author: Beasley, Judge.

text:
    A90A1712.
    SALLEY v. THE STATE.
    (405 SE2d 260)
   Beasley, Judge.

Appellant was convicted of three counts of child molestation. Count 1 alleged that on January 1, 1986, appellant fondled the pubic area of Shanda Johnson, under age 14. Count 2 alleged that during November 1985, appellant fondled the breast of Jennifer Davis, also under 14 years of age. Count 3 alleged that during February 1986, appellant again fondled the breast of Jennifer Davis.

1. Appellant argues that the trial court erred in denying his motions for directed verdicts of acquittal on general evidentiary grounds and on the specific ground that the State did not establish venue of the offense involving Shanda Johnson in Upson County.

Jennifer Davis testified that during the Thanksgiving holiday in 1985, appellant, who was the choir director of a church in Upson County, approached her while they were alone in the church kitchen. He put his arms around her, fondled her breast, pulled her close to him, and told her she was pretty. She pushed him aside and ran away.

At a Valentine’s Day party at the church in 1986, appellant again approached her while they were alone. He kissed her and again fondled her breast, telling her afterward she should not tell anyone. She became depressed and tried to kill herself by taking an overdose of pills. Eventually, she told her minister what had occurred and, at his urging, she told her parents.

Shanda Johnson testified that she also knew appellant through the church. She was spending the night at his home on New Year’s Eve on January 1, 1986, so as to babysit for appellant’s children the next day. As she was going to sleep in the living room, he approached her and put his hand down her underwear touching her pubic area. She fled to the bathroom where she remained until dawn.

The evidence was sufficient to authorize a rational trier of fact in finding appellant guilty of the offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). As to venue, slight evidence, either direct or circumstantial, is sufficient where there is no conflicting evidence. Patterson v. State, 157 Ga. App. 233 (276 SE2d 900) (1981). In this case, it amounted to un-contradicted evidence that the Upson County law enforcement and family services authorities conducted the investigation, as to the alleged molestation of Shanda Johnson at defendant’s home.

2. Appellant argues that the trial court erred in denying his pretrial motion for the disclosure of records of counseling and therapy sessions between Jennifer Davis and State’s witness Cheryl Cole. He also complains of the trial court’s refusal to allow him to examine these records during the course of the trial, on the ground that witness Cole had used the records to refresh her recollection.

(a) At the commencement of the trial, defense counsel argued that these records should be disclosed under Bobo v. State, 256 Ga. 357 (349 SE2d 690) (1986), and “[a]t the very least, I think that a review of that file by the Court, under . . . our Brady motion would be in order.” The trial judge asked whether this witness was a psychologist or psychiatrist, and neither defense counsel nor the prosecuting attorney could give a definite answer to this question. The trial judge ruled, “If she’s nothing but just a lay witness, I don’t see how you can search out her work product or whatever she might have. If she gets on the stand and refers to notes, you’ve got a right to see what she’s testifying from. . . .”

At trial, Cole testified that she works as a “psychotherapist [and is] a master level psychologist.” In that capacity, she counsels children who have been physically or sexually abused, and she began counseling Jennifer in March of 1989. On cross-examination, defense counsel asked this witness how many times she had met with Jennifer, and she responded that they had been having regularly scheduled sessions every two weeks since March. In order to answer cross-examination about the exact number of times she had seen Jennifer, defense counsel suggested that the witness refresh her memory by re-

I viewing her case file which she had brought with her. After counting the number of dates appearing in her file, the witness testified that she had see Jennifer 23 times, whereupon defense counsel sought to examine the file. The prosecuting attorney objected on the ground that the contents of the file were confidential. The trial judge sustained this objection, noting that the witness had only counted the number of therapy sessions between her and Jennifer, and she had not otherwise reviewed the contents of the file. Appellant concedes that the records of witness Cole’s counseling and therapy sessions with Jennifer constitute confidential medical records.

Where, during the course of a trial or hearing, a witness in a criminal case examines a document in order to refresh the witness’ recollection, the defendant has the right to examine the document. Johnson v. State, 259 Ga. 403 (383 SE2d 118) (1989). However, this case is akin to Reese v. State, 191 Ga. App. 887, 888 (2) (383 SE2d 149) (1989), where a detective testifying in a criminal trial examined portions of his report in order to testify as to the specific dates on which certain events had occurred. Defense counsel was not thereby entitled to examine the witness’ entire file. The same applies here. The witness was not using the file to refresh her recollection or memory of the precise total number of times she had met with the victim; she was simply ascertaining that number.

Moreover, since the examination sought was based only on the witness’ use of the file to establish an incidental fact, any error in denying the examination would be harmless. That is, it was of little consequence whether the number of bi-weekly meetings between March and the time of trial was 23 or more or less. Had counsel’s count differed upon review of the file, defendant would not have been aided.

(b) State’s witness Cole testified on cross-examination that Jennifer had told her she had attempted to commit suicide by taking an overdose of sinus medication and “[s]he indicated that it had occurred very recently before seeing me, within the last very few months. . . . [I]t was my understanding that she said that it was very recently.” The witness also acknowledged that Jennifer had told her she had recently been involved in a relationship with a young man. Defense counsel argued that the young man’s ending the relationship is what caused Jennifer to attempt suicide. The witness testified that Jennifer had not made such statements to her.

Jennifer had previously testified on cross-examination that she had been dating this young man, that he had unbuttoned her shirt while they were on a date, and that she had buttoned it back without further incident. She further testified that they did break up and that she tried to kill herself because of this by running a razor blade across her wrist one time, but the razor blade did not cut her. She testified that the first suicide attempt followed the incidents with appellant and occurred several years prior to trial, and the more recent suicide attempt followed her involvement with the young man. Cole testified that it was her understanding that the suicide attempt relating to appellant’s molestation of the victim was the more recent attempt.

Sosebee v. State, 190 Ga. App. 746, 748 (3) (380 SE2d 464) (1989), holds that although the defendant in a child-molestation case cannot compel a child-witness to submit to a pre-trial interview, the defendant is entitled, upon request, to have the trial court conduct an in-camera inspection of the child’s medical records in order to determine if there are any portions which constitute material information that should be released to the defense.

The trial judge denied the appellant’s pre-trial motion for an in-camera inspection of witness Cole’s records of counseling sessions with the victim because of the appellant’s uncertainty as to whether witness Cole would be testifying as an expert witness. When she was called to testify, appellant did not renew his motion. Consequently, the trial court did not err in failing to conduct the in-camera inspection. See Swann v. State, 256 Ga. 254 (2) (347 SE2d 555) (1986); Holmes v. State, 187 Ga. App. 214 (369 SE2d 533) (1988).

Bobo v. State, supra, is a plurality opinion holding that the statutory psychiatrist-patient evidentiary privilege must yield to a criminal defendant’s constitutional right of confrontation, upon “a showing of necessity, that is, that the evidence in question is critical to his defense and that substantially similar evidence is otherwise unavailable to him.” Id. at 360 (4).

The inconsistency between Jennifer’s statement concerning the date of the attempted suicide relating to appellant’s molestation of her and witness Cole’s understanding of that date was presented to the jury through the testimony of both witnesses. The evidence sought by appellant was not “critical,” within the meaning of Bobo.

3. Appellant argues that the trial court erred in denying his motion to sever Counts 2 and 3 of the indictment (11-year-old victim Jennifer Davis, November 1985 and February 1986, church relationship) from Count 1 (12-year-old victim Shanda Johnson, January 1986, church relationship).

Two or more offenses may be tried together when the offenses: “(a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. . . .” Dingler v. State, 233 Ga. 462, 463 (211 SE2d 752) (1975) (citing and adopting ABA Standards on Joinder of Offenses). “Whenever two or more offenses have been joined for trial solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses.” Id. In other circumstances, “[t]he decision to grant a severance rests within the sound discretion of the trial judge, who may balance the interests of the state and the accused by considering such factors as whether the same evidence would be necessary and admissible in each count, and whether the joining of counts in one trial might confuse the jury. Clemson v. State, 239 Ga. 357, 360 (1) (236 SE2d 663); Jarrell v. State, 234 Ga. 410, 412 (1) (216 SE2d 258).” Gilbert v. State, 163 Ga. App. 688, 690 (3) (295 SE2d 173) (1982); see also Childs v. State, 177 Ga. App. 257 (1) (339 SE2d 311) (1985) (condoning a liberal approach to the admission of evidence of independent crimes in cases concerning sexual abuse of children).

What was true in Jordan v. State, 172 Ga. App. 496 (1) (323 SE2d 657) (1984), is true here: “[t]he crimes of which the appellant was accused fit the criteria for joint trial,” leaving the question of severance to the discretion of the trial judge. We find no abuse in the denial of appellant’s motion for severance.

4. Appellant argues that the trial court erred in imposing sentence on both Counts 2 and 3 (Jennifer Davis) of the indictment, because the offenses charged in these counts differed only as to the dates of the offenses and the dates were not alleged as essential aver-ments.

