author: POPE, Presiding Judge.

text:
    A00A0071.
    BAZEMORE v. THE STATE.
    (535 SE2d 830)
   POPE, Presiding Judge.

This case appears before us for the third time. See Bazemore v. State, 225 Ga. App. 741 (484 SE2d 673) (1997) (Bazemore I); Bazemore v. State, 233 Ga. App. 892 (506 SE2d 177) (1998) (Bazemore II). The only remaining question is whether the trial court erred in quashing Bazemore’s subpoena for production of numerous records from the State’s forensic chemist related to the blood test that led to his conviction of driving with an unlawful blood alcohol level.

In Bazemore I, we affirmed Bazemore’s conviction for driving with an unlawful alcohol concentration and speeding. The Supreme Court granted certiorari and remanded the case for reconsideration in light of Price v. State, 269 Ga. 222, 224 (2) (498 SE2d 262) (1998), which was based in part on Eason v. State, 260 Ga. 445 (396 SE2d 492) (1990), overruled in part by State v. Lucious, 271 Ga. 361, 365 (4) (b) (518 SE2d 677) (1999) (see footnote 1, infra). In Bazemore II, because we could not determine the basis for the trial court’s original order, we vacated the judgment of driving with an unlawful alcohol concentration and remanded the case to the trial court for reconsideration of the ruling on the motion to quash in light of Price and Eason.

The trial court reconsidered, issued an order upholding its previous decision to quash the subpoena and entered a new judgment of conviction on the charge of driving with an unlawful alcohol concentration. The trial court held that it quashed the subpoena both because Bazemore failed to meet his initial burden of showing “the relevancy of the majority of the documents sought by the subpoena” and because the subpoena was unreasonable and oppressive. We now reconsider that decision.

1. As stated in Bazemore II, “When a motion to quash is filed, the party serving the subpoena has the initial burden of showing the documents sought are relevant. OCGA § 24-10-22; [cit.]” Bazemore II, 233 Ga. App. at 893 (2).

Bazemore was charged with driving with a 0.13 blood alcohol level. As described in the trial court’s order, Bazemore’s subpoena ordered the State’s forensic chemist to produce the following items:

a. all chain of custody documents;
b. [as the same relates to the analysis of Bazemore’s blood sample,] all notes, memos, reports, statistics, submission sheets, worksheets, tracking sheets, chromatographs, and any information pertaining to any and all standards and controls utilized in testing;
c. all testing manuals and training materials utilized by the G.B.I. Crime Lab to learn blood sample testing and analysis for alcohol content;
d. all permits and certificates regarding the technician, who drew the sample of Defendant’s blood . . . ;
e. all written techniques, methods, or procedures approved by the Division of Forensic Sciences of the G.B.I. to ascertain qualifications and competency of personnel drawing and analyzing Defendant’s blood; .
f. all written techniques, methods, or procedures which have been approved by the Division of Forensic Sciences of the G.B.I. regarding proper testing/analysis procedures to be followed by the chemist who analyzed Defendant’s blood;
g. all written techniques, methods, or procedures which have been approved by the Division of Forensic Sciences of the G.B.I. regarding the proper operation, maintenance, testing and calibration of the Gas Chromatograph used to analyze Defendant’s blood; and
h. all certificates of the Gas Chromatograph used to analyze Defendant’s blood which show that it is a design approved by the G.B.I. in accordance with OCGA § 50-13-1 thru 50-13-44 and it has all its electronic and operating components in good working order pursuant to OCGA § 40-6-392 (a) (1) (A).

Bazemore contends that it met its burden of showing the documents it sought were relevant. Bazemore argued that under Eason he was entitled to the information for the purpose of cross-examination and impeachment. He urged that he was entitled to all facts the chemist relied on in forming his opinion. He intended to use the material to impeach the witness, and he planned to have the material reviewed by his own expert. He argued, “If [the State is] going to try to introduce a blood test, then it’s relevant for me to know how [the chemist] came to his conclusion, so I can cross-examine him.”

OCGA § 40-6-392 (a) (4) provides that the defendant is entitled to full information concerning the tests administered to him: “Upon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney.” Price held that this Code section allows for broader discovery than under the former criminal discovery provisions that allowed discovery only of written scientific reports. Price, 269 Ga. at 224 (2). Accordingly, the document requested in that case, the printed results of the gas chromatography test of the defendant’s blood, was discoverable. Id.

Eason held that a defendant “has the right to subpoena certain materials from the State Crime Lab chemist for the purpose of cross-examination.” Eason, 260 Ga. at 445 (2). Eason specifically held that the defendant may subpoena “those memos, notes, graphs, computer print-outs, and other data the State Crime Lab Chemist relied upon to support her testimony and opinion during her direct examination.” Id. at 446-447 (2). See also Townsend v. State, 236 Ga. App. 530, 532, 533 (3) (511 SE2d 587) (1999) (although harmless for other reasons, it was error to quash subpoena seeking items listed in Eason, standards and controls used during testing, and chain of custody data).

Thus, Bazemore sustained his burden of showing relevance of at least some of the documents requested in the subpoena. Under Price, Eason, and Townsend, the documents requested in sections “a” and “b,” which pertain to the actual test of defendant’s blood, including the gas chromatography results, were relevant and discoverable. Bazemore is authorized to obtain this information under OCGA § 40-6-392 (a) (4) for the purpose of cross-examination of the State’s laboratory test results. As quoted in Eason,

A basic principle of scientific testing is that careful records of test procedures and results are to be scrupulously maintained. A scientific test without an accompanying report of the testing environment, number of trials, raw results and analyzed data is in reality no test at all.

(Citation and punctuation omitted.) Eason, 260 Ga. at 446.

With regard to the documents requested in sections “c,” “e,” “f,” and “g,” our decision is controlled by Bazemore I. Division 5 of Bazemore I is. the only section of that case affected by the Price decision and thus by the Supreme Court’s remand. See Bazemore II, 233 Ga. App. at 892 (2). In Divisions 2 and 3 of Bazemore I, we found that the record plainly shows that the “methods and procedures” required by OCGA § 40-6-392 (a) (1) (A) were available to Bazemore. Bazemore I, 225 Ga. App. at 743-745. We will not revisit that ruling. Therefore, we need not determine whether Bazemore made a showing of relevance or whether the documents are discoverable.

As for the remaining documents, Bazemore did not show that they are relevant. In sections “d” and “h,” Bazemore requested documents that go to part of the State’s burden of proof with regard to blood alcohol tests. As shown in Bazemore I, the State must prove “at trial” the qualifications of the person who drew the blood pursuant to OCGA § 40-6-392 (a) (2). Bazemore I, 225 Ga. App. at 741 (1). And, the State may prove the qualifications in ways other than introducing permits or certifications of the person who drew the blood. Id. at 741-742 (1). The same applies to certification that the machine was fully configured and operating properly. Id. at 744 (2). Given that the State need not introduce the various permits and certifications that Bazemore sought, Bazemore has not shown that these documents are sufficiently relevant to be discovered.

Finally, “there is no general constitutional right to discovery in a criminal case. [Cits.]” Lucious, 271 Ga. at 364 (4). As stated by the Supreme Court, the right to confrontation does not mean the defendant in a criminal action is entitled to any and all possible useful information in the State’s possession:

The right to confrontation is a “trial right,” guaranteeing a defendant the ability to confront and question adverse witnesses at trial. [Cits.] As a trial right, it “does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony,” [cit.] and does not guarantee “cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. (Cit.)” [Cit.]

Lucious, 271 Ga. at 364 (2) (b).

2. The second question is whether the subpoena was overly broad.

[A] trial court has discretion to quash an unreasonable and oppressive subpoena, and abuse of discretion is the appropriate standard of review in such situations. OCGA § 24-10-22 (b) (1); [cit.] Whether the trial court should quash a subpoena depends on the nature and scope of the discovery request. [Cit.]

Decided June 13, 2000.

Monte K. Davis, for appellant.

Gwendolyn R. Keyes, Solicitor, Robert R. McNeill, Thomas E. Csider, Assistant Solicitors, for appellee.

Townsend, 236 Ga. App. at 533 (3). “[T]he party moving to quash has the burden of showing that the subpoena is unreasonable and oppressive. OCGA § 24-10-22 (b); [cit.]” Bazemore II, 233 Ga. App. at 893 (2).

In response to a motion to quash, a court may quash, modify, or partially quash a subpoena. OCGA § 24-10-22. See also Henderson v. State, 255 Ga. 687, 690, n. 2 (341 SE2d 439) (1986). Appellate courts may consider whether only part of a subpoena was improperly quashed. Id.

The State argued that the subpoena itself showed that it was unreasonable and oppressive, in that it sought numerous documents. Although Bazemore’s subpoena sought much more than the subpoena in Price, it sought several relevant documents, and the court should have allowed discovery of those documents. Bazemore specifically requested chain of custody documents and documents related to his actual blood test, including the gas chromatography results. Under OCGA § 40-6-392 (a) (4) and Price, it was error to quash these requests.

3. As we held in Bazemore II, “Because the testimony of the State’s chemist was evidence of Bazemore’s unlawful blood level, we cannot state with any certainty from the record before us that any error in quashing the subpoena would be harmless.” Id. at 893. Therefore, following Price, we reverse.

4. Construed in favor of the verdict, the evidence, including the blood test results, was sufficient to convict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment reversed.

Smith, P. J., and Miller, J., concur.

       Complicating matters is that last year, the Supreme Court overruled Eason to the extent it allows a defendant to unilaterally obtain evidence of scientific work product. Lucious, 271 Ga. at 365 (4) (b). But, that decision was based on an interpretation of that portion of Georgia’s Criminal Procedure Discovery Act, OCGA § 17-16-1 et seq., applicable to felony cases. Id. Compare OCGA § 17-16-2 and § 17-16-20. Under the section of the act applicable to misdemeanors, a defendant is still entitled to scientific reports without having to agree to reciprocal discovery. See OCGA § 17-16-20 et seq. The discovery act repealed OCGA § 17-7-211, which required disclosure of written scientific reports but reenacted its provisions to apply to misdemeanor cases. See OCGA § 17-16-23; Ga. L. 1994, p. 1895, § 1. See also Lucious, 271 Ga. at 369 (1) (Fletcher, P. J., dissenting) (other provisions reenacted just for misdemeanors). Presumably, the reasoning of Eason is still applicable to misdemeanor cases, such as here.


