or refusing a motion for continuance is a matter addressed to the discretion of the trial court, and absent a clear showing of abuse, this court will not reverse for denying a motion for continuance. Rhodes v. State, 200 Ga. App. 193, 194 (407 SE2d 442) (1991). Here, Price does not show how he was harmed as a result of the trial court’s failure to grant him a continuance. Therefore, there was no reversible error.

4. In his last enumeration of error, Price claims the trial court erred in admitting the package of cocaine into evidence because it was not properly identified, the proper foundation was not laid and the chain of custody was not established. Beyond these conclusory allegations, Price does not support this enumeration with any specific argument, nor does he cite to any testimony or evidence which might be deemed lacking or insufficient; therefore, we are unable to address this enumeration. We do note, however, that a review of the transcript shows that the State did establish with “reasonable certainty” that the cocaine entered into evidence was the package officers saw Wynn throw from the car. Anderson v. State, 247 Ga. 397, 399 (276 SE2d 603) (1981). There was no error.

Decided September 14, 1999.

Joseph L. Smith, for appellant.

Tommy K. Floyd, District Attorney, Sandra A. Graves, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J, and Ruffin, J., concur.


author: Phipps, Judge.

text:
    A99A1110.
    A99A1195.
    CHERRY v. THE STATE. JONES v. THE STATE.
    (522 SE2d 540)
   Phipps, Judge.

Tanzor Cherry and Lydrail Jones were charged with aggravated assault upon Jason Shuman and other offenses. Jones pled guilty to all charges, while Cherry pled guilty only to the aggravated assault charge. After pronouncement of sentence but before the term of court had ended, both defendants moved to withdraw their pleas. In Case Nos. A99A1110 and A99A1195, they have filed their respective appeals from the trial court’s denial of their motions.

Jones’s original defense lawyer was Richardson, but after entry of his guilty plea Jones was represented by another attorney. Cherry was and is represented by attorney Hubbard. Assistant district attorney Chapman prosecuted the case. Assistant district attorney Camesale participated in plea discussions.

Statements by Chapman at the pretrial hearing showed the following. The incidents giving rise to these criminal charges occurred at a high school. Animosity existed between Cherry and Shuman as a result of their mutual interest in the same girl. Cherry, Jones, and another individual were in a car when they approached Shuman and others walking on a sidewalk in front of the school. After words were exchanged between the two groups, Jones was struck in the face by an unidentified companion of Shuman’s. After Cherry handed Jones a gun, Jones exited the vehicle and ultimately shot Shuman three times. The first shot hit his foot; the second hit his abdomen; and the third penetrated his heart, causing a near-fatal injury that necessitated extensive, continuing surgeries. Shuman was unarmed.

Guilty pleas had been negotiated under which the prosecuting attorney would recommend that Jones and Cherry receive sentences that would require them to serve ten and five years, respectively. At a pretrial hearing, defense counsel argued that the recommended sentences were too harsh based on facts which they thought the evidence would show. After noting that a student previously had been killed at the school and that part of the purpose of sentencing is its deterrent effect on others, the judge commented that, if anything, he thought the sentence recommendations were too lenient but would reluctantly go along with them. After a brief recess following the pretrial hearing, defendants elected to proceed to trial. A jury was selected and impaneled later that day.