Counts 2 and 3 charged appellant with having committed separate acts of child molestation upon the same victim on different dates in different years. “Where an averment in one count of an accusation or indictment distinguishes it from all other counts, either by alleging a different set of facts or a different date which is made an essential averment of the transaction, the State may on conviction punish the defendant for the various crimes. . . .” (Emphasis supplied.) Wiley v. State, 124 Ga. App. 654, 656 (185 SE2d 582) (1971). In this case, as in Hamilton v. State, 167 Ga. App. 370, 371 (306 SE2d 673) (1983), “[t]he averments of each count refer to a different period of time hence same is made an essential averment of the transaction, and each count of the indictment is distinguishable.” Compare Lapan v. State, 167 Ga. App. 250, 253 (4) (305 SE2d 858) (1983) and cits.

5. Appellant argues that the trial court erred in restricting his cross-examination of State’s witness Cole.

Appellant sought to ask witness Cole hypothetical questions in regard to whether a child who had been sexually molested might attempt to commit suicide because of a broken “serious” relationship with a young man. The state objected on grounds that the term “serious” is subject to varying connotations, see Smith v. State, 259 Ga. 135, 136 (1) (377 SE2d 158) (1989), and there was no evidence that the victim had a “serious” relationship. The trial court sustained this objection on grounds that appellant was assuming facts not in evidence; therefore, a proper foundation for this hypothetical question had not been laid. See generally Bowers v. State, 153 Ga. App. 894 (1) (267 SE2d 309) (1980).

Appellant stated he had a witness whose testimony would establish a foundation for this line of questioning, and the trial judge stated he would permit such witness to testify. Appellant asked if he could recall witness Cole after the other witness testified and pose the requested hypothetical question to her. The trial judge responded that he could. Appellant did not thereafter seek to recall Cole. We find no error.

6. Finally, appellant complains of the admission of testimony by state’s witness Cole that as far as she could determine, Jennifer Davis and her parents were being truthful. See State v. Oliver, 188 Ga. App. 47, 50 (2) (372 SE2d 256) (1988); Smith v. State, supra at 138 (2). This testimony was admitted without objection, precluding appellate review of its admissibility. E.g., Sisson v. State, 141 Ga. App. 559 (1) (234 SE2d 146) (1977).

Decided February 11, 1991

Rehearing denied March 28, 1991

Bentley C. Adams III, for appellant.

W. Fletcher Sams, District Attorney, J. David Fowler, William T. McBroom III, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope and Andrews, JJ., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A90A1749.
    BARTON v. THE STATE.
    (405 SE2d 92)
   Pope, Judge.

Defendant Thomas Glenn Barton was convicted of aggravated sodomy and appeals. We affirm.

1. In his first three enumerations of error defendant challenges the sufficiency of the evidence and the denial of his motions for directed verdict on the basis that the statute of limitation had run prior to his indictment.

Pursuant to OCGA § 16-6-2 (b) a person convicted of aggravated sodomy “shall be punished by imprisonment for life or by imprisonment for not less than one nor more than 20 years.” OCGA § 17-3-1 (b) provides, inter alia, that prosecution for crimes punishable by life imprisonment must be commenced within seven years after the commission of the crime. The defendant here was indicted on June 21, 1989; thus in order to be within the applicable limitation period the crime charged must have occurred within seven years of that date.

The victim in this case, who was born on July 24, 1973, testified that the defendant began kissing her when she was seven years old, fondling her and touching her genitals when she was seven or eight years old and inserting his penis in her rectum when she was eight or nine years old. The victim further testified this activity ceased when she was around ten years old. Although the victim testified on cross-examination that she was not certain when the crime last occurred, she reiterated her belief that she was around nine or ten years old at that time. In her statement to investigating authorities, which was admitted at trial, the victim stated the defendant stopped sodomizing her when she was “about nine.” The victim celebrated her ninth birthday on July 24, 1982. “The date of the offense need not be proved with preciseness, but only that it occurred during the period of limitation.” (Citations and punctuation omitted.) Peavy v. State, 179 Ga. App. 397 (1) (346 SE2d 584) (1986). We find the evidence here, including the testimony of the victim, was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that the crime for which defendant was convicted occurred within the applicable statute of limitation. See Peavy v. State, supra. See generally Hodges v. State, 194 Ga. App. 837 (1) (392 SE2d 262) (1990); Johns v. State, 181 Ga. App. 510 (1) (352 SE2d 826) (1987).

Decided March 14, 1991

Rehearing denied March 28, 1991

William V. Hall, Jr., for appellant.

Thomas C. Lawler III, District Attorney, Donald L. Johstono, Jr., Debra K. Turner, Assistant District Attorneys, for appellee.

2. In his fourth and fifth enumerations of error defendant objects to the admission of certain testimony on the basis that it was irrelevant, immaterial and prejudicial. “ ‘It has been repeatedly held by the Supreme Court and this court that an objection that evidence is irrelevant and immaterial is insufficient to show reversible error. (Cits.)’ [Cit.]” Singletary v. State, 194 Ga. App. 266 (2) (390 SE2d 611) (1990). Accord Brinson v. State, 191 Ga. App. 151 (2) (381 SE2d 292) (1989).

3. Lastly defendant contends the trial court erred in allowing the admission of the victim’s statement because the “State . . . failed and refused to furnish the document to [defendant] prior to trial in response to his motion in conformity with OCGA § 17-7-211 and Brady v. Maryland, [373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963)].” However, contrary to defendant’s assertion, no such motion is contained in the record on appeal. “We will not presume error from a silent record. The defendant has the burden of showing error affirmatively by the record and this burden is not discharged by recitations in the brief.” (Punctuation and citation omitted.) Blane v. State, 195 Ga. App. 504, 505 (2) (393 SE2d 759) (1990). Accord In re Holly, 188 Ga. App. 202, 203 (372 SE2d 479) (1988). Moreover, we need not consider defendant’s argument that admission of the statement constitutes impermissible bolstering as “ ‘an enumeration (of error) may not be enlarged by the brief on appeal to cover a ground not contained in the enumeration. (Cit.)’ [Cit.]” Scott v. State, 193 Ga. App. 577, 579 (3) (388 SE2d 416) (1989). The argument is meritless, anyway. Kelly v. State, 197 Ga. App. 811 (2) (399 SE2d 568) (1990).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A90A1768.
    ALLEN v. THE STATE.
    (405 SE2d 94)
   Pope, Judge.

Defendant Gene Allen was convicted of the burglary of a residence in Bryan County. Defendant’s accomplice, who pleaded guilty to the charge against him, testified that defendant came up with the idea to burglarize the residence in question as the two men sat around drinking beer on the morning of the burglary. Defendant told the accomplice he had performed contracting work at the home and knew that the owner had a collection of knives and guns. The accomplice drove the defendant to the residence. If the owners were at home, defendant planned to ask for work. Defendant went to the front door and informed the accomplice that the door was unlocked. Defendant instructed the accomplice to search the upstairs while defendant kept a lookout. The accomplice testified he was in the house for approximately 30 minutes and when he came out to place the items he had taken into his truck, defendant was gone.

The accomplice drove away and was stopped by a deputy sheriff a short distance from the burglarized house. Some, but not all, of the property stolen from the house was recovered in the accomplice’s truck, on his person or in the back seat of the patrol car in which he was transported. A videotape recorder and movie camera were found in the truck but the accomplice does not remember taking them from the residence. A set of keys to the house was also found under the seat of the accomplice’s truck, but he denied knowledge of how they got there. Investigators found no sign of forced entry to the house.

The owner testified that defendant had worked at his house as a paint contractor prior to the burglary. He discussed with defendant his collection of guns and knives and left defendant and another painter alone in the house to do their work. The owner stated that the set of house keys discovered in the accomplice’s truck had been placed in a kitchen drawer just prior to the time defendant came to paint. According to the owner, the house was locked on the morning of the burglary.

A sheriff’s deputy testified that about two months after the burglary, after defendant had been arrested pursuant to a warrant and released on bond, the defendant contacted him and indicated he wanted to make a statement. At the sheriff’s office, after defendant had been duly instructed of his right to remain silent, the defendant admitted he had been at the house on the morning of the burglary but denied participating in the burglary. He also admitted he had performed contracting work at the house prior to the burglary. According to defendant, the accomplice drove him to the house to ask for work and the accomplice, but not defendant, entered the house. Defendant said he became scared and left the scene.

1. In his first three enumerations of error defendant argues the trial court erred in entering judgment on the guilty verdict on the general grounds. We disagree and hold that the testimony of the accomplice, supported by circumstantial evidence, is sufficient to support a finding of guilty beyond a reasonable doubt.