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A00A0200.
    MALCOM v. NEWTON COUNTY.
    (535 SE2d 824)
   Andrews, Presiding Judge.

Gerald D. Malcom, the former Sheriff of Newton County, sued Newton County claiming the County wrongfully terminated his retirement benefits under the County employee pension plan. Malcom appeals from the trial court’s grant of summary judgment in favor of the County and from the denial of his motion for summary judgment. For the reasons which follow, we reverse the judgment of the trial court and find that: (1) the County established a pension plan in which Malcom obtained a vested contractual right in consideration for his service as County Sheriff; and (2) the County’s subsequent action excluding Malcom from the pension plan was a wrongful impairment of this right and was void.

From 1976 until December 31, 1996, Malcom served as the elected Sheriff of Newton County. As Sheriff, Malcom was not an employee of Newton County, but an elected constitutional officer of the County. On December 31, 1996, Malcom’s last term of office as Sheriff expired. On the same day, a new Sheriff was sworn in and took office. Malcom was not employed by Newton County, nor did he hold elective office in the County, on or after January 1, 1997.

The employee pension plan at issue was established by Newton County in 1968, with a restated version of the plan being adopted in 1986. From 1968 through 1984, the County made no contributions to the pension plan, and employees who elected to participate in the plan were required to fund the plan by their own contributions. Beginning in 1984, the County pension plan became a noncontributory plan funded solely by County funds with no contributions by participating County employees. Malcom does not claim that he became a participant in the plan by contributing to it. In fact, he made no contributions to the plan during his tenure as Sheriff. Rather, he contends that he was included in the County pension plan when Newton County took action to allow its constitutional officers to participate in the plan in December 1996, less than one month before Malcom ended his last term of office as Sheriff.

On December 3, 1996, the Newton County Board of Commissioners voted to include its three County constitutional officers, including Sheriff Malcom, in the County pension plan. Specifically, the Commission established that, effective December 1, 1996, the definition of employee in the County pension plan would include for purposes of pension plan participation the three nonemployee County constitutional officers, and that all past service would be credited for pension purposes. On December 10, 1996, the County pension plan was amended in writing to include the revisions embodied in the December 3 vote.

The amended County pension plan included a provision stating that, effective December 1, 1996, the term “employee” was defined to include the three constitutional officers, with all past service credited for pension purposes. The amended plan also provided that an employee became a participant in the plan by satisfying two eligibility requirements. First, the employee must have completed three years of service. Second, the employee became a participant in the plan on the “Plan Entry Date” coinciding with or immediately following the date on which the three-year service requirement was satisfied, but only if the employee-was employed on the “Plan Entry Date.” The amended plan stated that the “ ‘Plan Entry Date’ means the Effective Date and January 1st of every Plan (Calendar) Year.” The “Effective Date” under the amended plan was defined as follows: “Effective Date. The original ‘Effective Date’ of the Plan is December 1, 1968; this amendment is effective December 1, 1996.” The County voted to partially fund the inclusion of the constitutional officers with existing County funds and to fund the balance from County funds paid yearly to the pension plan administrator over a period of ten to fifteen years.

On December 13, 1996, two new Newton County Commissioners who had been elected to the Board in a November 1996 special election took the oath of office and replaced two of the Commissioners who had voted on December 3, 1996, in favor of including the constitutional officers in the County pension plan. On December 17, 1996, the reconstituted Board of Commissioners voted to rescind the actions of the Board of Commissioners taken on December 3, 1996, and to remove the constitutional officers, including Sheriff Malcom, from the County pension plan. No funds were paid by Newton County to the pension plan administrator to fund the plan for the constitutional officers.

1. Based on these facts, the trial court found that, in order for Malcom to become a participant in the amended plan, he was required to be employed on the “Plan Entry Date,” which the trial court determined could only be January 1, 1997. Since Malcom retired on December 31, 1996, the trial court ruled that he failed to satisfy the eligibility requirements for becoming a participant in the amended plan. Based on this ruling, the trial court further concluded that there was no merit to Malcom’s contentions that he was an eligible participant in the amended plan, that he obtained vested contractual rights in the amended plan after it was established by the County during his tenure as Sheriff, and that the County wrongfully impaired his contractual rights when it later rescinded the amended plan.

We agree with Malcom that the trial court erred by finding that, because he was not the Sheriff or otherwise employed by the County on January 1, 1997, he was not an eligible participant in the amended plan. To be eligible, the amended plan required that Malcom be employed on the “Plan Entry Date.” The amended plan stated that the “Plan Entry Date” means “the Effective Date and January 1st of every Plan (Calendar) Year.” It follows that, if Malcom was employed as Sheriff on the “Effective Date” as defined by the amended plan, this would satisfy the requirement that he be employed on the “Plan Entry Date.”

The definition of “Effective Date” in the amended plan contains two statements: “[t]he original ‘Effective Date’ of the Plan is December 1, 1968” and “this amendment is effective December 1, 1996.” We conclude that this definition makes reference to two effective dates — the original effective date of the plan in 1968, and a December 1, 1996 effective date specifically applicable to the amended plan’s inclusion of the three constitutional officers. Although there may be an ambiguity in the definition because December 1, 1996, is not explicitly referred to as the “Effective Date,” no ambiguity remains after applying the rules of contract construction.

The whole contract should be looked to in arriving at the construction of any part. OCGA § 13-2-2 (4). So viewed, the amended pension plan states that December 1, 1996, is the date the amendment to the plan became effective, and this statement is included under the definition of “Effective Date.” Moreover, the cardinal rule of contract construction is to ascertain the intent of the parties, and it was the clear intention of the County Commissioners and Malcom to establish an amended plan effective December 1, 1996, in which Malcom was an eligible participant. OCGA § 13-2-3; Versico, Inc. v. Engineered Fabrics Corp., 238 Ga. App. 837, 841 (520 SE2d 505) (1999). Finally, the amended pension plan must be liberally construed in favor of the rights of the pensioner. City Council of Augusta v. Wilhelm, 111 Ga. App. 234, 236 (141 SE2d 220) (1965). Under the applicable rules of construction, we find that December 1, 1996, was the “Effective Date” applicable to Malcom and was also the “Plan Entry Date” on which he was employed as Sheriff and became a participant in the amended plan.

Because Malcom became a participant in the amended plan established by Newton County on December 1, 1996, during his tenure as Sheriff, he obtained a vested contractual right in the plan in consideration for his performance of services as Sheriff until he retired on December 31, 1996. Withers v. Register, 246 Ga. 158, 159 (269 SE2d 431) (1980); Swann v. Bd. of Trustees &c., 257 Ga. 450 (360 SE2d 395) (1987). The fact that Malcom made no contribution to the County-funded plan does not render the pension a gratuity which the County could terminate at will. Atlantic Steel Co. v. Kitchens, 228 Ga. 708, 712-713 (187 SE2d 824) (1972). The amended County pension plan constituted adjusted compensation for services rendered by Malcom, and the performance of services as Sheriff was consideration flowing from Malcom which gave him a vested right in receiving pension benefits. Id.; Withers, 246 Ga. at 159; Trotzier v. McElroy, 182 Ga. 719 (186 SE 817) (1936). Moreover, we find nothing in the restated or amended versions of the County pension plan that prohibited the County’s decision to give Malcom credit for his years of service as Sheriff prior to the effective date of the amended plan, or that prohibited the County from funding Malcom’s inclusion in the plan with County funds. Cole v. Foster, 207 Ga. 416, 420-421 (61 SE2d 814) (1950); Bender v. Anglin, 207 Ga. 108, 114-115 (60 SE2d 756) (1950). Accordingly, the County’s subsequent action on December 17,1996, rescinding the amended plan and terminating Malcom’s right to benefits under the plan violated the guarantee in Art. I, Sec. I, Par. X of the 1983 Georgia Constitution against impairment of contracts and was void. Withers, 246 Ga. at 159; Bender, 207 Ga. at 113.

Decided June 13, 2000.

Strauss & Walker, John T. Strauss, for appellant.

2. The trial court erred by ruling that the funding of Malcom’s inclusion in the amended pension plan with County funds created a debt without the consent of the voters in violation of Art. IX, Sec. V, Par. I of the 1983 Georgia Constitution. To the contrary, the Georgia Constitution authorized the County to expend public funds for the purpose of establishing, maintaining, and modifying a retirement or pension system. Ga. Const. of 1983, Art. IX, Sec. II, Par. I (f); Art. IX, Sec. II, Par. III (14); Art. IX, Sec. IV, Par. II; see also Ga. Const. of 1983, Art. III, Sec. X, Par. I; Lomax v. McBrayer, 248 Ga. 753, 757 (286 SE2d 35) (1982).

3. For the reasons stated in Division 2, supra, the trial court also erred by ruling that the inclusion and funding of Malcom in the amended plan created a temporary loan in violation of Art. IX, Sec. V, Par. V of the 1983 Georgia Constitution.

4. Since Malcom obtained a vested contractual right in benefits payable under the amended plan established by the County, it follows that the trial court erred in failing to grant the writ of mandamus sought by Malcom to compel payment of those benefits. Bd. of Trustees &c. v. Mabry, 221 Ga. App. 762, 765 (472 SE2d 542) (1996).

Judgment reversed.

Ruffin and Ellington, JJ, concur.

Smith, Welch, Studdard & Brittain, A. J. Welch, Jr., Webb, Car-lock, Copeland, Semler & Stair, Katharyne C. Johnson, for appellee.

       This action was taken after the General Assembly enacted OCGA § 36-1-11.1 in.1989, which authorized, but did not require, county governments to include county constitutional officers in county employee pension plans.

       The other constitutional officers were the Clerk of the Superior Court and the Probate Court Judge.


author: Smith, Judge.

text:
    A00A0206.
    WILLARD et al. v. THE STATE.
    (535 SE2d 820)
   Smith, Judge.