Although the following parts of the trial proceedings were not reported, statements made and testimony given by the attorneys at the hearing on defendants’ motion to withdraw the pleas show that the following occurred. At the beginning of trial the following morning, the parties appeared in court with their attorneys and parents. Outside the presence of the jury, the judge conducted a bench conference with Hubbard, Richardson, Chapman, and possibly Carnesale. The judge conveyed to the attorneys that he had previously presided over a case with facts very similar to the one at bar. In the earlier case, the judge came to believe that the defendants’ failure to enter pleas of guilty resulted from a lack of communication between them, their parents, and attorneys. To ensure that nothing of that nature occurred in this case, the judge recommended that defense counsel talk to their clients and parents to confirm that their decisions to proceed to trial were voluntary and intelligent. Without objection, the judge then addressed defendants and their families in open court. At that time, the judge did not make any explicit threats or implicit suggestions that the defendants would receive harsher sentences than those recommended by the State if they were tried and convicted. Nor did the judge participate in plea discussions which followed. But the judge did comment that bad decisions had led to the shooting, and that defendants should consult with counsel one last time to avoid another potential bad decision. During the ensuing plea discussions, Carnesale impressed upon the defendants that the judge would impose harsher sentences if they did not plead guilty. There is some conflict in the testimony on the question of whether Carnesale attributed his conclusion in this regard to the comments of the judge, or to the increasing strength of the State’s evidence and the possibility that additional aggravating circumstances would be shown. After these discussions, defendants entered their guilty pleas and received the recommended sentences. Held:

For a number of reasons, Uniform Superior Court Rule 33.12 provides that after sentence is imposed a guilty plea may be withdrawn only to correct a manifest injustice. State v. Evans, 265 Ga. 332, 336 (3) (454 SE2d 468) (1995). Withdrawal is, however, necessary to correct such an injustice if a defendant is denied effective assistance of counsel or if the guilty plea was entered involuntarily. Id. “Once the question of the validity of a plea of guilty has been raised by a defendant, the .state has the burden to show that the plea was intelligently and voluntarily entered. [Cit.]” Sanders v. State, 169 Ga. App. 125, 126 (312 SE2d 160) (1983). Ultimately the question of whether to permit withdrawal of a guilty plea rests in the sound discretion of the trial court. Neal v. State, 216 Ga. App. 223, 224 (453 SE2d 807) (1995).

1. In this appeal, Jones claims that his guilty plea was not intelligently entered, in that Richardson erroneously advised him that he could not prevail on his self-defense claim because the evidence would indisputably show that Shuman was not in possession of a weapon. Jones thus contends that his plea was the product of ineffective assistance of counsel.

To prevail on a claim of ineffective assistance of counsel in the context of a guilty plea, [Jones] must show counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, absent counsel’s errors, he would not have pleaded guilty. A court’s finding that counsel has rendered effective assistance will be affirmed unless it is clearly erroneous. [Cit.]

Martin v. State, 268 Ga. 584-585 (492 SE2d 223) (1997). Jones must also overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. Snyder v. State, 201 Ga. App. 66, 70 (8) (d) (410 SE2d 173) (1991).

Jones maintains that under OCGA § 16-3-21 he could have established that he was in reasonable fear of great bodily injury even though Shuman did not have a weapon. He asserts he could have accomplished this primarily through witnesses. According to Jones, this testimony would have shown that the first shot was fired to prevent Shuman from physically assaulting him, and the second shot, which inflicted the near-fatal injury, was to protect himself because Shuman then lunged toward him. Richardson was of the opinion that the jury would nonetheless reject Jones’s claim of self-defense, because the supposed warning shots had struck Shuman in the foot and abdomen and Shuman’s act of lunging at Jones would be viewed as attempted self-defense. On the basis of the record before us, we cannot say that this was not a reasonable assessment. Consequently, the court did not abuse its discretion in refusing to allow Jones to withdraw his guilty plea.

2. But Cherry’s challenge to his guilty plea stands on a different footing. Although testimony given below showed that Jones decided to plead guilty based on the continuing advice of his lawyer, no such evidence was presented with respect to Cherry. He asserts that his plea was not freely and voluntarily entered because he was unduly influenced by the comments of the trial judge.