2. In his fourth and seventh enumerations of error defendant argues his conviction must be reversed because the only evidence presented against him was the uncorroborated testimony of the accomplice. We disagree with defendant’s contention that the accomplice’s testimony was uncorroborated. Defendant admitted being present at the scene of the crime. Defendant knew of the valuable items in the house. He had access to the house keys which were recovered in his accomplice’s vehicle. Although the accomplice was apprehended immediately after the burglary and he had no opportunity to dispose of the stolen property, not all the property was recovered from the accomplice. Conversely, stolen property was found in the truck which the accomplice, who otherwise confessed to the crime, did not remember taking. This circumstantial evidence served to corroborate the accomplice’s testimony. “[T]he corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. ‘Slight evidence from an extraneous source identifying the accused as a participant in the criminal act will be sufficient corroboration of the accomplice to support a verdict.’ ” (Citation and indention omitted.) Smith v. State, 238 Ga. 640, 641-642 (235 SE2d 17) (1977). See also Whitfield v. State, 159 Ga. App. 398 (6) (283 SE2d 627) (1981).

3. In his fifth and eighth enumerations of error defendant argues the trial court erred in admitting testimony concerning the statement he made to the sheriff’s deputy on the ground that the State did not make a proper showing that defendant made the statement voluntarily. To the contrary, the testimony of the sheriff’s deputy showed defendant called the deputy and offered to make the statement and, before the statement was received, defendant was duly informed of his constitutional rights. A proper hearing was conducted on the admissibility of defendant’s statement in which the totality of the circumstances surrounding the statement showed it was made voluntarily. See Pierce v. State, 238 Ga. 126 (1) (231 SE2d 744) (1977).

4. We also reject defendant’s argument that the trial court failed to charge the jury correctly on the State’s burden to prove the defendant’s statement was made voluntarily. The charge relating to defendant’s statement covers three pages of the trial transcript and expressly states that the burden of proving the statement was voluntarily and willingly made is on the State. “[The trial court] correctly charged the law applicable to [defendant’s statements]. [Cit.] If the defendant had wished an elaboration of the charge actually given . . ., he should have submitted a timely written request.” Webb v. State, 73 Ga. App. 748, 749 (2) (38 SE2d 54) (1946).

5. In its instructions on circumstantial evidence the trial court gave almost the precise language of OCGA § 24-4-6. Thus, the instructions were not in error. Although it would not have been error for the trial court to give an instruction even more favorable to the defendant, to the effect that when circumstantial evidence supports both a theory of guilt and a theory of innocence the law compels the acceptance of the theory of innocence, see Price v. State, 180 Ga. App. 215 (2) (348 SE2d 740) (1986), it cannot be said the trial counsel’s failure to request such an instruction shows defendant was denied effective assistance of counsel. The charge as given was a correct statement of the law.

6. On motion for new trial defendant, represented by appointed counsel other than the attorney who represented him at trial, asserted that he was denied effective assistance of trial counsel. The only ground defendant set forth in his written motion as to this assertion was trial counsel’s failure to request a special instruction on circumstantial evidence, which we held in Division 5 of this opinion was not a denial of effective assistance of counsel. At the hearing on the motion, however, defendant also argued he was denied effective assistance of counsel by trial counsel’s failure to call defendant as a witness and failure to call other potential witnesses identified by defendant. We have reviewed the testimony of defendant’s trial counsel at the hearing on the motion for new trial and we hold that his decisions on these matters were part of a reasonable trial strategy and did not amount to a denial of effective assistance of counsel. See Austin v. Carter, 248 Ga. 775 (2c) (285 SE2d 542) (1982).

Defendant also raised for the first time at the hearing on his motion for new trial the assertion that he was denied his constitutional right to be present during jury selection by trial counsel’s failure to notify him of the date of jury selection. The record shows trial counsel notified defendant by letter of four possible dates on which the court would conduct jury selection for his trial and advised him to be available. According to defendant, he telephoned counsel in response to the letter, informed him he wished to be present for jury selection and asked the attorney to notify him of the date and time. The jury was selected either January 8 or 9, 1990, but defendant heard nothing further from his attorney until after the jury had been selected and the attorney notified him of the date of trial.

The defendant’s right to be present at every stage of the trial extends to the selection of the jury. Fictum v. State, 188 Ga. App. 348 (2c) (373 SE2d 54) (1988). The right may be waived by the attorney only in defendant’s presence or by defendant’s express authority, or if the defendant subsequently acquiesces to counsel’s waiver. Wilson v. State, 212 Ga. 73, 78 (90 SE2d 557) (1955). The record does not contain a transcript of the jury selection proceeding, but defendant testified he did not authorize his attorney to waive his presence at the jury selection. The issue presented here is whether defendant subsequently acquiesced to his attorney’s apparent waiver of his presence at jury selection.

Decided March 14, 1991

Rehearing denied March 28, 1991

Ray C. Smith, for appellant.

Dupont K. Cheney, District Attorney, Lisa M. Young, Assistant District Attorney, for appellee.

The record shows trial counsel informed defendant of his right to be present at jury selection. According to an affidavit submitted by the trial attorney, defendant met with him prior to trial to discuss the jury which had been empanelled and, even though defendant had earlier been informed of his right to be present at jury selection, he voiced no complaint about picking the jury in his absence. Because evidence was presented which would support a finding that defendant acquiesced to his attorney’s choosing a jury in his absence, the denial of the motion for new trial should not be disturbed. See Dudley v. State, 148 Ga. App. 560 (5) (251 SE2d 815) (1978).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Carley, Judge. Sognier, Chief Judge,

text:
    A90A1845.
    ROBINSON v. THE STATE.
    (405 SE2d 101)
   Carley, Judge.

Appellant was tried before a jury and found guilty of two counts of armed robbery. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

The sole enumeration of error relates to the failure of the trial court to give appellant’s requested charge based on OCGA § 24-4-6. He relies upon Horne v. State, 93 Ga. App. 345, 346 (4) (91 SE2d 824) (1956) and its progeny, which stand for the proposition that if a jury could find that the witnesses offering the direct evidence against a defendant were impeached, so that any conviction would then necessarily have to rest upon circumstantial evidence, the jury should be instructed in accordance with OCGA § 24-4-6. However, in this case, the only evidence that could possibly be classified as “circumstantial” was evidence that the appellant owned a jacket similar to one worn by the perpetrator and that the appellant was at home on the day of the crime and, thus, could have committed the offense. While such evidence may be considered to be “circumstantial,” it certainly would not be sufficient, in and of itself, to authorize a conviction. “The necessity of the charge on circumstantial evidence in Horne v. State, supra . . ., arose because if the jury in that case found the witness[es] offering the direct evidence to have been impeached, the jury was left to decide the defendant’s guilt or innocence entirely from circumstantial evidence without any instruction upon the law of circumstantial evidence. In the case sub judice the [S]tate’s case is predicated entirely upon the direct evidence offered by the [victims]. If the jury determines [these witnesses were] impeached, then there would be no other evidence authorizing a verdict of guilty. Therefore, in this case there is no issue requiring the charge on the law of circumstantial evidence.” (Emphasis supplied.) Mayfield v. State, 153 Ga. App. 459, 460-461 (3) (265 SE2d 366) (1980).

Appellant apparently loses sight of the fact that the charge that he requested provides that “to warrant a conviction on circumstantial evidence alone, the proven facts must not only be consistent with the theory of guilt, but must exclude every other reasonable theory other than the guilt of the accused.” (Emphasis supplied.) It clearly is not reversible error to fail to give this charge in a case, such as this, where the circumstantial evidence alone would not warrant a conviction, but would, in fact, mandate a reversal on the general grounds. The “circumstantial evidence” in the instant case was, at most, corroborative of the victims’ direct eyewitness testimony and is not otherwise relevant to appellant’s guilt. Since appellant’s conviction is dependent entirely upon the victims’ eyewitness testimony and a charge on impeachment was given, the jury in the instant case was not left to decide appellant’s guilt or innocence entirely from circumstantial evidence because there was no circumstantial evidence which, standing alone, would authorize his conviction. It follows that the trial court did not err in failing to give appellant’s requested charge.

Judgment affirmed.

McMurray, P. J., Banke, P. J., and Pope, J., concur. Beasley and Andrews, JJ., concur in judgment only. Sognier, C. J., Birdsong, P. J., and Cooper, J., dissent.

Sognier, Chief Judge,

dissenting.

I must respectfully dissent because I believe appellant was entitled to have the requested charge given.

Appellant’s sole defense was misidentification, and on cross-examination he elicited several inconsistent statements from the victims: one victim testified in a conflicting matter about whether the gunman was wearing a hat, saying at various times during cross-examination both that appellant was not wearing a hat and that he may have been wearing a hat; the other testified on direct examination that he had never seen appellant prior to the robbery, but admitted on cross-examination that at the preliminary hearing he testified that he had seen appellant on two occasions prior to the robbery. There were other minor inconsistencies in the victims’ testimony as well.