Bradford Curry Willard (hereinafter “Willard”), his mother, Elizabeth Willard, Matthew Jones, and Tracy Clark were indicted by a Meriwether County grand jury on one count of arson in the first degree, OCGA § 16-7-60, and one count of conspiracy to commit arson, OCGA § 16-4-8. Willard pleaded guilty before trial; a jury convicted Elizabeth Willard and Clark on both counts and convicted Jones of conspiracy. Appellants Elizabeth Willard, Jones, and Clark appeal from the judgment of conviction on the jury’s verdict.

1. In their first enumeration of error, appellants contend the trial court improperly permitted the State to place Willard on the stand after he asserted his Fifth Amendment right against self-incrimination. We disagree.

On the opening day of trial, counsel for appellants made a motion in limine to bar the State from calling Willard as a witness on the basis that he intended to invoke his Fifth Amendment right against self-incrimination if called to testify. The trial court initially denied the motion but allowed appellants to file a motion and brief. After further argument, the State offered to grant immunity to Willard.

The following day, appellants expanded their motion in limine to include not only the testimony of Willard but also any mention of his plea or any statement made by him. After further argument, the trial court denied the general motion but indicated it would rule on such evidentiary matters as they arose.

Before the State placed Willard on the stand, the prosecutor offered an application for a grant of immunity under OCGA § 24-9-28 (a). Willard’s attorney appeared and objected to the testimony on the ground that Willard might be prosecuted for perjury on the stand, because it is exempted from the scope of OCGA § 24-9-28. According to his counsel, Willard feared that he would be charged with perjury if his testimony at trial differed from his earlier statements under oath. In response, the prosecutor stated on the record:

[Wje’re not going to prosecute him for any perjury he may have committed either in the preliminary hearing or in his guilty plea yesterday. And the State will forego, that is, we will not prosecute him for any peijury he may have committed for those acts. But our understanding is still that he is protected from any prosecution for his statements he should make on the stand unless he were to commit perjury today.

Counsel for Willard also expressed his client’s concerns “because of the aura attached to being a snitch or an informant that goes along with the penal system” and because the house was insured by an out-of-state insurance company, interstate commerce was involved, and Willard might be subject to federal prosecution.

The trial court immediately conducted a hearing outside the presence of the jury as required by Parrott v. State, 206 Ga. App. 829, 832 (2) (427 SE2d 276) (1992), and Willard expressed his intention to refuse to testify. After hearing his testimony, the trial court granted immunity to Willard but cautioned the State that if Willard nevertheless refused to testify, “the court would not allow any cross-examination of the witness and the witness would be dismissed from the witness stand because the defendant would not have ... an effective cross-examination.” The trial court concluded that it would “grant this witness immunity and order him to testify in this case.”

The jury was called in, and as soon as Willard was asked to raise his right hand, he interjected, “I’m gonna refuse to testify.” The trial court then asked him if he understood that he was being asked to testify, that he could possibly be prosecuted for his failure to testify, and that the court had signed a grant of immunity for his testimony. Willard responded, “I’m still not gonna testify today.” The trial court asked the prosecutor if he had anything further, and the prosecutor asked, “Mr. Willard, have you pled guilty?” At this point, before Willard responded in any fashion, counsel for appellants interposed an objection and moved for a mistrial. Both were overruled, the trial court asked Willard if he was refusing to testify even though he had been ordered to do so by the court and, upon receiving an affirmative response, cited Willard for contempt and allowed him to leave the stand.

Appellants assert that the trial court erred in forcing Willard to take the stand and invoke his Fifth Amendment rights before the jury. Appellants’ argument, although asserted in a single enumeration of error, actually encompasses two separate contentions: first, that Willard properly asserted his Fifth Amendment rights; and second, that appellants were deprived of their Sixth Amendment right to an effective cross-examination. Neither contention is correct.

(a) First, we note that “[t]he trial court’s grant of an order of immunity pursuant to OCGA § 24-9-28 (a) removed . . . any right to invoke the privilege against self-incrimination. [Cit.]” Hawkins v. State, 175 Ga. App. 606, 609 (1) (333 SE2d 870) (1985). As in Hawkins, no showing has been made that the State knew of Willard’s intention to assert the Fifth Amendment prior to the motion to exclude Willard’s testimony at the beginning of the trial. Id. at 608-609. In fact, Willard was still in the process of pleading guilty in another courtroom as appellants’ trial began.

Appellants’ contention that Willard was entitled to plead the Fifth Amendment because the statutory immunity does not protect him against prosecution for perjury during his trial testimony is without merit. OCGA § 24-9-28 (a) itself plainly provides that the witness “may nevertheless be prosecuted or subjected to penalty or forfeiture for any perjury, false swearing, or contempt committed in testifying or failing to testify.” Under Hawkins, the grant of an order of immunity under this Code section removes “any right to invoke the privilege.” Id. at 609. As the State observed at trial, to hold otherwise would render the immunity statute meaningless, because any witness would be able to continue to assert the privilege against self-incrimination regardless of a grant of immunity.

Citing no authority, appellants argue that Willard still had a valid basis to invoke his Fifth Amendment rights because a federal prosecution might theoretically occur. We agree with the trial court that this was at best “a remote possibility.” Appellants have “the burden of showing error affirmatively by the record, and this burden cannot be discharged by recitations of error in the brief. [Cits.]” (Punctuation omitted.) Guest v. State, 229 Ga. App. 627, 628 (1) (494 SE2d 523) (1997). On the facts in this record, appellants have not shown what Willard’s testimony at trial would have been, nor have they demonstrated the likelihood or even the possibility of a federal prosecution on the basis of Willard’s testimony at trial. Appellants’ argument that Willard remained in danger of prosecution because the conspiracy count against him was nol prossed is also without merit. OCGA § 16-4-8.1 expressly provides that a person “may not be convicted of both conspiracy to commit a crime and the completed crime.”

(b) Appellants contend that they were deprived of their right of effective cross-examination of Willard and that the State created an “unfavorable inference” through Willard’s appearance on the witness stand. Appellants rely on Parrott, supra, Lawrence v. State, 257 Ga. 423 (360 SE2d 716) (1987), and Lingerfelt v. State, 235 Ga. 139 (218 SE2d 752) (1975), although none of these decisions involves a grant of immunity under OCGA § 24-9-28 (a). We note, although appellants do not, that the decision of Greenwood v. State, 203 Ga. App. 901 (418 SE2d 160) (1992), applied the rationale of Lingerfelt and its progeny to a case in which a witness refused to testify despite a grant of immunity. But the rationale relied on by appellants is not applicable to the facts of this case.

Here, as in Parrott, supra, the procedural scheme established by the Supreme Court in Lingerfelt was followed by the State. In Lingerfelt, after the witness invoked the Fifth Amendment, the State read into evidence by means of leading questions the previous testimony of the witness in another proceeding, thereby depriving Lingerfelt of the right to cross-examine the witness. The error in that case was compounded by the fact, noted by the Supreme Court, that an earlier appeal had already held the previous testimony inadmissible, and the leading questions were a device “to do indirectly what we had held could not be done directly.” Id. at 140. Similarly, in Greenwood, supra, the recalcitrant witness refused to answer when the State propounded, over objection, a series of questions asking in detail about his and Greenwood’s participation in the crime with which they were charged.

Indeed, a witness’ in-court invocation of his Fifth Amendment rights is not necessarily harmful. What is harmful is for the trial court to allow the State, once a witness has invoked his Fifth Amendment rights, in effect, to testify for the witness and circumvent meaningful cross-examination as to obvious inferences.

(Citations and punctuation omitted.) McIntyre v. State, 266 Ga. 7, 11 (5) (463 SE2d 476) (1995).

In this case, the State asked only one general question which did not contain any facts regarding appellants or the charges against them, and no testimony previously ruled inadmissible was placed before the jury. In accordance with its earlier order that no such testimony would be placed on the record and the witness would immediately be excused, the trial court ended the examination and excused Willard. Moreover, Willard never responded in any fashion to the single question, and “an unanswered question does not furnish grounds for a mistrial. [Cits.]” Berry v. State, 210 Ga. App. 789, 791 (4) (437 SE2d 630) (1993). Appellants were not deprived of their right to an effective cross-examination, because the witness never answered or refused to answer the single question directed to him by the State.

“The trial court has a wide latitude of discretion in controlling the examination of witnesses, and unless there is a manifest abuse of this discretion, an objection such as here will not work a reversal of the case.” (Citations and punctuation omitted.) Smith v. State, 236 Ga. App. 122, 124 (3) (511 SE2d 223) (1999). We cannot say that, under these circumstances, the trial court erred in allowing Willard to take the stand.

Decided June 13, 2000.

John T. Martin, Frank K. Martin, for appellants.

Peter J. Skandalakis, District Attorney, Jeffery W. Hunt, Assistant District Attorney, for appellee.

2. The State concedes that the hearing required by OCGA § 17-14-8 before imposition of restitution was not held. Accordingly, this portion of each of the trial court’s judgments is reversed, and this case is remanded for hearing on the issue of restitution.

Judgments affirmed in part and reversed and remanded in part.

Pope, P. J., and Miller, J., concur.

       We nevertheless address both issues, as the Supreme Court of Georgia has directed in Felix v. State, 271 Ga. 534, 539-540 (523 SE2d 1) (1999).


text:
    A00A0248.
    RIGHT TOUCH OF CLASS, INC. v. SUPERIOR BANK, FSB.
    (536 SE2d 181)
   Andrews, Presiding Judge.

Right Touch of Class, Inc., a used car dealer, sold a car and retained the car’s certificate of title after the check it received from the purchaser, Specialty Car Sense, Inc. (also a used car dealer), was dishonored. Specialty then sold the car to Chinedum I. Ironkwe and received payment from Superior Bank, FSB, which financed the sale and acquired a lien on the car title. Exercising its rights as lienholder, Superior Bank sued Right Touch seeking an order directing Right Touch to transfer the title to Ironkwe. Right Touch counterclaimed against Superior Bank demanding full payment for the car from the bank for transfer of the title or the return of the car.

Right Touch appeals from the trial court’s order granting summary judgment in favor of Superior Bank on the bank’s claim and on Right Touch’s counterclaim and directing Right Touch to transfer the title and surrender it to Superior Bank.