Skomer v. State, 183 Ga. App. 308 (358 SE2d 886) (1987), relied on by Cherry, holds judicial participation in the plea negotiation process improper, particularly when it involves discussion of the sentence the judge intends to impose if the plea is not accepted. Although Skomer recognizes that it may reasonably be assumed that any defendant is mindful of this possibility, the court in Skomer held that there is an enormous difference between an awareness that such an eventuality may ensue and a reminder by the judge that it will ensue. Id. at 310. The Skomer court concluded that it was error to refuse to allow the defendants’ guilty pleas to be withdrawn, because there was a substantial likelihood that the defendants were unduly influenced to enter guilty pleas by the judge’s comments during plea negotiations that he would consider giving them probation if they pled guilty but not if they were tried and convicted. Compare Baptiste v. State, 229 Ga. App. 691, 699 (3) (494 SE2d 530) (1997) (finding Skomer distinguishable because the judge neither participated in plea negotiations nor stated what sentence would be imposed if the defendant rejected the plea offer and was convicted at trial).

Decided September 14, 1999

Franklin & Hubbard, Curtis L. Hubbard, Jr., for appellant (case no. A99A1110).

James E. Millsaps, for appellant (case no. A99A1195).

Although the judge in this case did not participate in plea negotiations or expressly state that Cherry’s sentence would be harsher if he did not plead guilty, the judge did make comments at the pretrial hearing to the effect that the recommended sentence was too lenient. There was nothing improper in these comments in the context in which they were made. But after the trial had begun, the judge called a halt to the proceedings by suggesting that a decision by the defendants to proceed to trial would be unwise. This resulted in the renewal of plea discussions followed by Cherry’s entry of his guilty plea. Under the circumstances, we must conclude that, as in Skomer, there was a substantial likelihood that Cherry was unduly influenced to plead guilty by the totality of the judge’s comments. Under the record before us, the State has not carried its burden of showing that Cherry’s guilty plea was voluntarily entered. Therefore, Cherry should have been allowed to withdraw his plea.

Judgment affirmed in Case No. A99A1195.

Smith and Eldridge, JJ, concur. Judgment reversed in Case No. A99A1110. Smith, J., concurs. Eldridge, J., concurs in judgment only.

J Tom Morgan, District Attorney, Keith A Carnesale, Maria Murder-Ashley, Assistant District Attorneys, for appellee.


text:
    A99A1280, A99A1281.
    PARKS v. THE STATE (two cases).
    (522 SE2d 532)
   Phipps, Judge.

Chadwick Parks, Rapheal Bryant, and Richard Shun Manuel were charged with burglary, robbery by force, and aggravated assault on a person over 65 years old. Bryant was given a reduced sentence and testified against Parks and Manuel at their joint trial. The jury found Parks guilty of burglary and robbery by force but not guilty of aggravated assault. Following denial of his motion for new trial, Parks appeals his convictions in Case No. A99A1280. We affirm the convictions. In Case No. A99A1281, he appeals the denial of his motion for an appeal bond. We dismiss the appeal from the denial of bond.

The elderly victim, Harry Flanders, testified that he was alone in his house during the early morning hours of May 20, 1998. As he walked from the kitchen to the bedroom, intruders threw a blanket over his head and physically assaulted him. He sustained a concussion from being hit on the head with a blunt object. His assailants fled the scene after taking over $2,000 in cash, among other things. Although Flanders never saw the robbers, he testified there were at least two of them.

State’s witness Toni Manuel, who resided in New York at the time of trial, previously lived in Georgia with her cousin, Richard Manuel, and Rapheal Bryant. Toni Manuel testified that on the evening in question, she overheard Bryant and her cousin Richard planning a robbery. According to Toni, Richard and Bryant left the house in the evening and returned at approximately 4:00 a.m. with Parks. Toni testified that Bryant admitted to her that the trio had robbed Flanders after entering his house through a window, that Richard was in possession of a large amount of cash, and that Richard had helped Bryant restrain Flanders. Parks told Toni that he wanted his name kept out of it.

Bryant testified that Richard Manuel planned the robbery and enlisted Parks to aid in the crime. Bryant further testified that they broke into Flanders’s house through a window and threw the blanket over his head as he was walking from the kitchen to his bedroom. According to Bryant, he and Manuel accosted Flanders, Manuel hit him over the head with a gun, and Parks rummaged through the house. Toni Manuel later discovered a gun wrapped in a T-shirt in Richard Manuel’s closet.