Although the trial judge defined circumstantial evidence in her charge, she refused to give appellant’s requested charge. In my view (as in the trial court’s), it was a jury question whether the victims had been impeached, and their testimony provided the only direct evidence in the case. Consequently, the failure to charge on circumstantial evidence was reversible error under the authority of Horne v. State, 93 Ga. App. 345, 346 (4) (91 SE2d 824) (1956). See also Green v. State, 167 Ga. App. 548, 549 (1) (306 SE2d 354) (1983); Gibson v. State, 150 Ga. App. 718, 719 (6) (258 SE2d 537) (1979). “These cases express a policy to avoid permitting the jury to determine a defendant’s guilt or innocence entirely from circumstantial evidence [where the witnesses providing the direct evidence have been impeached] without any instruction on the law of circumstantial evidence.” Green, supra.

The question of whether, under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), a conviction was authorized upon the circumstantial evidence presented in this case is not at issue here. The issue is rather whether the jury actually based its verdict of guilty on that evidence. I believe that it is possible they did, because the cumulative effect of all the circumstantial evidence could have resulted, by itself, in a conviction, whether authorized or not.

The circumstantial evidence that appellant owned a bright red Hawks jacket identical to the one the victims identified as the one worn by the robber was stressed to the jury in closing argument. The State also relied heavily on the fact that when appellant was arrested he removed the jacket before facing the victims. In addition, there was circumstantial evidence indicating that appellant was at home on the day of the robbery, and although appellant claimed he was recuperating from a back injury incurred when he was robbed, he had not reported that robbery to the police or seen a doctor for the injury. In my view, collectively, this circumstantial evidence may well have persuaded the jury to convict appellant even if it believed the victims had been impeached and did not believe the direct identification evidence. Thus, the fact that a reversal on the general grounds might be indicated leads inexorably to the conclusion that failure to give the requested charge was, indeed, harmful and reversible error. I must point out also that the fact that circumstantial evidence was presented distinguishes this case from Mayfield v. State, 153 Ga. App. 459, 460-461 (265 SE2d 366) (1980) relied on by the majority. I would reverse this conviction and order a new trial.

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

Decided March 15, 1991

Rehearing denied March 28, 1991

Kenneth D. Kondritzer, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, for appellee.


text:
    A90A1870.
    PIRKLE v. HAWLEY et al.
    (405 SE2d 71)
   Beasley, Judge.

Plaintiff Pirkle appeals a judgment entered upon a jury verdict for defendant Gwinnett Daily News (a partnership) and against defendant Hawley for $50,000. She was injured on December 20, 1987, when her car was struck by an automobile driven by Hawley, who was intoxicated. Pirkle sued Hawley based upon his direct acts of negligence and sought recovery against the News for furnishing alcoholic beverages to a noticeably intoxicated person, knowing that person would soon be driving a vehicle, and for failing to take proper steps to prevent Hawley from driving after awareness of his intoxication.

The following appears from that version of the facts favorable to the verdict. The Advertising and Promotions Department of the Gwinnett Daily News planned a Christmas party for its employees, about 35 in number. The News subsidized the party in the amount of $350, about half the total expenses. The party was set for Sunday, December 20, and Bob Gruber, the retail sales manager, was delegated responsibility for it. He spent the money on room rental at the B&B Ranch on Old Peachtree Road, a keg of beer, food, and party supplies. He sent an invitation requesting that women bring a covered dish and men a quart of liquor. Attendance was optional and spouses or dates were included. Gruber was aided in facilitating the party by Sam Knox, an employee in the News’ advertising department.

During the party preliminaries, Gruber and Sam Knox discussed how they would handle anyone who got drunk. They decided to be on the lookout and to use common sense in managing any situations which arose. The party was scheduled to begin at 3:30 p.m. Around that time, Hawley, a News employee, arrived driving his own car and drinking his own beer. Over the next few hours he consumed ten to twelve 16-ounce cups of beer. Witnesses who attended the party agreed that he became noticeably intoxicated but gave varying times when this occurred. Knox noticed that Hawley was too intoxicated to drive at around 6:30 p.m. and brought this to Gruber’s attention. Having discovered another drinking problem, Gruber decided to take responsibility for the other person, so Sam Knox and his wife Patricia sought out Hawley and attempted to convince him to let them take him home. At first he declined. They finally prevailed upon him to let Sam drive him home in Hawley’s auto and Patricia follow in the Knox car. Because the Knoxes needed to help with the clean-up, they asked Hawley to wait. He remained in that area, usually seated, while they finished their chores. When Sam asked Hawley directions to his home and Hawley responded only incoherently, Sam went to ask Gru-ber for directions. When they returned, Hawley had left. They went outside and saw the taillights of the Hawley vehicle as it pulled from the driveway out onto Old Peachtree Road. They discussed what to do but took no further action.

Drinking his own beer and driving erratically and rapidly, Hawley collided with the rear of Pirkle’s auto on 1-85. His car flipped over several times and he was thrown from it. Pirkle’s car spun across the road and hit a guard rail on the driver’s side. Other vehicles were also involved.

Pirkle was treated at the scene by paramedic Adcock and transported to Gwinnett Medical Center. She was admitted for injuries which included a dislocated kneecap, a fractured wrist, lacerations and bruises. Besides asking damages for those injuries, Pirkle also sought to recover for a closed head injury which she asserted resulted in losses of IQ, abstract reasoning ability and short-term memory. She supported her contentions with her testimony, the testimony of a friend, her mother and an expert. The expert’s opinion was that she lost 16 IQ points and suffered from reasoning ability and short-term memory loss.

Two truck drivers who stopped at the scene testified that Pirkle was wedged down in her car, moaning, and that she appeared dazed but was able to respond to questions. Paramedic Adcock, when he first arrived, found her conscious and able to respond to questions but confused. According to Adcock, Pirkle was not sure whether she had lost consciousness. He found no evidence that her airway had been obstructed. Pirkle told the nurse at the hospital that she had not lost consciousness. The emergency physician did not treat her for a closed head injury because after standard medical examination there were no indications she had one.

Defendants, in an effort to show at trial that any brain damage to Pirkle was not the sole result of injuries sustained in the collision, introduced evidence that Pirkle had a past history of drinking and drug use. She admitted she had a problem about nine years before. As further proof of other causes of any brain damage, defendants showed that she suffered from depression and other emotional factors resulting from her involvement in a 1967 serious wreck, and that she had a series of unsatisfactory relationships with alcoholic or drug-addicted men.

There are 14 enumerations, of error.

1. Enumerations one and two assert error in the failure to grant Pirkle’s motions for directed verdict, judgment n.o.v. and new trial. They all assert that the evidence demanded a finding for her against the News on the issue of liability, in that the evidence shows Hawley was intoxicated at the party, that those representing the News became aware of his condition, and that they failed to preclude further drinking. Thus, she argues that regardless of any efforts made to keep Hawley from driving, the News was liable as a matter of law.

Because enumeration four challenges the trial court’s charge on this issue, its resolution governs enumerations one and two.

The court instructed the jury that the alcohol provider first has a legal duty not to furnish alcohol to a noticeably intoxicated person knowing that person is soon to drive, and if that duty is breached, the provider has a duty “to exercise ordinary care to prevent an unreasonable risk of harm to the public highway users from the intoxicated driver.” It was defendant News’ request five verbatim. A little later the court reiterated: “If alcohol is furnished to a noticeably intoxicated person that (sic) is known to soon be driving a vehicle, then and in that event the provider has the duty of exercising ordinary care to prevent an unreasonable risk of harm to public highway users from the intoxicated driver.”

When offered an opportunity to voice objection, which was done after the charge was given, Pirkle’s counsel stated: “I object to . . . charge . . . number five of defendant News Company. I believe two things. One is when you said in other words, you repeated and emphasized something I think that was detrimental.” The court interjected, “It didn’t help your case, did it?” Counsel acknowledged, “no, it didn’t,” and moved on to: “Secondly, I don’t believe ordinary care is the standard. I believe that is too low of a standard.” The court stated: “You don’t have to argue it right now because I am not going to change it,” to which counsel replied, “all right.” At the charge conference, counsel had objected to defendant’s charge five but, without hearing the reasons, the court said the objections could be made after charge was given.

The “in other words” objection related to a restating of the initial duty, imposed by OCGA § 3-3-22, Sutter v. Hutchings, 254 Ga. 194 (327 SE2d 716) (1985); Southern Bell Tel. &c. Co. v. Altman, 183 Ga. App. 611 (359 SE2d 385) (1987); and Divecchio v. Mead Corp., 184 Ga. App. 447 (1) (361 SE2d 850) (1987). Repeating a legal principle in other language so as. to clarify it for the jury is not error. Jackson v. Rodriquez, 173 Ga. App. 211, 213 (2) (325 SE2d 857) (1984); Dixie Mfg. Co. v. Riggs, 30 Ga. App. 433, 434 (4) (118 SE 452) (1923).