The following facts control the decision in this case. Right Touch attempted to sell the car to Ironkwe but was unable to do so because it could not arrange for financing. Subsequently, Right Touch entered into an arrangement whereby it took a $5,000 down payment on the car from Ironkwe, sold the car to Specialty, and Specialty, which arranged financing for Ironkwe from Superior Bank, sold the car to Ironkwe on the same day. To accomplish this, Right Touch executed documents selling the car to Specialty for $23,495, including a “Motor Vehicle Dealer Title Reassignment Supplement” form supplied by the State of Georgia Motor Vehicle Division, which acknowledged that Right Touch had transferred the car and assigned the certificate of title to Specialty on April 27, 1997. Specialty issued a check to Right Touch dated April 27, 1997, in the amount of $23,495. On the same day, Specialty sold the car to Ironkwe for $29,495 (noting that $5,000 of the sale price had been paid as a down payment), and Superior Bank financed the sale by issuing a check to Specialty for the sale price and acquired a lien on the car. Ironkwe took possession of the car from Specialty at the time of the sale. When Right Touch deposited the check from Specialty over a week after the sale, it was dishonored, and Right Touch refused to transfer the certificate of title.

1. These facts show that Right Touch completed the sale of the car to Specialty and delivered the car to Specialty on April 27, 1997, for the express purpose of empowering Specialty to sell the car to Ironkwe on the same day with financing provided by Superior Bank. In fact, by executing the Motor Vehicle Dealer Title Reassignment Supplement form as part of the sale documents, Right Touch acknowledged that it had sold its ownership interest in the car to Specialty and that it was required to immediately transfer the certificate of title. Nothing in the documents evidencing the sale of the car by Right Touch to Specialty or by Specialty to Ironkwe supports Right Touch’s assertion that receiving payment on Specialty’s check was a condition precedent to transfer of title. To the contrary, the facts show that Right Touch sold the car to Specialty for the purpose of authorizing Specialty to immediately sell the car to Ironkwe. Under these facts, Right Touch’s claim for the dishonored check is against Specialty.

Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place. . . .

OCGA § 11-2-401 (2). Since there was no explicit agreement to the contrary, the facts show that Specialty acquired title to the car and the right to sell the car to Ironkwe when the car was delivered to Specialty for this purpose. See American &c. Ins. Co. v. Cotton States Mut. Ins. Co., 149 Ga. App. 280, 281 (253 SE2d 825) (1979). The fact that Specialty did not obtain the certificate of title did not deprive it of title in the car or prevent it from transferring title to Ironkwe. “[A]s between the parties [,] an ownership may change hands without the necessity of transferring a title certificate by the seller and obtaining a new one in the name of the purchaser.” Canal Ins. Co. v. Woodard, 121 Ga. App. 356, 358-359 (173 SE2d 727) (1970); McDowell v. Owens, 170 Ga. App. 421 (317 SE2d 275) (1984); Bank South, N.A. v. Zweig, 217 Ga. App. 77 (456 SE2d 257) (1995); OCGA §§ 40-3-32; 40-3-33. It follows that title to the car was transferred to Ironkwe and the trial court did not err by ordering Right Touch to execute a transfer of the title certificate to Ironkwe and to surrender it to Superior Bank.

Decided June 13, 2000.

Hopkins & Taylor, Philip P. Taylor, for appellant.

Bridgers, Stringfellow, Bland & Peters, Henry R. Stringfellow, for appellee.

2. Even if the facts supported Right Touch’s contention that it did not intend to sell the car to Specialty and authorize it to sell the car to Ironkwe until Specialty’s check cleared, this view of the facts supports the conclusion that Right Touch entrusted the car to Specialty pursuant to OCGA § 11-2-403 (2) with the understanding that Specialty would arrange for financing and sell the car to Ironkwe, who, as a buyer in the ordinary course of business as defined in OCGA § 11-1-201 (9), obtained all of Right Touch’s interest to the car. See Classic Cadillac, L.P. v. World Omni Leasing, 199 Ga. App. 115, 116-117 (404 SE2d 452) (1991); Perez-Medina v. First Team Auction, 206 Ga. App. 719, 720-723 (426 SE2d 397) (1992). After Right Touch entrusted the car to Specialty under this view of the facts, the sale to Ironkwe transferred all of Right Touch’s ownership interest and vested ownership in the car to Ironkwe, subject to Superior Bank’s lien. Classic Cadillac, 199 Ga. App. at 117; Perimeter Ford v. Edwards, 197 Ga. App. 747, 748-749 (399 SE2d 520) (1990). Under these circumstances, the risk that the check from Specialty to Right Touch would be dishonored was borne by Right Touch. Classic Cadillac, 199 Ga. App. at 117; OCGA § 11-2-403 (1).

3. We find no error in the trial court’s award of damages incurred by Superior Bank as a result of Right Touch’s refusal to transfer title to the car.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.


author: Miller, Judge.

text:
    A00A0426.
    WHITE v. THE STATE.
    (536 SE2d 180)
   Miller, Judge.

A jury found Brian Charles White guilty of one count of trafficking in cocaine, one count of possession of cocaine with intent to distribute, and two counts of possessing and selling cocaine. On appeal, he enumerates as error the denial of his motion for directed verdict and the court’s jury instruction on the law of entrapment.

1. White contends that the trial court erred in denying his motion for directed verdict of acquittal, arguing the State failed to rebut his defense of entrapment. A detective purchased cocaine twice from White, including once through an informant (White’s former live-in girlfriend). In the first transaction on May 14, 1998, the informant made the exchange of cocaine and money between White and an undercover detective. In the second transaction on May 22, 1998, the same undercover detective went to White’s home with another detective and purchased less than an ounce of cocaine. Detectives then obtained a search warrant for White’s home where they found more than $2,000 in cash and about 40 grams of cocaine on White’s person.

White contends that the informant induced his involvement in the transactions and that the State’s use of his common law wife as an informant is “entrapment per se.” Under OCGA § 16-3-25:

[a] person is not guilty of a crime if, by entrapment, his conduct is induced or solicited by a government officer or employee, or agent of either, for the purpose of obtaining evidence to be used in prosecuting the person for commission of the crime. Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.

“When a defendant raises this defense and testifies to it at trial, it is the State’s burden to disprove the defense beyond a reasonable doubt.”

White testified that (1) the informant asked him for drugs and (2) he would get them for her because he loved her. Even if this were true, White himself testified that he purchased the cocaine to sell to the undercover agent on his own initiative, that he sold cocaine for about six months prior to his arrest, and that he sold it to three or four close friends in addition to providing it to the informant. “The predisposition of the defendant against committing the crime is a key element of the defense.” This testimony clearly shows that White had a predisposition to commit the offenses charged.

White’s own testimony rebutted his claim that he was entrapped, and we find no authority that the use of a defendant’s common law spouse as an informant is “entrapment per se.” Thus, the trial court correctly denied White’s motion for a directed verdict.

Decided June 13, 2000.

Ralph J. Hunstein, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

2. White argues the trial court erred in its charge to the jury on the law of entrapment. Specifically, he argues that the court’s use of the word “already” in the instruction was ambiguous. The court’s charge, however, was taken verbatim from the charge White requested on the issue. “That being so, any error in the charge was induced and cannot now be relied upon to seek a reversal.”

White also argues that the court should have instructed the jury that the State had to prove beyond a reasonable doubt that the defendant had a predisposition to violate the law before the government intervened. Even if such were required, the court’s instruction that the State has the burden of proving beyond a reasonable doubt that the defendant was not entrapped sufficed.

Judgment affirmed.

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

       (Citation omitted.) Wilcox v. State, 229 Ga. App. 227, 229 (1) (493 SE2d 724) (1997).

       (Citation omitted.) Rutledge v. State, 218 Ga. App. 130, 132 (1) (460 SE2d 551) (1995).

       There was testimony that the informant had not lived with White since 1997.

       See id. at 133 (2); see also Wilcox, supra, 229 Ga. App. at 229-230 (1).

       (Citation omitted.) Brown v. State, 262 Ga. 833, 834 (4) (426 SE2d 559) (1993); see Emerson v. State, 222 Ga. App. 596 (1) (474 SE2d 638) (1996); Griffith v. State, 188 Ga. App. 789, 790 (374 SE2d 359) (1988).


author: Pope, Presiding Judge.

text:
    A00A0552.
    JACKSON et al. v. THE STATE.
    (535 SE2d 818)
   Pope, Presiding Judge.

Tim and Tracy Jackson appeal their convictions for burglary. Tim Jackson has failed to file a brief on appeal, and therefore, his appeal has been dismissed. Tracy Jackson raises three enumerations of error.

1. Jackson contends the evidence was insufficient to support the verdict. Construed in favor of the verdict, the evidence shows that John Dowdy got into an argument with his boss Charlie Welch, the owner of “Charlie’s Place,” and that he drove from there to his sister’s house with two teenage boys talking about how he should get even with Welch. At his sister’s house, where there was a party, Dowdy continued to talk with several people about taking revenge by breaking into Charlie’s Place and stealing the cash box. One of the boys testified that the Jacksons were present when Dowdy was discussing his plan.

Then, in the middle of the night, Dowdy, the Jacksons, and one of the boys got into a van with Tracy Jackson driving. The boy testified that Dowdy discussed how he was going to break in, and they all discussed how they were going to split up the money. Tracy Jackson dropped off Dowdy, and possibly the boy, near Charlie’s Place, drove on to Wal-Mart, returned shortly thereafter, and picked up Dowdy who had the cash box and money. The boy testified that they then split up the money and threw the cash box out the window. The boy was able to tell the police where to find the box. Dowdy confessed to the burglary and admitted the essential facts, but he testified that the Jacksons were completely unaware of his plan, were not involved in the crime, and did not get any of the money.