1. Parks first contends that he should have been granted a new trial because of newly discovered evidence.

That evidence was testimony given by Bryant by post-trial affidavit and at the hearing on Parks’s motion for new trial. Bryant testified that he falsely implicated Parks in the crimes because Manuel had threatened to kill Bryant otherwise. But when cross-examined at the motion hearing, Bryant could not explain why Manuel was not threatening Bryant because of Bryant’s testimony implicating Manuel.

Bryant’s testimony was not so material that it would probably produce a different verdict. Consequently, the court did not abuse its discretion in denying Parks’s motion for new trial on the ground of newly discovered evidence. See generally Humphrey v. State, 252 Ga. 525, 528 (3) (314 SE2d 436) (1984); Kitchens v. State, 228 Ga. 624, 626 (4) (187 SE2d 268) (1972).

2. Next Parks complains of the denial of his motion for new trial based on his claim that trial counsel was ineffective in various regards.

Under the holding in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), there is a two-pronged test for determining the validity of a claim of ineffective assistance of counsel: whether (1) counsel’s performance was deficient; and whether (2) this deficiency prejudiced the defense (there is a reasonable possibility that the outcome of the proceedings would have been different, but for counsel’s deficiency). [Cit.]

Thompson v. State, 188 Ga. App. 508, 509 (373 SE2d 292) (1988).

(a) Parks charges his trial counsel with ineffectiveness in failing to cross-examine Toni Manuel concerning criminal charges pending against her and in not objecting to the trial court’s refusal to allow Manuel’s defense attorney to question the witness on this subject.

When Manuel’s attorney began this line of questioning, the court called for a conference outside the jury’s presence. During the conference, it was shown that the witness had left Georgia without paying a fine imposed as a result of reckless conduct charges in magistrate court. Nonpayment of the fine led to issuance of a bench warrant. The prosecuting attorney asked that the witness not be arrested on the warrant while she was testifying at this trial. Because the charges against the witness were not dismissed, the court refused to allow questioning of her on this topic.

Although the defendant has a right to search for an agreement between the government and a State’s witness where the witness may have a substantial reason to cooperate with the government, Hines v. State, 249 Ga. 257, 260 (2) (290 SE2d 911) (1982), it appears without contradiction that there was no such agreement. Manuel’s attorney sought to cross-examine the witness concerning a matter which simply did not provide a “substantial reason” for her to cooperate with the government. The trial court did not abuse its discretion in disallowing cross-examination regarding this subject. Consequently, neither deficient performance by counsel nor prejudice to Parks has been shown.

(b) Parks next claims that counsel was ineffective in failing to cross-examine defendant Manuel. However, the prosecuting attorney thoroughly cross-examined him. Parks shows no additional benefit to him if his attorney had pursued questioning.

(c) Parks complains of counsel’s failure to object, or reserve his right to object, to the court’s failure to give his request to charge on mere presence at the scene of the crime.

Although that request to charge does not appear in the record, the court would not have erred in refusing to give it. “It is, of course, true that mere proof of the accused’s presence at the scene of the crime, without any evidence to show further participation in the commission of the crime, is insufficient to authorize a conviction. [Cits.]” Muhammad v. State, 243 Ga. 404, 405-406 (1) (254 SE2d 356) (1979). But the principles contained in a request to charge on mere presence

are no more than corollaries “to the requirement that the (S)tate prove each element of the offense charged.” [Cit.] “The trial court gave a full and correct charge on the presumption of innocence and on the requirement that the (S)tate prove each and every element of the offenses charged . . . beyond a reasonable doubt.” [Cit.] “The trial court further instructed the jury that to warrant a conviction on circumstantial evidence, the proved facts must exclude every reasonable hypothesis save that of guilt. . . . The foregoing jury charges were full and fair and, in view of them, the trial court’s refusal to instruct the jury on [mere presence would not have constituted] reversible error under the facts of this case.” [Cit.]