Appellant argues that request five as given was a misstatement of the law because breaching the initial duty may not be defended by proving that a subsequent duty was fulfilled. Assuming arguendo that this was properly raised below, it fails on the merits. It is not that the fulfillment of the duty which follows breach of the statutorily-based duty excuses the breach. Quite the contrary. The breach gives rise to the subsequent duty, a duty which does not even exist if the law against furnishing is complied with.

If the alcohol provider stops serving a noticeably intoxicated person, he is not liable for the damages that person later inflicts. If the alcohol provider continues to serve and knows the intoxicated person is about to drive, the provider creates for himself or herself “a duty not to subject third parties to an unreasonable risk of harm caused by the intoxicated driver.” Southern Bell, supra at 612 (2), citing Sutter, supra. Fulfillment of the additional duty acts to remove the breach of the earlier, initial duty as the proximate cause of the injury.

Pirkle next argues that even if fulfillment of the subsequent duty can give escape from liability, the standard of ordinary care is too low. According to Pirkle, the breaching provider’s reacting by taking “reasonable measures” to prevent the intoxicated person from driving is not sufficient, because the circumstance which placed on defendant the duty to react was a breach of legal duty on his part in the first place. Thus, the argument projects, the standard should be higher.

This fleshes out the objection made in the trial court. It is not persuasive because the controlling cases, which have been cited above, do not establish or refer to any standard other than, inferentially, the standard of ordinary care. For example, Southern Bell, supra at 612 (2), which focused on the subsequent duty, states: “The provider has a duty not to subject third parties to an unreasonable risk of harm caused by the intoxicated driver.” Sutter, supra at 196-197, speaks of a duty “to conform to a certain standard of conduct, for the protection of others against unreasonable risks,” without identifying any special standard in the circumstances of that case. See also Whelchel v. Laing Properties, 190 Ga. App. 182, 183-184 (1) (378 SE2d 478) (1989), and the other cases cited therein.

The trial court’s instruction was not subject to the objections urged against it.

The next concern is sufficiency of the evidence. The law regarding purveyors of alcoholic beverages applies to social hosts’ furnishing alcohol to their adult guests. See Tibbs v. Studebaker’s of Savannah, 184 Ga. App. 642, 644 (362 SE2d 377) (1987); Studebaker’s of Savannah v. Tibbs, 195 Ga. App. 142 (392 SE2d 908) (1990). A commercial establishment can stop serving its customer when it becomes aware that the customer is noticeably intoxicated. The remedy is not available to the social host who is conducting a party with a “serve yourself” bar. Our appellate courts have not adjudicated what type of restraint a social host is justified in using to prevent further imbibing by a guest. An even more serious question is presented when the guest announces or evinces an intention to drive home. What then must the social host do? Is physical force acceptable? At what point might it become false imprisonment? Numerous questions have not been legally resolved.

Nevertheless, Georgia has determined that a social host may be liable to third persons for furnishing alcohol to a guest and that the social host must take some action to prevent the guest from driving once he or she is discovered to be intoxicated. Whelchel, supra; Tibbs II, supra at 144, (2); Altman, supra. See Sutter, supra. Compare King Cotton v. Powers, 190 Ga. App. 845, 851 (380 SE2d 481) (1989). Given the facts presented here, liability was a jury question rather than a matter of law. Did those who were acting for the News, do what a reasonable person would have done to prevent harm to third persons who might be injured by the prospective drunken driver? The jury was the proper responder, and the evidence was sufficient to sustain the verdict.

2. Enumeration three complains of the failure to give six written requested instructions. Each enumeration may contain only one alleged error. See MacDonald v. MacDonald, 156 Ga. App. 565, 566 (1a) (275 SE2d 142) (1980). In that respect the enumeration is deficient.

Other defects appear. The objection made regarding the requests was that the trial court omitted written request numbers 35, 36, 37, 38, 39 and 52. Pirkle’s requests are not numbered as set forth in the record. Interpolating the 86 requests with their place in the record, it appears that Pirkle complains on appeal of the failure to charge numbers 23, 43, 55 and 56 instead of 35, 36, 39 and 52. None of these requests need be considered. Nolen v. Murray Indus., 165 Ga. App. 785, 787 (5) (302 SE2d 689) (1983).

Request 38 states in part: “a cause of action lies where one provides alcoholic beverages to a noticeably adult whom he knows will be driving a motor vehicle.” The word “intoxicated” was left out. A request to charge must be perfect in form, Evans v. Caldwell, 52 Ga. App. 475, 486 (5) (184 SE 440) (1935), and 38 is not. As to request 37, its substance was given in charge and no error is presented by its omission. Fidelity Nat. Bank v. Kneller, 194 Ga. App. 55, 62 (3e) (390 SE2d 55) (1989).

3. Enumeration five focuses on alleged error by charging comparative negligence and apportionment of damages and in submitting two different verdict forms for consideration. At trial, counsel objected to the verdict forms on the basis that apportionment should not have been included but did not indicate why. He also objected to the charge on apportionment without stating a basis.

While Christiansen v. Robertson, 237 Ga. 711 (229 SE2d 472) (1976), relaxed the rules regarding the necessity for specific objection, it did not dispense with the need for an objection entirely. See F. A. F. Motor Cars v. Childers, 181 Ga. App. 821, 822 (2) (354 SE2d 6) (1987); Stearns v. Thomas, 192 Ga. App. 395, 396 (384 SE2d 672) (1989).

Besides, the instruction is not erroneous. It did not address comparative negligence but only the principles of OCGA § 51-12-33 (a), which states: “Where an action is brought against more than one person for injury to person or property and the plaintiff is himself to some degree responsible for the injury or damages claimed, the trier of fact . . . may apportion its award of damages among the persons who are liable.” There was evidence, although slight, which tended to show that Pirkle was at least partly responsible for any brain injury she might have incurred. A charge on an issue may be sustained if there is any evidence to warrant it. Harper v. Hall, 76 Ga. App. 441 (2) (46 SE2d 201) (1948); Bowie Martin v. Dews, 73 Ga. App. 73, 76 (1) (35 SE2d 577) (1945).

Finally, the jury did not apportion damages. Appellant has failed to show harm by the instructions or the two verdict forms.

4. Enumeration six asserts that certain requested instructions on general damages should have been given. The failure to object at trial precludes assignment of error except as provided by OCGA § 5-5-24 (c), which does not obtain. American Family Life Assur. Co. v. Queen, 171 Ga. App. 870, 875 (11) (321 SE2d 750) (1984); DeVane v. Smith, 154 Ga. App. 442, 445 (3) (268 SE2d 711) (1980).

5. Refusal to permit Pirkle to introduce evidence of aggravating circumstances is enumeration seven. See OCGA § 51-12-5.1. The parts referenced to the transcript indicate no showing of what Pirkle intended to prove. The court invited such a proffer. Plaintiff’s failure is fatal to the enumeration. See Thompson v. Hill, 143 Ga. App. 272, 274 (2) (238 SE2d 271) (1977); Worn v. Warren, 191 Ga. App. 448, 449 (2) (382 SE2d 112) (1989); McKee v. Hurst & Co., 21 Ga. App. 571 (1) (94 SE 886) (1918).

6. Enumeration eight addresses the failure to give a requested charge on the issue of punitive damages. Since no objection was made during trial, the omission will not be reviewed. Turner v. Taylor, 179 Ga. App. 574, 575 (3) (346 SE2d 920) (1986).

7. Enumeration nine complains of the failure to permit counsel to cross-examine four witnesses under the provisions of OCGA § 24-9-81. One was Patricia Knox, wife of an employee of defendant News but never an employee herself; two were former employees but otherwise employed at trial time. The witness must be an agent at the time of trial; it is not sufficient to have been an agent at the time of the occurrence. Mullis v. Chaika, 118 Ga. App. 11 (2) (162 SE2d 448) (1968); Massey Jr. College v. Taggart, 140 Ga. App. 591 (1) (231 SE2d 540) (1976).

The fourth witness was still employed by defendant News. It was announced that he was being called for cross-examination, but a direct examination was conducted. Nevertheless, Pirkle fails to demonstrate any harm from inability to fully exercise her right under the code. Ingram v. Peterson, 196 Ga. App. 888, 890 (6) (397 SE2d 141) (1990); Atlanta Americana Motor Hotel Corp. v. Sika Chem. Corp., 117 Ga. App. 707, 711 (4) (161 SE2d 342) (1968).

8. Enumeration ten points to the exclusion of an investigating officer’s report containing hearsay information that he was told by others that Pirkle had stopped breathing. OCGA § 24-3-4 provides an exception for statements made for purposes of medical diagnosis or treatment. It refers only to statements made by or on behalf of the patient when seeking medical aid. It does not even cover statements of medical opinion made by one physician to another, Dunn v. McIntyre, 146 Ga. App. 362, 363 (2) (246 SE2d 398) (1978), much less a second-hand recitation of what the witness was told by another person concerning the injured plaintiff’s condition.