In felony cases, an accomplice’s testimony as to the participation of the defendant on trial must be corroborated. OCGA § 24-4-8; Hanifa v. State, 269 Ga. 797, 808-809 (7) (505 SE2d 731) (1998). But slight evidence of corroboration is all that is required. Ledbetter v. State, 262 Ga. 370, 372 (5) (418 SE2d 57) (1992). And one accomplice may corroborate the testimony of another. Hanifa, 269 Ga. at 809. Here, during the investigation, Dowdy gave a written statement to the police implicating the Jacksons, and that statement was put in evidence. This was sufficient to corroborate the young boy’s testimony of the Jacksons’ involvement, and therefore, the evidence was sufficient to support the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Though she raised no objection at trial, Jackson contends her counsel was ineffective because he had a conflict of interest in that he also represented her husband at trial. On September 22, 1999, after notice of appeal had been filed on behalf of both Tim and Tracy, the trial court relieved the Jacksons’ appointed trial counsel from duty and assigned Jason Williams to represent Tracy in any further proceedings. As a result, this appeal was Tracy’s first opportunity to raise the issue of ineffective assistance. “Under these circumstances, this case must be remanded to the trial court for a hearing and appropriate findings on this claim.” Seabolt v. State, 190 Ga. App. 244 (378 SE2d 416) (1989); Johnson v. State, 259 Ga. 428, 429-430 (3) (383 SE2d 115) (1989). If the court finds that Tracy Jackson did not receive effective assistance of counsel, a new trial is required. If it finds that she did have effective assistance, she shall have 30 days in which to appeal the trial court’s ruling.

3. Jackson also contends the trial court abused its discretion in sentencing her to 20 years probation, the maximum available and the same amount sought by the State. After the State made its request, defense counsel stated, “We would concur with the State as to the probation for Mrs. Jackson. . . .” But counsel also asked for first offender treatment. In response the court stated, “She already lost first offender, she went to trial. If she wants first offender, she enters a plea. I won’t consider that.”

Decided June 13, 2000.

Germano & Kimmey, C. David Turk III, Clarkson & Williams, Jason S. Williams, Kerry L. Ingram, for appellants.

N. Stanley Gunter, District Attorney, Gerald W. Bruce, Assistant District Attorney, for appellee.

In Cottingham v. State, 206 Ga. App. 197, 199 (3) (424 SE2d 794) (1992), we held: “[A] trial court’s use of a mechanical sentencing formula or policy as to any portion of a sentence amounts to a refusal to exercise its discretion and therefore is an abdication of judicial responsibility.” The court’s statement indicates that it had a mechanical policy of refusing to consider first offender status for those who chose to go to trial. See, e.g., id. at 198-199 (3); Jones v. State, 208 Ga. App. 472, 473 (431 SE2d 136) (1993).

“The legislature has specifically provided first offender treatment as a sentencing option in felony cases to be applied at the trial court’s discretion. OCGA § 42-8-60; [cit.]” Jones, 208 Ga. App. at 473. And, that Code section applies to sentencing after both pleas and verdicts. OCGA § 42-8-60 (a). The trial court’s refusal to consider first offender status after a verdict is a refusal to exercise discretion. Cf. Jones, 208 Ga. App. at 473. “The judgment of sentence is vacated, and the case remanded for resentencing with direction that the new sentence not exceed the sentence previously imposed, and the request for first offender status be heard and considered on its merits.” Id.

Sentence vacated and case remanded with direction.

Smith, P. J., and Miller, J., concur.


text:
    A00A0664.
    HUDSON v. J. H. HARVEY COMPANY.
    (536 SE2d 172)
   Pope, Presiding Judge.

Eddie Lee Hudson sued J. H. Harvey Company for damages after she slipped and fell in a Harvey’s supermarket. Hudson appeals the trial court’s grant of summary judgment in favor of Harvey. Because there is no evidence that Hudson slipped on a hazard, we affirm.

On December 18, 1996, Hudson went shopping at Harvey’s supermarket. It was raining, and Hudson’s neighbors, who had driven her to the store, let her out of the car in front of the entrance. She stepped out of the car and took a few steps to the covered sidewalk outside the store entrance. She went into the store where a rug had been placed just inside the entranceway. Hudson took several steps on the rug and then slipped and fell when her right foot stepped off the rug. She fell onto her hands and knees. Hudson’s pants did not get wet when she fell, nor did she see water on the floor. A store patron who saw Hudson fall did not see water on the floor. The store manager inspected the floor after Hudson’s fall and discovered no foreign substances. She testified that she believed that the entrance rug was wet because of the numerous people entering the store on a rainy day, but she had no direct knowledge that the rug was wet.

In order to prevail on summary judgment, the moving party must demonstrate that there are no genuine issues of any material fact and that the undisputed facts, viewed in a light most favorable to the nonmoving party, support a judgment as a matter of law. Hutchins v. J. H. Harvey Co., 240 Ga. App. 582, 584 (524 SE2d 289) (1999). “A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” (Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Under Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997), in order to recover for injuries sustained in a slip and fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner or occupier.

Hudson cannot meet the first prong of this test because there is no evidence that she slipped on a hazard. Her complaint alleges that Harvey failed in its duty to keep passageways intended for public use clear of water and other slippery substances. A plaintiff who alleges she slipped on a foreign substance must present some evidence of a foreign substance on the ground where she slipped. Williams v. EMRO Marketing Co., 229 Ga. App. 468, 469 (2) (494 SE2d 218) (1997). Hudson has not shown why she slipped. And speculation cannot establish causation. See Avery v. Cleveland Ave. Motel, 239 Ga. App. 644, 645 (1) (521 SE2d 668) (1999).

This case is similar to Veazy v. F. W. Woolworth Co., 191 Ga. App. 601 (382 SE2d 411) (1989). There, the plaintiff slipped in defendant’s store on a rainy day, but she did not know why she slipped. She assumed that it was by reason of an accumulation of rainwater. This court upheld the trial court’s grant of summary judgment in favor of the defendant, noting that “[t]o presume that because a customer falls in a store that the proprietor has somehow been negligent would make the proprietor an insurer of his customer’s safety. . . . [Cit.]” Id. at 602.

Decided June 13, 2000.

Herbie L. Solomon, for appellant.

Clyatt, Clyatt & Costner, Robert M. Clyatt, Carl G. Fulp III, Sandra K. Sanders, for appellee.

In factually similar slip and fall cases for which summary judgment was not proper, evidence showed that water had accumulated on the floor of defendant’s premises. In Hutchins, 240 Ga. App. at 584, the plaintiff testified that she saw a clear puddle on the floor where she fell and it soiled her dress. In Stephens v. Kroger Co., 236 Ga. App. 871 (513 SE2d 22) (1999), although the plaintiff could not see the water on the floor before she fell, she testified that she felt her hand in water after she fell. In Sutton v. Winn-Dixie Stores, 233 Ga. App. 424, 427 (504 SE2d 245) (1998), the plaintiff was looking straight ahead when she fell, but her pants were soaked when she got up. Here, Hudson did not see any water after she fell. She did not feel any water after she fell. And she did not notice any water on her clothes.

In Robinson, our Supreme Court indicated that the routine issues of premises liability are not generally susceptible of summary adjudication. 268 Ga. at 749. But all Hudson can show here is that she slipped and fell. Evidence of a hazardous condition was required before Harvey could be said to have actual or constructive knowledge of it. Hudson could not meet the first prong of the Robinson test. The trial court properly granted summary judgment in favor of Harvey.

Judgment affirmed.

Smith, P. J., and Miller, J., concur.


text:
    A00A0678.
    MAYER v. WYLIE.
    (535 SE2d 816)
   Miller, Judge.

Thongkham Mayer sued Rebecca Wylie, seeking to recover $7,000 for damages sustained to Mayer’s vehicle allegedly due to the negligent operation of Wylie’s vehicle. The jury returned a defense verdict. On appeal, Mayer’s sole enumeration of error complains of the trial court’s charge regarding an expert witness. We affirm.

In 1992, Larry D. White was a patrol sergeant with the City of Douglasville Police Department and a veteran officer with 15 years experience on the force. From the police department squad room, he heard the impact of two vehicles colliding and drove the very short distance to investigate. After ascertaining that there were no injuries, he asked each driver what happened. Wylie stated “she was traveling southbound on Bowden Street approaching the intersection when the vehicle driven by Mrs. Mayer came across the intersection and [Wylie] hit it in the side.” Mayer stated “she was westbound on Spring Street, . . . crossing the intersection when Mrs. Wylie struck her in the right side of the vehicle.” Nevertheless, Sergeant White issued Mayer a citation for disregarding a stop sign, at which time Mayer protested for the first time “that she had stopped for a stop sign.” Sergeant White thought it significant that in her first statement to him, Mayer “never even mentioned the stop sign.”

Sergeant White started to offer what “[m]ost people [say to investigating officers] when they have a stop sign,” but Mayer’s objection to what “most people” say was sustained. The same objection was raised to a question about Sergeant White’s experience in similar situations “when a person first doesn’t mention the stop signs [,]” and the trial court ruled that Wylie would “need [to show] more foundation at least.” After establishing Sergeant White’s accident investigation experience over his 15-year career, Wylie was permitted, over objection, to elicit Sergeant White’s opinion that “[m]ost of the time [drivers] want to make it very evident that they did stop at the stop sign before the accident occurred,” but that Mayer did not do so in this case. Before allowing this evidence, the trial court admonished the jury that:

admitting the evidence is not to say that I’m telling you to believe it or give it any weight or not weight. The weight is entirely up to you. I’m going to let the officer say what his experience is, whether you accept that in whole or in part is completely up to you.

On appeal, Mayer contends the court’s charge on expert witnesses was harmful error because Sergeant White was never offered as an expert nor qualified as an expert, and since neither side requested this charge, it had the effect of impermissibly bolstering the credibility and veracity of the witness.

Unlike permissible opinions as to speed or point of impact or even sequence, based upon observation of the physical evidence, there is considerable doubt that the investigating officer’s opinion or experience as to how often the majority of other drivers refer initially to having lawfully stopped at a stop sign (if in fact they did so) is permissible evidence under OCGA § 24-9-65. A party’s negligence or lack of negligence on any particular occasion must be proved only by the facts of that event, and not by any evidence of his prior driving record or of his general character or reputation for carelessness or recklessness in driving. If a party’s own past experience is legally irrelevant to the question of negligence on a particular occasion, then the experience of other drivers on other occasions is even less probative. It is not permissible to put an expert’s imprimatur on the truthfulness of another witness’s statement. In this appeal, however, there is no challenge to Sergeant White’s testimony. The charge complained of is a correct statement of the law, taken from the pattern jury instructions, and includes the express admonition that jurors “are not required to accept the testimony of any witness, expert or otherwise.” In the absence of any enumeration challenging the evidence underlying the court’s decision to include the charge, we cannot say the inclusion of a correct instruction on expert testimony was harmfhl error.