Mattox v. State, 196 Ga. App. 64, 66 (3) (395 SE2d 288) (1990).

3. Parks contends that in view of his acquittal on the charge of aggravated assault, his conviction of robbery by force must be set aside under the “mutually exclusive” rule articulated in Strong v. State, 223 Ga. App. 434 (477 SE2d 866) (1996).

But Strong was overruled in Kimble v. State, 236 Ga. App. 391, 392 (1) (512 SE2d 306) (1999), because Strong failed to properly apply the decision in Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986). Milam abolished the “inconsistent verdict” rule in criminal cases. Therefore, this enumeration of error is without merit.

Decided September 14, 1999.

Virgil L. Brown & Associates, Bentley C. Adams III, for appellant.

William T. McBroom III, District Attorney, Mark M. Irvin, Assistant District Attorney, for appellee.

4. Parks charges the court with error in denying his motion for directed verdict of acquittal.

This raises the question whether the evidence is sufficient to support the verdict under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997). When reviewing a conviction under Jackson, we determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the’ crimes beyond a reasonable doubt. Goodman v. State, 237 Ga. App. 795, 796 (516 SE2d 824) (1999). We determine the sufficiency of the evidence and not its weight. Id. The jury’s verdict in this case must be upheld, because there is competent evidence to support each fact necessary to support the convictions. Id.

5. “Because we have decided the main appeal, the appeal from the denial of bond pending post-trial relief is moot. [Cit.]” Fenimore v. State, 218 Ga. App. 735, 739 (463 SE2d 55) (1995).

Judgment affirmed in Case No. A99A1280. Appeal dismissed in Case No. A99A1281.

Pope, P. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A99A1290.
    DODD v. THE STATE.
    (522 SE2d 538)
   Smith, Judge.

Eddie Dodd appeals from the trial court’s order denying his motion to dismiss his indictment based on double jeopardy grounds. We find no error, and we affirm.

This case arose after Tadd Burdick was stopped for a traffic violation in March 1998 by Corporal Eddie Gilmore, an officer with the City of Ellijay. Gilmore’s investigation showed that the vehicle driven by Burdick was stolen, and Gilmore arrested Burdick. Burdick implicated Dodd in the theft charge and told Gilmore, as well as detectives with the Ellijay police department and the Gilmer County sheriff’s office, that Dodd possessed a quantity of marijuana inside a particular room they were sharing at a certain motel and gave consent to search the room. These officers found Dodd inside the motel room described by Burdick, and Dodd was arrested after one of the officers found a bag containing a substance appearing to be marijuana in a dresser drawer.

Dodd pled guilty in municipal court to the charge of possession of marijuana and was subsequently charged along with Burdick in superior court with two counts of theft by taking and one count each of theft by receiving, theft by disposing of stolen property, and theft by deception. Dodd filed a motion in autrefois convict alleging that the substance of the marijuana charge in municipal court was part of the same transaction for which he was charged in superior court and that to try him on any of the charges in the superior court indictment would constitute double jeopardy.

OCGA § 16-1-7 (b) provides that, with certain exceptions described in subsection (c) of the same Code section, “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.” The “proper prosecuting officer” is not the arresting officer, as argued by Dodd. Instead, “the language of the statute clearly means the prosecuting attorney for the state; that is, the district attorney or his authorized assistants.” (Citation and punctuation omitted.) Zater v. State, 197 Ga. App. 648, 649 (399 SE2d 222) (1990). See also Blackwell v. State, 232 Ga. App. 884, 885-886 (502 SE2d 774) (1998). Here, while the record shows that Officer Gilmore and perhaps other officers employed by the City of Ellijay and Gilmer County may have been aware of the existence of several potential violations, nothing in the record shows that the “district attorney or his authorized assistants” were aware of both the marijuana violation and the violations associated with the theft. The trial court therefore did not err in denying Dodd’s motion.