9. Enumeration 11 focuses on the trial court’s requiring Pirkle to remain in the courtroom during the trial. Masonry Standards v. UPS Truck Leasing, 257 Ga. 743 (363 SE2d 553) (1988), held that the trial court lacked authority to impose sanctions for a defendant’s failure to appear at trial.

Pirkle was only required to be present during the voir dire so that the jurors could be questioned as to whether they recognized or were acquainted with her. The court stated it would take requests to be excused “from time to time” as they arose. Other than that, Pirkle does not show she was forced to remain when she desired to leave or that any of her requests to leave were denied.

Trial courts are invested with a wide discretion in regulating and controlling the business of the court. It will not be interfered with unless it appears that wrong or oppression resulted. Atlanta Newspapers v. Grimes, 216 Ga. 74, 79 (5) (114 SE2d 421) (1960); Scocca v. Wilt, 243 Ga. 2, 3 (252 SE2d 401) (1979). There is no showing of abuse. Chapman v. Avco Fin. Svcs., 193 Ga. App. 147 (1) (387 SE2d 391) (1989).

10. Enumeration 12 relates to Pirkle’s motion in limine to prevent evidence of her alcohol and drug use nine to ten years before the automobile wreck. The trial court responded: “if you have got some objections bring them up at the time.” This does not amount to an overruling of the motion. Morris v. Southern Bell Tel. &c. Co., 180 Ga. App. 145 (1) (348 SE2d 573) (1986) controls. It held that the court had discretion to reserve ruling on a motion in limine, which it exercised by stating that appellant would have to object to the evidence as it was offered. Pirkle did not invoke a further ruling. See also Stacey v. Caldwell, 186 Ga. App. 293 (1) (367 SE2d 73) (1988); Hicks v. State, 175 Ga. App. 243 (1) (333 SE2d 113) (1985).

Decided March 6, 1991

Rehearing denied March 28, 1991

Goodman & Bush, James E. Goodman, Norman Lee Smith, for appellant.

Murray, Temple & Dinges, William D. Temple, Jeffrey P. Raasch, Daniel MacDougald III, for appellees.

11. Enumerations 13 and 14 contend that plaintiff was entitled, as a matter of law, to recover damages from defendant Hawley for abusive litigation under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), and also for stubborn litigiousness under OCGA § 13-6-11. By agreement of the parties these issues were decided by the trial court, which determined there was inadequate basis for either. The evidence did not demand a contrary finding. Biosphere Indus. v. Oxford Chemicals, 190 Ga. App. 613 (379 SE2d 555) (1989); Bouchard v. Fowler, 193 Ga. App. 697 (388 SE2d 874) (1989); General Refractories Co. v. Rogers, 240 Ga. 228, 235 (2) (239 SE2d 795) (1977).

Judgment affirmed.

Pope and Andrews, JJ., concur.

       It is notable that by pleadings and assertions during pretrial, one of Pirkle’s principal contentions was that defendant News failed to exercise the requisite care or acted negligently after discovering Hawley was intoxicated.


text:
    A90A1902.
    SMITH v. THE STATE.
    (405 SE2d 78)
   Beasley, Judge.

For acts committed against his 11 and 12-year-old sons, Smith was convicted of two counts of cruelty to children, two counts of child molestation, and two counts of aggravated child molestation. The boys were ages 15 and 16 at trial.

Both victims attended the same school in the fall of 1984 and on occasion came with unexplained injuries. On November 19, 1984, Seth, the younger, had a bloodshot eye, a bruised face and a brace or bandage on his left hand. Paul had bruises on his left leg.

Seth’s teacher summoned the principal, who asked him what had happened. He said a hammer had fallen on him. She called a social worker to interview him. He gave her the same answer.

The social worker called intake caseworker Sanders from the protective services division of the DeKalb County Department of Family & Children Services (DFCS), who investigates 40 to 50 complaints of child abuse each month. He talked to Seth and Paul at the school, using his usual method of sitting with the children for a few minutes in order to build a rapport and then beginning the interview by asking non-threatening questions which gradually provoke confidences. They related that their father had subjected them to physical abuse. Seth said his father had thrown him up against a wall, resulting in his left hand being broken, and on another occasion had hit him in the face, resulting in bruises to his right eye.

Sanders called the police to transport the children to the juvenile court, where a complaint alleging child abuse was filed. The boys were interviewed there by Sanders and Norwood, the supervisor of the juvenile court child deprivation department who interviews about 300 alleged child abuse and neglect victims each year.

Seth was quiet and fairly sedate. Paul was more forthcoming. The children first talked about physical injuries inflicted by their father. Both stated they were hit by him two or three times each week with various objects such as a belt, board, or hammer. After one episode, their mother had taken them to a shelter for battered women. Paul’s bruises on his left leg were caused by strikes with a hammer. Seth had been pushed into a wall, breaking his left hand. Photographs of their injuries were taken.

As the interview was concluding, Paul began to cry. He stated there was something else he needed to tell. He described 15 or 20 incidents of sexual abuse of him by his father, the latest of which was several days before the interview and the earliest when he was about age ten. Once in the spring of 1984, his father put a knife to his throat and threatened to kill him if he told his mother. His father also threatened to shoot him if he told anybody. Seth then described an act of sodomy with him, followed by a threat if he reported it.

Police officer Morris testified that he conducted an audiotaped interview of the children on November 21 at the children’s center, and he authenticated the tape, which was played to the jury. When he interviewed the children, he did not threaten them and they gave their statements freely and voluntarily. They were “[v]ery timid, very scared.” Afterwards he obtained warrants for their father’s arrest.

Appellant left the state and was not arrested until December 1988, when he visited the family and Seth rode his bicycle to the police station to inform of his father’s presence.

Seth was 15 years old at trial and testified to the incidents described in his out-of-court statements.

Paul was 16 years old at trial and testified that he did not want to testify, that he did not want to come to court, and that he was testifying because of subpoena. For the most part, he testified that he did not remember making statements about sexual abuse, although he did recall the statements in regard to physical abuse but not the specific acts.

1. Appellant contends that the children’s out-of-court statements to the three professionals constituted inadmissible hearsay because unreliable, and violated his Sixth Amendment right to confrontation. This argument has been rejected.

First there was no such objection to the testimony of DFCS and juvenile court personnel Sanders and Norwood. Thus there is no ruling to review, as objections were waived. Herrin v. State, 230 Ga. 476, 477 (1) (197 SE2d 734) (1973). Only the taped interview need be considered. Nevertheless, none violates the principles appellant espouses.

(a) In Cuzzort v. State, 254 Ga. 745 (334 SE2nd 661) (1985), the victim in a child molestation case had made an out-of-court statement to her mother which was consistent with the child’s testimony at trial. The child’s mother’s testimony was admitted over a hearsay objection. The Georgia Supreme Court held that the out-of-court statement was admissible because at trial the child was under oath and subject to cross-examination about her testimony and about her out-of-court statement. “The concerns of the rule against hearsay are satisfied.” Cuzzort, supra at 745.

Following Cuzzort, the Child Hearsay Statute, OCGA § 24-3-16, was enacted: “A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.”

In Reynolds v. State, 257 Ga. 725 (1) (363 SE2d 249) (1988), other witnesses testified to out-of-court statements by a child-molestation victim. The Court held: “As regards the hearsay objection, we find this testimony falls squarely within OCGA § 24-3-16 and the trial court did not err by allowing the statements. See Cuzzort v. State, [supra].” Appellant does not challenge the constitutionality of the statute, which was settled in Reynolds, supra at 726 (3).

(b) Appellant unavailingly asserts that the admission in evidence of the children’s out-of-court statements violated his federal confrontation rights, as this was rejected in Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987). The Court held that, to satisfy the right, and in conformity with the statute, the trial court should cause the alleged victim to take the stand and submit to examination or cross-examination by either party if requested. Here both victims testified, under oath.

(c) Appellant argues that his constitutional right of confrontation was violated because he was denied the opportunity to cross-examine the children at the time they made their out-of-court statements.

The appellant in Reynolds also argued that OCGA § 24-3-16 violated his right of confrontation under the State and Federal Constitutions because he was precluded from testing the veracity of the witness at the time the statements were originally made.

Meeting the same contention in Reynolds, supra, the Court held in Division 3 that the victim’s availability for cross-examination at trial satisfied the defendant’s right of confrontation under California v. Green, 399 U. S. 149 (90 SC 1930, 26 LE2d 489) (1970).

(d) Confrontation rights were also violated, appellant offers, because the children’s out-of-court statements were not mentioned in their testimony at trial. This argument was rejected in Division 4 of Reynolds, supra.

(e) Appellant argues that the children’s out-of-court statements should not have been admitted in evidence since they did testify. However, such is provided for by the Child Hearsay Statute, which appellant does not attack.