Decided June 13, 2000.

Herman Pierre, Jr.-, for appellant.

Cobb & Walton, James B. Walton, for appellee.

Judgment affirmed.

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

        Massee v. State Farm &c. Ins. Co., 128 Ga. App. 439, 445 (4) (197 SE2d 459) (1973) (speed); Royal Crown Bottling Co. &c. v. Stiles, 82 Ga. App. 254 (4) (a) (60 SE2d 815) (1950) (point of impact); Stenger v. Weller, 47 Ga. App. 863 (1) (171 SE 829) (1933) (sequence).

       “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 his reasons therefor. If the issue shall be as to the existence of a fact, the opinions of witnesses shall be generally inadmissible.”

       See Whidby v. Columbine Carrier, 182 Ga. App. 638 (1) (356 SE2d 709) (1987). Compare Felton v. White, 197 Ga. App. 367 (398 SE2d 425) (1990) (officer’s opinion that “both drivers lost control” did not intimate whether either driver was negligent); Massee v. State Farm &c. Ins. Co., supra, 128 Ga. App. at 444 (officer was not asked and did not intimate who was or was not negligent, which was the ultimate question for the jury).

        Long v. State, 241 Ga. App. 370, 372 (3) (526 SE2d 875) (1999).

       Tender of an expert may be implied by permission to proceed (with or without objection) after laying a foundation. In the Interest of C. W. D., 232 Ga. App. 200, 207 (3) (b) (501 SE2d 232) (1998).

       See Rodriguez v. State, 271 Ga. 40, 44 (3) (518 SE2d 131) (1999).

       Compare Newberry v. D. R. Horton, Inc., 215 Ga. App. 858 (1) (452 SE2d 560) (1994) (whole court) (where expert testimony is necessary to support the plaintiff’s claim, failure to qualify and tender witness as an expert authorizes directed verdict).

        Durham v. State, 181 Ga. App. 155, 157-158 (4) (351 SE2d 683) (1986).


text:
    A00A0698.
    THE STATE v. WATSON.
    (536 SE2d 170)
   Pope, Presiding Judge.

Elisa James Watson was charged with armed robbery, criminal attempt to commit armed robbery, kidnapping, and aggravated assault with attempt to rob. Watson represented himself pro se at the preliminary hearing in his case. He later hired counsel and moved to exclude the testimony he had given at the preliminary hearing. Watson argued that his testimony was not admissible because he had not been adequately informed of his rights and had not waived his right to counsel. The trial court granted Watson’s motion in limine, and the state appeals. We affirm.

“[A]ny statement which [a] defendant [makes] during the course of his self-representation stem[s] from his decision to represent himself.” Gray v. State, 204 Ga. App. 33, 35 (5) (418 SE2d 412) (1992). See also Callahan v. State, 175 Ga. App. 303, 304-305 (333 SE2d 179) (1985). Thus, to determine whether Watson’s testimony at the preliminary hearing was voluntary, we must determine whether he voluntarily chose to represent himself at that hearing. Id.

Given the nature of the charges against him, Watson was entitled to be represented by counsel at his preliminary hearing. See Heard v. State, 236 Ga. App. 625, 626 (513 SE2d 35) (1999); Houston v. State, 187 Ga. App. 335, 339 (4) (370 SE2d 178) (1988). A defendant has the right to represent himself, however, if he makes a voluntary and intelligent waiver of his right to counsel. Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975).

Therefore, a trial court must insure that a defendant is adequately informed of his rights and the consequences of representing himself:

To be valid the waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter.

McDowell v. State, 239 Ga. App. 667, 669 (1) (522 SE2d 44) (1999). See also Clarke v. Zant, 247 Ga. 194, 196-197 (275 SE2d 49) (1981). And although no “magic language” and no specific questions are required, the record must reflect that the defendant was “made aware of the dangers of self-representation, and nevertheless made a knowing and intelligent waiver.” Wayne v. State, 269 Ga. 36, 38 (2) (495 SE2d 34) (1998).

The preliminary hearing in this case was not transcribed. “ ‘When the record is silent, waiver is never presumed, and the burden is on the state to present evidence of a valid waiver.’ ” (Citations omitted.) Braswell v. State, 240 Ga. App. 510 (1) (523 SE2d 904) (1999). See also Hamilton v. State, 233 Ga. App. 463, 467 (1) (b) (504 SE2d 236) (1998). At the hearing on the motion in limine, the state presented the testimony of the magistrate and district attorney involved in the preliminary hearing, but neither witness had any specific recollection of what was said at Watson’s hearing. And while they both testified as to the magistrate’s general practice in advising pro se defendants, there was no evidence as to what the magistrate actually told Watson. Moreover, the magistrate stated that he did not as a standard practice discuss the nature of the charges or the potential punishments involved before proceeding with a pro se defendant.

Decided June 13, 2000.

Lydia J. Sartain, District Attorney, E. Paul Stanley, Assistant District Attorney, for appellant.

Whitmer & Law, George H. Law III, for appellee.

Under these circumstances, we find the state has failed to meet its burden of showing that Watson made a knowing and intelligent waiver of his right to counsel, and the trial court correctly granted the motion in limine.

Judgment affirmed.

Smith, P. J., and Miller, J., concur.


author: Smith, Presiding Judge.

text:
    A00A0759.
    WHITE et al. v. JONES.
    (536 SE2d 167)
   Smith, Presiding Judge.

On April 11, 1997, a collision occurred between a vehicle operated by Crystal White and a vehicle operated by Gwendolyn Ruth Jones. On April 9, 1999, Crystal White, Malcolm White, and Marcus White brought this action against Jones. On May 7, Jones made a limited appearance and answered, denying the Whites’ allegations as to her county of residence and address. Jones also asserted affirmative defenses, including lack of jurisdiction, insufficiency of process, insufficiency of service of process, the statute of limitation, and laches. On July 1, Jones still had not been served, and she moved to dismiss the complaint for insufficiency of service of process. The Whites responded, acknowledging that they had not yet succeeded in serving Jones. On August 9, the trial court granted Jones’s motion and dismissed the complaint, concluding that the Whites were guilty of laches in failing to serve Jones in a timely fashion or to exercise due diligence in attempting to serve her. Because we find that the trial court did not abuse its discretion in dismissing the complaint, we affirm.

1. On appeal, the Whites raise for the first time the argument that the statute of limitation should not apply to Malcolm and Marcus White because they are minors. “We do not consider issues raised for the first time on appeal, because the trial court has not had opportunity to consider them.” (Citation and punctuation omitted.) Padilla v. Melendez, 228 Ga. App. 460, 461 (1) (491 SE2d 905) (1997). In contrast to our decision in Mitchell v. Hamilton, 228 Ga. App. 850, 852 (3) (493 SE2d 41) (1997), in which we concluded that the issue of the application of the statute of limitation to an unemancipated minor was raised in the trial court, although only at oral argument, here the record contains not the slightest indication that the Whites ever raised this issue below.

In the Whites’ response to Jones’s motion to dismiss, they address solely the issue of their due diligence in locating Jones. While the style and preamble of the complaint below insert the designation “a minor” after the names of Malcolm White and Marcus White, they appear to have brought the action in their own names. Crystal White does not allege that she is bringing the action as next friend or parent, and her relationship to Malcolm and Marcus is not alleged. The Whites never allege the ages of Malcolm or Marcus, their birth dates, or when their minority status would end. We cannot glean from a silent record the necessary facts to consider the issue of minority, particularly when it was never raised or ruled on below.

2. We next consider the trial court’s finding that the Whites were guilty of laches and lack of due diligence in their attempts to serve Jones.

The burden on a plaintiff who has failed to serve a complaint within the statute of limitation is well established: When service is made outside the limitation period, the plaintiff has the burden of showing that due diligence was exercised. Ordinarily, the determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse. The plaintiff must also show the failure to timely serve was not her fault.

Decided June 13, 2000.

John C. Wise, for appellants.

Claxton & Claxton, James F. Taylor III, for appellee.

(Citations and punctuation omitted.) Strickland v. Home Depot, 234 Ga. App. 545-546 (507 SE2d 783) (1998).

Under the facts of this case, the Whites have not demonstrated that they exercised due diligence as a matter of law. Their obligation to ascertain Jones’s correct address did not arise only upon expiration of the statute of limitation. Devoe v. Callis, 212 Ga. App. 618, 619 (442 SE2d 765) (1994). While the Whites’ counsel alleged by affidavit that this complaint was an “emergency filing,” the record shows that after the sheriff’s department made a “non est” return on April 19, and even after Jones’s special appearance asserting inadequate service, no further steps were taken by the Whites to locate Jones until July 28, 1999, when the Whites’ counsel contacted a skip tracer and Jones’s counsel. It took the skip tracer only one day to locate Jones.

“Once a plaintiff is put on notice of a problem with service, she is required to exercise the greatest possible diligence to ensure proper and timely service.” (Citations and punctuation omitted.) Devoe, supra at 619-620. As the trial court correctly observed, once the Whites were put on notice by Jones’s answer that a problem with service existed, they were obligated to take immediate action, but instead waited until three weeks after the filing of Jones’s motion to dismiss, more than two months after the filing of her answer, and fourteen weeks after the statute of limitation expired, to make their first effort to locate Jones. Even after the skip tracer provided a correct address within one day of the Whites’ request, Jones was not served until 120 days after the statute of limitation expired. “A finding of laches on a lapse of as little as 63 days between expiration of the limitation period and service has been upheld by this court.” Id. at 620. The trial court did not abuse its discretion in concluding that the Whites did not use reasonable diligence to pursue service.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       In fact, the Whites did not succeed in serving Jones until after entry of the trial court’s order granting the motion to dismiss.