Cases relied upon by Dodd, Grady v. Corbin, 495 U. S. 508 (110 SC 2084, 109 LE2d 548) (1990) and Blockburger v. United States, 284 U. S. 299 (52 SC 180, 76 LE 306) (1932), do not apply in this case. Grady v. Corbin was overruled in United States v. Dixon, 509 U. S. 688 (113 SC 2849, 125 LE2d 556) (1993). See also State v. Williams, 214 Ga. App. 701, 702 (448 SE2d 700) (1994). And contrary to any argument by Dodd, the “Blockburger test” for determining whether double jeopardy provisions would bar a subsequent prosecution actually supports the trial court’s ruling. “Under Blockburger[, supra], successively charged offenses are separate for purposes of double jeopardy only if proof of each offense requires proof of some element or fact which proof of the other does not.” (Citations and punctuation omitted.) Blackwell v. State, 230 Ga. App. 611 (1) (496 SE2d 922) (1998). It is beyond question that the offenses charged against Dodd in the indictment did not require proof of the same elements involved in the marijuana offense. Consequently the trial court correctly refused to dismiss Dodd’s indictment.

Decided September 14, 1999.

Conrad & Abernathy, Eric A. Ballinger, for appellant.

Roger G. Queen, District Attorney, William W. Fincher III, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       We note that in Blackwell, supra, 232 Ga. App. 884, similar issues were decided adversely to the defendant, who was represented by the same counsel who represents Dodd.


text:
    A99A1498.
    SCOTT v. THE STATE.
    (522 SE2d 535)
   Eldridge, Judge.

Johnny Scott was arrested for selling crack cocaine to Jeremy Mann. Scott gave a statement to the police admitting to the sale. At trial, Mann testified that Scott sold him crack cocaine; Scott’s confession to the police was also put before the jury. In addition, three similar transactions were introduced against Scott. Scott, on the other hand, testified that he never sold cocaine to Mann and that his arrest was a police set-up because he refused to implicate a third party. A Muscogee County jury did not believe Scott’s version of events and found him guilty of sale of cocaine. He appeals the conviction. We affirm.

1. Scott challenges the sufficiency of the evidence introduced against him by attacking the credibility of the State’s witnesses. However, “an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation and punctuation omitted.) Kovacs v. State, 227 Ga. App. 870-871 (1) (490 SE2d 539) (1997). Accordingly, we find the evidence sufficient for a rational trier of fact to have found Scott guilty as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court held a Jackson-Denno hearing to determine the admissibility of Scott’s in-custody statement. At the hearing, the State produced testimony from the arresting officer which would authorize a finding that Scott freely and voluntarily made the statement. Scott, on the other hand, testified that he made no statement at all and that the police “fabricated” the confession. Accordingly, the trial court was called upon to make a credibility determination. Finding the arresting officer’s testimony the more credible of the two, the trial court admitted Scott’s statement.

“Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.” (Citations and punctuation omitted.) Lawton v. State, 263 Ga. 168, 171 (429 SE2d 921) (1993). Based upon a review of the transcript of the Jackson-Denno hearing, there was no error in the trial court’s determination that Scott’s statement was admissible into evidence. Warbington v. State, 267 Ga. 462, 463 (3) (479 SE2d 733) (1997).

3. Scott claims error in the State’s closing argument. While urging the jury to “stomp it [drug abuse] out now,” the prosecutor referred to crack cocaine as a “slow killer” and analogized the prevalence of the drug to the “Black Plague.” We find no error. “[T]he State may argue to the jury the necessity for enforcement of the law and may impress on the jury, with considerable latitude in imagery and illustration, its responsibility in this regard.” (Citation and punctuation omitted.) Philmore v. State, 263 Ga. 67, 69 (3) (428 SE2d 329) (1993).