In addition, Newberry v. State, 184 Ga. App. 366, 357 (1) (361 SE2d 499) (1987), rejected the argument that under Ohio v. Roberts, 448 U. S. 56 (100 SC 2531, 65 LE2d 597) (1980), there must be a finding of “necessity” before the out-of-court statements of a child molestation victim are admitted under the statute. Newberry’s, and likewise Smith’s, reliance on Roberts was misplaced in that Roberts dealt with a situation in which the former testimony of an unavailable witness was admitted in a criminal trial.

Roberts was relied upon in Idaho v. Wright, _ U. S. _ (110 SC 3139, 111 LE2d 638) (1990), another case cited by appellant. It concerned the hearsay statements of a child molestation victim who was not available to testify at trial because she was not capable of communicating to the jury.

In Wright, the Court repeated that although “ ‘a literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable, this Court has rejected that view as “unintended and too extreme.” ’ ” Wright, 111 LE2d at 651, citing Bourjaily v. United States, 483 U. S. 171, 182 (107 SC 2775, 97 LE2d 144) (1987) (quoting Ohio v. Roberts, supra).

As recognized in Wright, Roberts provides the analytical framework for determining whether hearsay testimony of an unavailable witness is admissible. First, Roberts holds that the Confrontation Clause establishes a rule of “necessity” under which the prosecution must either produce the witness or demonstrate the witness’ unavailability. Second, Roberts holds that the hearsay statement of the unavailable witness must bear adequate “indicia of reliability” in order to be admitted in evidence. “Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. . . .” Wright, 111 LE2d at 652, citing Roberts, 448 U. S. at 66.

The Court in Wright applied a “totality of the circumstances surrounding the statement” rule to determine whether the hearsay statements of the unavailable child witness bore “particularized guarantees of trustworthiness” under the Confrontation Clause, rather than “imposing] a fixed set of procedural prerequisites to the admission of such statements at trial.” Wright, 111 LE2d at 654. In so holding, the Court rejected as too rigid the State Supreme Court’s conclusion that the child’s out-of-court statements did not bear sufficient indicia of reliability because the questioner “failed to record the interview on videotape, asked leading questions, and questioned the child with a preconceived idea of what she should be disclosing.” Id.

(f) In this context we consider appellant’s argument that the trial court erred in admitting the out-of-court statements of the children on grounds that these statements bore insufficient “indicia of reliability” and “particularized guarantees of trustworthiness” to support their admission in evidence. More specifically, appellant argues that the social workers and police conducted the interviews without adequate procedural safeguards, failed to videotape the interviews, asked leading questions, and had a preconceived idea of what the children should be disclosing.

First of all, in this case, as in Newberry v. State, supra at 357-358 (2), there was a proper foundation for the admission of the audiotape in accordance with the seven-part test contained in Brooks v. State, 141 Ga. App. 725, 734, (8) (234 SE2d 541) (1977). Secondly, the circumstances surrounding the children’s out-of-court statements provide sufficient indicia of reliability so as to authorize the trial court’s admission of these statements in evidence. See also Reynolds, supra at 725-726 (2).

“Unlike certain problems envisioned in Ohio v. Roberts, OCGA § 24-3-16 protects the defendant’s constitutional right of confrontation by affording defendant the dual protection of requiring both the availability of the witness and a sufficient indicia of reliability.” New-berry, supra at 357.

2. Appellant challenges the sufficiency of the evidence to support the verdicts, based on the arguments advanced by him in the preceding division of this opinion. Since we have rejected appellant’s preceding arguments, we reject the evidentiary challenge as well. The evidence meets the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope and Andrews, JJ., concur.

Decided March 6, 1991

Rehearing denied March 28, 1991

W. Michael Maloof, for appellant.

Robert E. Wilson, District Attorney, J. Thomas Morgan III, Desiree L. Sutton, Assistant District Attorneys, for appellee.


text:
    A90A2102.
    CORONET CARPETS v. REYNOLDS.
    (405 SE2d 103)
   Pope, Judge.

This appeal was brought by the employer from an order of the superior court affirming the award of attorney fees to the employee-claimant’s attorney by the State Board of Workers’ Compensation. The appeal to the superior court was filed March 8, 1990. The order affirming the award of the Board was entered May 30, 1990. It recites that a hearing on the appeal was held April 16, 1990. In addition to finding that the award is supported by the record, the superior court order also finds that the award of the Board must be affirmed by operation of law because no order dispositive of the matter was filed within 20 days of the date of the hearing.

Because the superior court order was not entered within 20 days from the date of the hearing on the appeal, we are constrained by the express terms of OCGA § 34-9-105 (b) to hold that the “order was a nullity and cannot serve as a basis for appeal to this court.” Synthetic Indus. v. Camp, 196 Ga. App. 637 (396 SE2d 518) (1990). Pursuant to said statute, if, as here, a workers’ compensation case on appeal to the superior court is heard within 60 days from the date the notice of appeal is filed but no order disposing of the matter is entered within 20 days of the date of the hearing, “the decision of the board shall be affirmed by operation of law.” The award of attorney fees by the board became final as a matter of law after 20 days from the date of the hearing. Because the application for appeal to this court was filed more than 30 days from the date the award became final, the appeal is untimely and must be dismissed.

This case points up a different aspect of “the inequity created by the Legislature’s enactment of the present version of OCGA § 34-9-105 (b)” in addition to that illustrated in the Synthetic Indus. case. Id. In an apparent effort to require the superior courts to act promptly on appeals from awards of the State Board of Workers’ Compensation, the Legislature, in OCGA § 34-9-105 (b), promulgated strict time requirements for hearing and ruling upon such appeals. While it is not within the power of an appellant to comply with these time requirements, it is the appellant who is penalized by a failure of the superior court to meet the requirements. As we noted earlier in the Synthetic Indus. opinion, “ [t] he statutory scheme imposes a burden on the appellant to assure that time limitations are met.” Id. Even if the appellant is diligent, however, in moving for a hearing date to meet the 60-day requirement imposed by statute for hearing an appeal, the appellant is powerless to force a superior court judge to issue an order within the 20-day requirement imposed for the disposition of the appeal once it has been heard. Nevertheless, “[t]he language of the statute is clear and this court is without power to avoid the ill-effect created by the statute as written.” Id. at 638.

Decided March 15, 1991

Rehearing denied March 28, 1991

McCamy, Phillips, Tuggle, Rollins & Fordham, James T. Ford-ham, for appellant.

William G. Boyd, for appellee.

Appeal dismissed.

Beasley and Andrews, JJ., concur.


author: McMurray Presiding Judge.

text:
    A90A2112.
    WAYNE COUNTY BOARD OF EDUCATION et al. v. TYRE et al.
    (404 SE2d 809)
   McMurray Presiding Judge.

Brint Tyre, by and through his parents as next friends, designating themselves and their son as plaintiffs, sued Wayne County Board of Education, Wayne County High School and a school official (defendants) and alleged that Brint Tyre is a student at Wayne County High School and that his due process rights were violated as a result of a three-day disciplinary suspension. Plaintiffs further alleged that they were damaged because Brint Tyre missed important school work during the three-day suspension and that defendants were “negligent” in “failing to allow an appeal.” Defendants denied the material allegations of the complaint and later filed a joint motion for summary judgment. Plaintiff Brint Tyre’s deposition was filed in support of the joint motion for summary judgment and evidence adduced therein and in supporting affidavits revealed the following:

On Saturday, October 15, 1988, plaintiff Brint Tyre was participating in an outdoor “marching competition” with the Wayne County High School marching band. Plaintiff and about 180 other1 members of the marching band were transported, via school bus, to the “marching competition.” The students were supervised by Wayne County High School teachers and the school’s band director.

After the band had completed its performance and while plaintiff Brint Tyre was standing with other band members and a color guard instructor for the band, he “slung” a large insect which had appeared on his hand. A fellow band member, Regina Lewis, retrieved the insect and exhibited it to plaintiff. Plaintiff “grabbed [Regina Lewis’] wrist and shook it and the insect fell.” Plaintiff then crushed the insect with his foot and the creature’s insides “splattered” in the direction of the color guard instructor and soiled instructor’s clothing (shoes and pants leg). The instructor ordered plaintiff to clean the creature’s body from her clothing. Plaintiff did not respond to the order. Instead, he turned away and ignored the instructor’s command. The band director then approached plaintiff and asked plaintiff if he was refusing to obey the instructor’s direct order. Plaintiff responded, “no, sir, I’m just not going to clean it up because it’s not my place.” The band director then made it clear to plaintiff that he would have to answer to the high school’s assistant principal on Monday morning when they returned to school, and that he would then be facing a disciplinary suspension for insubordination. (Plaintiff’s testimony is unclear regarding the band director’s statements on the night of the incident, but plaintiff affirmed that he was fully aware that he would be visiting the assistant principal on the charge of insubordination for disobeying the color guard instructor for the band.)