       Although Jones also asserted as an affirmative defense this failure to bring the action by next friend, the Whites never amended their complaint. See generally OCGA § 9-2-28.

       In their brief on appeal, the Whites state for the first time the birth dates of Malcolm and Marcus White. But “[flactual assertions in appellate briefs which axé not supported by evidence in the record cannot be considered in the appellate process.” (Citations and punctuation omitted.) Robinson v. Stokes, 229 Ga. App. 25, 27, n. 1 (493 SE2d 5) (1997).


text:
    A00A0791.
    A00A0894.
    HUNTER v. THE STATE. LEE v. THE STATE.
    (536 SE2d 157)
   Andrews, Presiding Judge.

Larry Dean Hunter and Eric Eugene Lee were jointly indicted, tried, and found guilty of possession of cocaine with intent to distribute. In their appeals, consolidated for consideration in this opinion, Hunter and Lee claim that the evidence used to convict them was obtained as the result of an illegal detention in violation of the Fourth Amendment and that the trial court erred by denying their motions to suppress on this ground. Finding no error in the denial of the motions, we affirm the judgments of conviction.

Based on reliable information that illegal drug activity was taking place in an apartment located in a known drug trafficking area in the City of Springfield, police obtained a no-knock warrant to search the apartment. When a team of police officers arrived at the apartment to execute the search warrant, they saw a car parked in front of and facing the ground floor apartment. The officers saw three men, two of whom were Hunter and Lee, standing near the front of the car with the hood of the engine compartment raised. In that position, the men were standing about five or six feet from the apartment door on a sidewalk in front of the apartment. As the officers approached the apartment to enter on the search warrant, one of the officers, who was assigned to cover the area in front of the apartment while the other officers entered, ordered all three men to lie prone on the ground with their hands visible. The officer, who was armed with a shotgun, testified that he detained the three men in this position because they were located close to the door of the apartment where a potentially dangerous entry and search were taking place and that it was necessary for the safety of the entering officers and for the safety of the three men. The men were detained on the ground while the other officers entered the apartment and determined that no one was inside — a period of no more than one minute.

After the officers determined no one was inside, the three men were allowed to stand, and officers asked them for identification and if they had any connection to the apartment about to be searched. Lee informed the officers that his girlfriend lived in the apartment and that he occasionally stayed there. Simultaneously, an officer exiting the apartment noticed a matchbox on the ground near the front of the car where Hunter and Lee were standing. The officer picked up the matchbox, opened it, and found that it contained what appeared to be five or six rocks of crack cocaine. At that point, the officers detained the three men for possession of the apparent cocaine. Immediately thereafter, another officer saw a purple “Crown Royal” liquor bag lying on the engine inside the open engine compartment adjacent to where Hunter was standing. The officer picked up the bag, opened it, and found that it contained a bottle containing eight rocks of what appeared to be crack cocaine, along with Hunter’s driver’s license, and some money. After being arrested, Lee gave police a statement admitting that the substance in the matchbox was his cocaine that he planned to sell, and Hunter also gave police a statement admitting that he owned the apparent cocaine in the “Crown Royal” bag and planned to sell it. The suspected cocaine in the matchbox and the “Crown Royal” bag was tested at the State Crime Lab and proved to be cocaine.

1. Prior to trial, Hunter and Lee filed identical motions to suppress evidence of the cocaine and the subsequent statements on the ground that this evidence was the tainted product of an illegal detention in violation of the Fourth Amendment, which commenced when the officer ordered them to lie on the ground at gunpoint while other officers entered the apartment on the no-knock search warrant. After a hearing on the motions, the trial court concluded the detention was valid and denied the motions.

Although the trial court properly denied the motions to suppress, we conclude that the validity of the brief initial detention at gunpoint while the officers entered the apartment is not the dispositive issue in this case. The issue raised by the motions to suppress was whether the cocaine found by the officers and the subsequent statements given to the officers were the product of the initial detention, which Hunter and Lee claim was illegal. We find they were not connected to the initial detention.

The evidence shows that, when the officers arrived at the apartment and saw Hunter and Lee standing on the sidewalk a short distance from the apartment door, they had no reason to suspect that they were engaged in any illegal activity. They were detained on the ground at gunpoint, not because they were suspected of illegal acts, but because the officers, who were about to make a potentially dangerous entry through the apartment door pursuant to the no-knock search warrant, believed it was necessary to protect themselves and Hunter and Lee. This detention lasted for less than a minute, the period of time it took the officers to enter the apartment and determine that no one was inside. Once this determination was made, the initial detention ended, and Hunter and Lee were released from being detained on the ground at gunpoint. Although the officers still had no basis to believe the men were involved in criminal activity at that point, they asked Hunter and Lee to state their names and any connection they might have to the apartment about to be searched. Lee informed the officers that he stayed there occasionally with his girlfriend. This questioning was a “first level” police-citizen encounter which did not implicate the Fourth Amendment. State v. Burks, 240 Ga. App. 425, 426 (523 SE2d 648) (1999). While this “first level” questioning was taking place, an officer found the matchbox on the ground containing cocaine. The officer who spotted the matchbox was not searching for contraband to incriminate Hunter and Lee. He was walking out of the apartment while executing the search warrant in a place where he was entitled to be when he saw the matchbox lying on the ground a few feet in front of the apartment. Under these circumstances, the matchbox was abandoned property to which the Fourth Amendment rules regarding search and seizure did not apply. Edwards v. State, 239 Ga. App. 44, 45 (518 SE2d 426) (1999). Accordingly, the officer found the cocaine in the matchbox by lawful means.

Thus, finding the abandoned cocaine on the ground near Hunter and Lee was unconnected to the initial detention at gunpoint. It provided the officers with an independent reason to detain them in connection with the cocaine and ultimately led to the discovery of the additional cocaine in the “Crown Royal” bag. Whether finding the cocaine in the matchbox provided only reasonable suspicion of criminal activity to detain and question the men about the cocaine under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), or probable cause to detain and arrest was not raised by the motions to suppress and therefore is not an issue on appeal.

Furthermore, neither Hunter nor Lee claims that the initial detention, which they claim was illegal, coerced them into abandoning the cocaine, and there is no evidence to support such a claim. See Edwards, 239 Ga. App. at 45. To the contrary, the officer who initially detained Hunter and Lee at gunpoint testified that he observed them for a few seconds prior to the detention and during the detention and saw no attempt by them to discard or abandon anything. Since the evidence shows that Hunter and Lee did not abandon anything during the initial detention, there was no basis to assert that the cocaine found in the matchbox should have been suppressed because it was abandoned during the coercive influence of an illegal detention. Milton v. State, 232 Ga. App. 672, 677 (503 SE2d 566) (1998).

Because there is no basis to conclude that the cocaine found by the officers or the subsequent statements given by Hunter and Lee were the product of the brief initial detention at gunpoint, the trial court did not err by denying the motions to suppress. Even though the trial court based its ruling on the conclusion that the initial detention was valid, an issue we find unnecessary to address, we affirm because the ruling was right for other reasons. Benton v. State, 240 Ga. App. 243, 245 (522 SE2d 726) (1999).

Decided June 13, 2000

Kicklighter & Persse, Robert L. Persse, for appellant (case no. A00A0791).

Ronald K. Thompson, for appellant (case no. A00A0894).

R. Joseph Martin III, District Attorney, Tony A. May, Assistant District Attorney, for appellee.

2. The evidence, as set forth in Division 1, supra, was sufficient to allow a rational trier of fact to conclude that Hunter and Lee were guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgments affirmed.

Ruffin and Ellington, JJ., concur.

       Although the validity of the detention of Hunter and Lee at gunpoint is not the dispositive issue in this case, we agree with the trial court that this brief detention for about one minute while the officers entered and cleared the apartment was justified by the need to protect the safety of the officers and Hunter and Lee. We recognize that, standing on the common sidewalk outside the apartment, Hunter and Lee were not in the apartment to be searched, nor were they within the curtilage of the apartment. Bayshore v. State, 208 Ga. App. 828, 829 (432 SE2d 251) (1993). Accordingly, the officers were not authorized to detain and search them in conjunction with executing the search warrant for the apartment, and no such search occurred here. Id.; compare OCGA § 17-5-28 (1). Nevertheless, applying the reasonableness standard embodied in the Fourth Amendment to both the character of the brief detention and its justification, we find that it was reasonable under the facts of this case. See Terry v. Ohio, 392 U. S. 1; Michigan v. Summers, 452 U. S. 692 (101 SC 2587, 69 LE2d 340) (1981); People v. Glaser, 11 Cal.4th 354 (902 P2d 729) (1995).


text:
    A00A0830.
    COROUTHERS v. DOE.
    (536 SE2d 165)
   Andrews, Presiding Judge.

Linda Corouthers brought a John Doe action to recover for personal injuries sustained when she walked into an object allegedly protruding from the back of a parked truck. After determining that her insurance policy did not provide coverage for this incident within the ambit of OCGA § 33-7-11 (b) (2), the trial court awarded summary judgment to Colonial Insurance Company of California (Colonial). Contending the incident was an insured event, Corouthers appeals. We disagree and affirm.

In reviewing the grant of summary judgment as here, we apply a de novo standard of review and consider the evidence with all reasonable inferences and conclusions in favor of the party opposing summary judgment. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996). When so viewed, the evidence established that Corouthers parked her vehicle 12 spaces down from the entrance of a Winn Dixie store. On a sunny day, at about 1:00 p.m., having completed her shopping, Corouthers proceeded toward her car, followed by a bag boy pushing her grocery cart. Nearly halfway there as she was walking down a row of parked vehicles, “[t]he object just struck me across the face.” Corouthers testified that she never saw the object and never knew for certain what had cut her face. Corouthers immediately called for help from a friend, Berlyndia Hodges, whom she had just walked past. According to Hodges, Corouthers was covering her face with her hands to staunch the flow of blood and was “[standing beside a truck with a long iron pole hanging off the truck.” Hodges noticed a single pole “sticking out several feet.” She testified that the tailgate was up and the pole was resting on top of the tailgate. Hodges provided immediate aid to the bleeding Corouthers and drove her to a nearby hospital. Corouthers never returned for the groceries. No evidence indicates that any note or notice was left on the truck. Neither woman wrote down the license of the vehicle.