4. Scott contests the admission of similar transaction evidence. Scott contends that the State failed to show any similarities between three prior offenses and the case-in-chief. We disagree.

In the case-in-chief, Scott was standing on the corner of 24th Street and 15th Avenue in Columbus, which is a high drug crime area. Mann pulled up in his vehicle. Scott approached the vehicle, and Mann asked him for $10 worth of cocaine. Scott sold him the drug, and Mann asked for $20 more. Scott left the vehicle to get more cocaine; he walked onto the porch of a house on the corner, where another man was waiting. The police arrested Scott on the porch.

With regard to the independent offenses, a 1996 offense occurred at the same locale as the instant case, i.e., 24th Street and 15th Avenue in Columbus. As in the instant case, Scott and another man were standing on the corner for no apparent purpose. A police drug patrol stopped to investigate what appeared to be loitering. When approached by the officers, Scott dropped a piece of tissue. Officers retrieved the tissue which contained crack cocaine. A 1994 case came out of nearby 25th Street in Columbus. Officers received complaints that two men were selling drugs from the porch of an abandoned home. When officers approached the porch, crack cocaine was in plain view thereon. Scott was one of two men on the porch. Finally, a 1987 case also came out of 24th Street in Columbus. An undercover officer approached Scott on the street and asked for ten Ritalin pills, which, like cocaine, is a Schedule II drug. Scott took the money, went around the corner to an unknown locale, and returned with the pills. He was arrested.

“On the question of similarity, the trial court’s findings will not be disturbed unless clearly erroneous.” (Citations and punctuation omitted.) Cantrell v. State, 210 Ga. App. 218, 220 (435 SE2d 737) (1993). Here, both the case-in-chief and the independent offenses tend to show that Scott has been selling illegal drugs on the streets in and around the same area in Columbus for many years. All three of the independent offenses and the instant offense demonstrate an undeniable course of conduct. The trial court did not err in admitting this evidence.

5. Scott contends that the State violated Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), by using four peremptory strikes against black prospective jurors. The record shows that the State gave reasons for these four peremptory strikes, rendering the necessity of a preliminary showing of prima facie discrimination moot. Lewis v. State, 262 Ga. 679, 680 (2) (424 SE2d 626) (1993). Following the State’s explanations, the trial court determined that the State had not acted with discriminatory intent: “I detect no racial overtones here.” This ruling will be affirmed unless it is clearly erroneous. Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996).

Individual voir dire was not taken down. However, the State’s reasons were race-neutral on their face. Juror 1 was struck for health reasons and because a family member had a prior conviction. See Slade v. State, 270 Ga. 305 (509 SE2d 618) (1998). Juror 11 was struck because he was a postal worker, and postal workers had been instrumental in creating hung juries during at least three other trials in which the prosecutor participated. See Johnson v. State, 266 Ga. 775, 776-777 (470 SE2d 637) (1996). Juror 16, the only widow on the panel, was struck because, in the prosecutor’s experience, widows “seem to be more sympathetic” to defendants. See Kirksey v. State, 195 Ga. App. 379, 380 (1) (393 SE2d 508) (1990). Juror 25 was struck because she lived in what is apparently the worst drug crime area in Columbus. The trial court noted that a juror from that area may well be “scared to go home having convicted somebody of a drug offense.” See Smith v. State, 264 Ga. 449, 454 (448 SE2d 179) (1994); Sorrells v. State, 218 Ga. App. 413, 414 (461 SE2d 904) (1995).

“A trial court’s determination of a Batson challenge rests largely upon assessment of the attorney’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province.” Burton v. State, 233 Ga. App. 429, 430 (504 SE2d 279) (1998). Here, the trial court found no evidence of racial discrimination in the State’s otherwise racially neutral explanations. We cannot say that such determination was clearly erroneous.

Decided September 14, 1999.

Carolyn E. Moller, for appellant.

J. Gray Conger, District Attorney, E. Wayne Jernigan, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       OCGA § 16-13-26 (3) (D).