Plaintiff Brint Tyre was called to the assistant principal’s office on Monday morning. The assistant principal asked plaintiff if he had attended the “marching competition” on the previous Saturday evening. Plaintiff responded affirmatively. The assistant principal also asked plaintiff if he had crushed a bug while on the field trip. Plaintiff responded affirmatively. The assistant principal then asked plaintiff if he refused to obey the color guard instructor’s order to clean up the mess caused by plaintiff’s squashing of the bug. Plaintiff said that he did refuse to comply with the instructor’s directions. However, he did not then explain why he refused to obey the instructor’s orders. The assistant principal informed plaintiff that he had been insubordinate and that the punishment would be suspension from school for three days. Plaintiff asked the assistant principal to call his father. The assistant principal complied and informed plaintiff’s parents telephonieally that plaintiff was suspended from school for three days for disobeying the color guard instructor’s directions. Plaintiff complied with the three-day suspension and missed an important school test as a result of the suspension.

Defendants’ joint motion for summary judgment was denied and the trial court certified the order for interlocutory review. Defendants filed an application for review and we granted an appeal. Held:

1. Defendants first contend the trial court erred in denying their joint motion for summary judgment.

“Goss v. Lopez, 419 U. S. 565, 581 (95 SC 729, 42 LE2d 725) sets forth the principles relative to a student’s constitutional rights: ‘Students facing temporary suspension have interests qualifying for protection of the due process clause and due process requires, in connection with a suspension of ten days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. The clause requires at least these rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school.’ ” Dillard v. Fussell, 160 Ga. App. 382 (287 SE2d 96).

The undisputed circumstances of the case sub judice show that plaintiff Brint Tyre was afforded the minimum procedural requirements of Goss v. Lopez, supra. Plaintiff was made aware of the charges against him shortly after the incident which gave rise to his suspension and plaintiff was given an opportunity to answer the charge that he refused to obey an instructor’s order. This eliminated all genuine issues of material fact regarding plaintiffs’ claim that plaintiff Brint Tyre was not afforded procedural due process. Plaintiff Brint Tyre’s version of the incident which led to his suspension may be viewed as supporting plaintiffs’ claim that plaintiff Brint Tyre was treated unfairly by school officials, but it does not raise elements vital to plaintiffs’ cause of action. See Dillard v. Fussell, 160 Ga. App. 382, 383 supra. Consequently, the trial court erred in denying defendants’ motion for summary judgment.

2. Plaintiffs contend that plaintiff Brint Tyre was denied “due process protection at the school level...” because the administrative review procedures provided by OCGA §§ 20-2-753 and 20-2-754 were not implemented.

OCGA §§ 20-2-753 and 20-2-754 make provisions for disciplinary hearings before an authorized school official, panel or tribunal in cases involving assault and battery by a student and in cases involving substantial damage alleged to be intentionally caused by a student on school premises to personal property belonging to a teacher, other school official, employee or student. See OCGA § 20-2-753 (a). Plaintiff Brint Tyre was not charged with any such offenses. Consequently, he was not entitled to review by the disciplinary hearing process of OCGA §§ 20-2-753 and 20-2-754. This contention is without merit.

3. It is unnecessary to address defendants’ remaining enumeration of error.

Judgment reversed.

Sognier, C. J., and Carley, J., concur.

Decided March 13, 1991

Rehearing denied March 28, 1991.

Fortson & White, Bruce H. Beerman, Beth H. Parodies, J. Alvin Leaphart, for appellants.

Nathan & Nathan, Ivan H. Nathan, for appellees.


text:
    A90A2259.
    HOUSTON v. CAVANAGH et al.
    (405 SE2d 105)
   Pope, Judge.

We granted interlocutory review to consider the trial court’s denial of a motion to recuse by counsel for appellant/plaintiff Sargus Houston. The motion to recuse came after the underlying case was settled and followed the filing of a claim for attorney fees and costs pursuant to OCGA § 9-15-14 by appellees/defendants Harrison D. Cavanagh, M.D., Emory University d/b/a Emory University Hospital and Emory Clinic.

Following extended discovery proceedings which resulted in appeals to this court and the Supreme Court in Emory Univ. v. Houston, 185 Ga. App. 289 (364 SE2d 70) (1987) and Emory Clinic v. Houston, 258 Ga. 434 (369 SE2d 913) (1988), as well as pretrial hearings and settlement discussions conducted by the trial judge, the underlying case came to trial on February 21, 1990; shortly thereafter the court declared a mistrial. A new jury was struck and the trial recommenced on February 26, 1990.

In the course of that second trial, the trial court determined that Taylor W. Jones, counsel for plaintiff Sargus Houston, had wilfully, intentionally and deliberately violated the trial court’s orders regarding discussing on-going settlement negotiations with the media. As a result, the trial court held Jones in criminal contempt. The facts regarding the trial court’s decision on criminal contempt are set out in this court’s opinion in a separate appeal. In re Jones, 198 Ga. App. 228 (401 SE2d 278) (1990) (affirmed on condition the trial court would state whether it applied the reasonable doubt standard.)

Plaintiff voluntarily dismissed the underlying case on the same day the court announced its order holding Jones in criminal contempt. On March 26, 1990, defendants Cavanagh and Emory Clinic filed a motion for assessment of litigation costs and attorney fees pursuant to OCGA § 9-15-14 against Jones personally. Jones then filed the motion to recuse on April 2. On April 3, Emory University filed its motion for costs of litigation and attorney fees against Jones. The motion to recuse was denied by order entered April 12, 1990, on the ground that the affidavit in support of the motion was legally insufficient. Held:

We reverse. “When a trial judge in a case pending in that court is presented with a motion to recuse accompanied by an affidavit, the judge’s duty will be limited to passing upon the legal sufficiency of the affidavit, and if, assuming all the facts alleged in the affidavit to be true, recusal would be warranted, then another judge must be assigned to hear the motion to recuse.” (Citation and punctuation omitted.) State v. Davis, 159 Ga. App. 537, 539 (3) (284 SE2d 51) (1981). Canon 3 C. (1) (a) of the Code of Judicial Conduct states: “Judges should disqualify themselves in proceedings in which their impartiality might reasonably be questioned, including but not limited to instance where: . . . the judge has a personal bias or prejudice concerning a party or a party’s lawyer. ...” “We interpret the word ‘should’ to mean ‘shall’ in the context of this requirement.” Savage v. Savage, 234 Ga. 853, 856 (218 SE2d 568) (1975). However, “[a]ny alleged prejudice or bias against the party’s attorney rather than the party himself is not, per se, grounds for disqualification. . . .” Mann v. State, 154 Ga. App. 677, 678 (1) (269 SE2d 863) (1980).

Defendants’ motions for attorney fees and costs directed to Jones personally pursuant to OCGA § 9-15-14 are specifically based upon the contention that Jones’ “willful, obdurate and contumacious conduct” unnecessarily expanded the litigation. The acts of Jones alleged to have caused the unnecessary expense are the acts for which the trial judge found Jones in criminal contempt of the court. The underlying case has been settled. The only remaining issue is the § 9-15-14 claim against Jones personally. Although such a claim is brought under the heading of the underlying case (see OCGA § 9-15-14 (e)), it is clear that where the attorney is the sole defendant, the attorney is the party to the § 9-15-14 claim.

Cast in this light, the question becomes whether the affidavit submitted by Jones was legally sufficient to raise an issue regarding the impartiality of the trial judge, who held him in criminal contempt in the underlying case, to pass upon the question of whether that conduct unnecessarily expanded the proceedings and resulted in additional attorney fees and costs to the opposing parties.

After the underlying case was dismissed voluntarily and immediately after holding Jones in contempt and imposing the fine, the trial court said (and this language is quoted in the affidavit):

“I feel truly sorry for Sargus Houston. My personal belief is that he is the beneficiary of some very poor advice on behalf of his counsel.
“I think settlement discussions were participated in by the defendants in this case this morning in good faith, and I believe they made a very substantial offer to settle and resolve this case, which would have been in Mr. Houston’s absolute best interest to accept. And I believe had he had good advice, he would have accepted.” (Emphasis supplied.)

Decided March 15, 1991

Rehearing denied March 28, 1991

Jones, Brown & Brennan, Taylor W. Jones, Timothy R. Brennan, Rebecca A. Copeland, for appellant.

Allen & Ballard, Hunter S. Allen, Jr., Long, Weinberg, Ansley & Wheeler, J. M. Hudgins IV, Stephen R. Sparwath, Sidney F. Wheeler, Chilivis & Grindler, Nicholas P. Chilivis, for appellees.

The situation in the present case should be extremely rare. Our holding necessarily is restricted to the facts of this case. However, this result is necessary to maintain the confidence of the bar and the citizens of this state in the absolute integrity of the judicial system. We hold that in this situation, one in which the judge who found the attorney in contempt in the underlying case is to hear the § 9-15-14 claim against the same attorney who now stands as a defendant in that § 9-15-14 claim, the affidavit in support of recusal was legally sufficient.

Judgment reversed.

Beasley and Andrews, JJ., concur.