The owner of the truck and the pole or the protruding object was never established, so Corouthers sued John Doe under OCGA § 33-7-11 (b) (2) to recover from her uninsured motorist carrier, Colonial. In her lawsuit, Corouthers alleged that she “was struck across her face and nose by boards protruding from ‘John Doe’s’ vehicle.” Among other defenses, Colonial claimed that Corouthers “did not sustain damage to her person as a result of physical contact with a motor vehicle as required to recover uninsured motorist benefits.”

In moving for summary judgment, Colonial argued that to recover under the uninsured motorist statute, “actual physical contact must have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured.” OCGA § 33-7-11 (b) (2). In granting summary judgment to Colonial, the trial court found that Corouthers’ contact with the object was not enough to trigger coverage because the object was not an integral part of the vehicle.

1. Corouthers contends the trial court erred in finding that her claim did not fall within the coverage required by OCGA § 33-7-11 (b) (2). She argues that she satisfied Part II, “Uninsured Motorist Coverage,” of her policy which requires that “[t]he bodily injury must be caused by accident and arise out of the ownership, maintenance or use of an uninsured motor vehicle.” Relying upon Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga. App. 562, 564 (1) (236 SE2d 550) (1977), she asserts that the vehicle need not exert any physical force upon the instrumentality which was the immediate cause of the injury.

Corouthers overlooks the fundamental fact that Part II of her policy was explicitly replaced in its entirety by a “Georgia Uninsured Motorist Endorsement (C494).” In the context of “bodily injury,” since this endorsement makes no mention of the language she extracted from Part II of her policy, her reliance upon cases interpreting the meaning of “use” of a vehicle and “arise out of” is misplaced.

Instead, subsection (3) (c) of the uninsured motorist endorsement at issue defines an “[u]ninsured motor vehicle” to mean “a land motor vehicle or trailer of any type: . . . which is a hit-and-run vehicle whose operator or owner is unknown and which hits or causes an accident resulting in bodily injury or property damage without hitting: (i) you. . . .” (Emphasis in original.) The endorsement further provides, “[i]f there is no physical contact with the hit-and-run vehicle the facts of the accident must be corroborated by competent evidence of any eyewitness other than a person making a claim under this or any similar coverage.”

Even assuming that the incident occurred precisely as alleged, the dispositive issue is whether a pedestrian injured as a result of walking into a stationary object located in the back of a parked vehicle can obtain uninsured motorist benefits. Having reviewed this policy, we find she cannot. See Marsh v. Chrysler Ins. Co., 169 Ga. App. 639, 640 (1) (314 SE2d 475) (1984) (when an insurance contract provision is clear and unambiguous, its interpretation is a matter for the court).

To avert summary judgment befalling her claim, Corouthers had to offer some proof showing the existence of: (1) a land motor vehicle or trailer; (2) which was a hit-and-run vehicle; (3) whose operator or owner was unknown; and (4) which hit or caused an accident resulting in bodily injury. But the record is devoid of any evidence that this stationary pickup truck parked within a grocery store lot was a “hit- and-run” vehicle within the meaning of this section. It is undisputed that the vehicle did not move or otherwise strike or hit Corouthers. See Melvin v. State, 225 Ga. App. 169, 171 (2) (483 SE2d 146) (1997) (OCGA § 40-6-270 imposes certain duties on the driver of any vehicle involved in an accident resulting in injury to a person). No evidence even hints that the operator or owner of the unoccupied truck was aware that someone had been injured. Nor does the record contain evidence suggesting that the vehicle and its driver “ran” or fled from the scene. See, e.g., Painter v. Continental Ins. Co., 233 Ga. App. 436, 438 (2) (504 SE2d 285) (1998) (when no physical contact made with unknown driver’s vehicle, then claim against driver of phantom vehicle must be corroborated).

Corouthers apparently walked into a protruding object, probably a section of pipe. The truck did not hit her. Instead, the physical contact occurred solely between her and an object. But under the express terms of the policy, a “hit-and-run vehicle” must cause the accident, not an object of some kind. See Cole v. New Hampshire Ins. Co., 188 Ga. App. 327, 329 (373 SE2d 36) (1988). A piece of pipe resting in a truck bed is not such an integral part or component of a vehicle so as to be deemed a “vehicle.” See Murphy v. Ga. Gen. Ins. Co., 208 Ga. App. 501 (431 SE2d 147) (1993) (no uninsured motorist coverage where corroboration requirement was lacking to support claim that pipe fell from the bed of an unknown truck striking the plaintiff’s windshield and causing him to lose control of his vehicle). Compare State Farm Fire &c. Co. v. Guest, 203 Ga. App. 711 (417 SE2d 419) (1992) (physical precedent only) (tire and rim assembly regarded as integral part of vehicle).

Decided June 13, 2000.

Smith & Jenkins, Wilson R. Smith, for appellant.

Karsman, Brooks & Callaway, Timothy J. Haeussler, for appellee.

Nor can the uninsured motorist statute save her case. See OCGA § 33-7-11 (b). Colonial’s liability, if any, is contractual, not statutory. See Walker v. United Svcs. Auto. Assn., 205 Ga. App. 693 (423 SE2d 299) (1992). In fact, the endorsement at issue appears to afford more liberal uninsured motorist coverage than required by statute. See id. (parties may contract for greater protection than mandated by statute). Further, since it is undisputed that no one saw the incident as it was occurring, Corouthers cannot comply with OCGA § 33-7-11 (b) (2) which mandates independent corroboration. Bone v. State Farm Mut. Ins., 215 Ga. App. 782, 783 (452 SE2d 523) (1994) (in the absence of actual physical contact with a vehicle, circumstantial evidence cannot supply the necessary corroboration).

2. In light of the above holding, Corouthers’ claim that a jury must resolve her case is now moot.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.


text:
    A00A0879.
    PARKER et al. v. JESTER et al.
    (535 SE2d 814)
   Andrews, Presiding Judge.

Acting as the representative of her mother’s estate and as a surviving child, Dorothy A. Jester brought suit for wrongful death and personal injuries arising from an accident in which Jester’s mother, Evelyn J. Clemons, was struck and fatally injured by a car driven by Angela M. Parker and owned by Ms. Parker’s father, Riley Parker. Naming both Parkers as defendants, the suit alleged that Angela Parker negligently drove the car and that Riley Parker negligently entrusted the car to Ms. Parker. After the applicable statute of limitation had expired, Jester dismissed the suit and refiled it within six months under the renewal provisions of OCGA § 9-2-61 (a). Jester later amended the renewed suit to add a claim against Riley Parker under the family purpose doctrine.

Both Parkers claim on appeal that the trial court erred by denying their motions for summary judgment in the renewed suit. Angela Parker claims that, because she was never served with the original suit, the renewed suit against her was barred by the statute of limitation. Riley Parker claims that the evidence of record shows that he was not liable. For the reasons which follow, we find that both Parkers were entitled to summary judgment.

1. The trial court erred by denying Angela Parker’s motion for summary judgment.

It is undisputed that Angela Parker was never served with the original suit and that the statute of limitation on Jester’s claims expired before the original suit was dismissed and renewed under OCGA § 9-2-61 (a). Because service was not perfected, the original suit against Angela Parker was void and incapable of being renewed under OCGA § 9-2-61 (a). Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994); Sparrow v. Che, 232 Ga. App. 184, 185 (501 SE2d 553) (1998). Under these circumstances, the renewal provisions of OCGA § 9-2-61 (a) did not protect the second suit against Ms. Parker from the bar of the statute of limitation. Id.

2. The trial court also erred by denying Riley Parker’s motion for summary judgment.

After a hearing on the motion, the trial court denied Mr. Parker’s motion for summary judgment on Jester’s claim that he was vicariously liable for Angela Parker’s negligence under the family purpose doctrine. The facts establish, however, that Riley Parker was not liable under this claim. A necessary precondition for application of the family purpose doctrine in this case is evidence that Angela Parker was a member of the immediate household of her father, Riley Parker. Jackson v. Reed, 229 Ga. App. 433, 435 (494 SE2d 52) (1997); Greene v. Jenkins, 224 Ga. App. 640, 641-644 (481 SE2d 617) (1997). The evidence shows that, at the time of the accident, Angela Parker was a 20-year-old adult who lived at a residence separate and apart from her father’s residence. Ms. Parker’s affidavit shows that her father gave her permission to drive the car and that she was driving it for her own purposes when the accident occurred. The loan of a car to an adult daughter not living in the immediate household with Mr. Parker does not support the imposition of vicarious liability under the family purpose doctrine. Id.; Jackson, 229 Ga. App. at 435.

Decided June 13, 2000.

McLain & Merritt, M. David Merritt, Thomas J. Melanson, for appellants.

Elizabeth Pelypenko, for appellees.

Contrary to Jester’s contention, a factual issue was not created by the fact that Angela Parker’s sister, who was a member of Mr. Parker’s immediate household, was present in the car at the time of the accident. This is not a case where family purpose liability could be predicated upon facts showing that the member of the immediate household who was given permission to drive the car was present in the car and permitted a third person to drive the car. See Phillips v. Dixon, 236 Ga. 271 (223 SE2d 678) (1976). Here, the facts show that Mr. Parker gave permission to drive the car to his adult daughter who was not a member of his immediate household.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

       At the summary judgment hearing, the trial court orally announced that it was granting summary judgment to Riley Parker on the negligent entrustment claim. However, no written order was ever entered on this ruling, and this issue is not before us on appeal.

       Although not before us on appeal because the issue was not raised by the parties or ruled on by the trial court, we note that Riley Parker was entitled to summary judgment on the family purpose doctrine claim for an additional reason. To qualify as a renewal of the original suit under OCGA § 9-2-61 (a) so as to suspend the running of the statute of limitation, the renewed suit must be substantially the same as the original suit as to the cause of action. Sheldon & Co. v. Emory Univ., 184 Ga. 440 (191 SE 497) (1937). Since Jester did not allege a cause of action under the family purpose doctrine in the original suit, the renewal provisions of OCGA § 9-2-61 (a) did not protect this claim from the bar of the statute of limitation.