text:
    77446.
    WATKINS v. THE STATE.
    (381 SE2d 45)
   Benham, Judge.

A jury convicted appellant of homicide by vehicle in the first degree (OCGA § 40-6-393 (a)); driving under the influence of alcohol (OCGA § 40-6-391); driving on the wrong side of the road (OCGA § 40-6-40); operating a motor vehicle without insurance (OCGA § 33-34-12 (b)); making a false statement (OCGA § 16-10-20); and driving without a license (OCGA § 40-5-20). The DUI conviction merged with the one for homicide by vehicle, and the trial court entered judgment on the remaining convictions, which prompted this appeal.

The facts adduced at trial showed that appellant’s pickup truck, containing appellant and his brother-in-law, Pauldo, collided head-on with another motor vehicle on a rural road in Wilkinson County, Georgia, on September 20,1987, killing Laura Hall, a passenger in the other vehicle. When the investigating officer, a state trooper, arrived at the scene, he found appellant sitting in the truck’s passenger seat, and an unconscious Pauldo hanging out the driver’s door. Appellant told the trooper that he owned the truck but that Pauldo had been driving because appellant’s license was suspended. Appellant, smelling of alcohol and unsteady on his feet, stated that he and Pauldo had been drinking beer, had gotten something to eat, and were on their way home when the collision occurred. Appellant was unable to produce proof of insurance in response to the trooper’s request. Based on appellant’s statements to the officer, Pauldo was charged with the vehicular homicide. However, further investigation led the State to conclude that appellant had been driving the truck when it collided with the other vehicle; that he had been thrown from the truck on impact; and that he had returned to the vehicle and occupied the passenger seat side so that it would appear he had not been driving when the collision occurred. The charges against Pauldo were dropped and were then filed against appellant.

1. Appellant argues that his motion for continuance should have been granted because he had not knowingly and voluntarily waived his right to benefit of counsel. See Williams v. State, 144 Ga. App. 410 (1) (241 SE2d 261) (1977).

The record in this case shows that appellant was indicted on February 22,1988, and was arraigned on April 11,1988, at which time the trial court asked appellant, who was not then represented by counsel, whether he wished to have counsel appointed. Appellant declined the offer, saying that he would retain private counsel. The State gave appellant a list of 11 witnesses at arraignment, and the trial court informed appellant that his case would be called first on the trial calendar set for the week of May 16, 1988. On April 29, the trial court, having determined that appellant had not retained counsel, appointed counsel for him. On May 10, appellant moved for a continuance, contending that there had not been a reasonable time for counsel to prepare for trial. The trial court denied the motion, finding that appellant himself had caused whatever preparation problems existed by his failure to retain counsel or seek appointed counsel before April 29. The trial was held as scheduled on May 17 and 18, 1988.

Motions for continuance are granted or denied at the discretion of the trial court and, barring an abuse of that discretion, this court does not overturn them. “ ‘There is no fixed rule as to the number of days that should, of right, be allowed counsel in a criminal case to prepare the case for trial, but the trial judge, in the exercise of his discretion to grant or refuse a continuance, has to consider the facts and circumstances of each case to determine what the ends of justice require.’ ” Hill v. State, 161 Ga. App. 346 (1) (287 SE2d 779) (1982). Absent a showing that the trial court abused its discretion, this court will not disturb the trial court’s ruling. Dasher v. State, 157 Ga. App. 664 (1) (278 SE2d 465) (1981). In the case at bar, appellant’s counsel had almost three weeks to prepare, and had appellant notified the court that he could not retain counsel, the trial court could have appointed counsel sooner than it did. The cases cited by appellant are distinguishable in that each is a case in which the attorney had only one day of preparation before trial, and under those circumstances this court reversed the denial of continuance. See Bacon v. State, 146 Ga. App. 468 (246 SE2d 475) (1978); Williams v. State, supra. The circumstances now before us certainly do not parallel those cases. The trial court did not abuse its discretion in holding the trial as scheduled. Hill v. State, supra.

2. Appellant moved for a directed verdict of acquittal as to the charge of making a false statement. The trial court denied the motion, and the appellant cites the denial as error. By stating to the officer that Pauldo had been driving the truck, when, in fact, appellant had been the driver, appellant made a false statement in a matter within the jurisdiction of a department of state government. OCGA § 16-10-20. The statute was intended to discourage the making of affirmatively false statements. The trial court did not err in its ruling.

3. The trial court denied appellant’s motion for directed verdict of acquittal on the first degree homicide by vehicle charge, and appellant cites that ruling as error. He claims that the State failed to prove that he was driving under the influence of alcohol, an essential element of the crime. Appellant’s contention is without merit. In addition to the officer’s testimony about appellant’s condition at the scene of the accident, Pauldo’s denial that he, Pauldo, had been driving the vehicle, and the uncontradicted testimony that appellant had consumed at least two or three beers, the State offered evidence at trial to show that approximately two hours after the accident a sample of appellant’s blood was taken and tested. The test results showed an alcohol content of 103 milligrams per deciliter, from which the forensic expert witness extrapolated that at the time of the accident, appellant’s blood alcohol level was .11 grams percent. There was also evidence showing that appellant had been driving on the wrong side of the road when the collision occurred. The evidence was sufficient for a rational trier of fact to find that “a causal connection existed between defendant’s violation of OCGA [§ 40-6-391] and the victim’s death and thus to find the defendant guilty beyond a reasonable doubt of the offense of homicide by vehicle in the first degree. [Cits.]” McNabb v. State, 180 Ga. App. 723 (4) (350 SE2d 314) (1986). It was therefore not error to deny appellant’s motion for a directed verdict of acquittal.

4. Appellant also contends that his motion for directed verdict of acquittal on the count charging him with operating a vehicle without insurance coverage was erroneously denied. We agree. The evidence produced at trial on this issue showed that when the investigating officer asked appellant for proof of insurance, appellant produced a. paper that had nothing to do with insurance, and did not offer any other information about his insurance coverage. The person who had sold the vehicle to appellant in May 1987 testified that he had insurance on the truck when he sold it to appellant, but that he cancelled the insurance coverage on the truck immediately after the sale. The accident occurred on September 20, 1987, approximately four months later. “That defendant did not have an insurance card . . . cannot be said to prove ipso facto that he knowingly operated a vehicle . . . without effective insurance.” Williams v. State, 181 Ga. App. 49 (2) (351 SE2d 207) (1986). Since appellant was charged with failure to have insurance coverage, (OCGA § 33-34-12 (b)), rather than failure to have proof of insurance coverage, (OCGA § 33-34-12 (a)), the evidence was not sufficient to withstand appellant’s motion.

5. During voir dire, appellant asked the group of prospective jurors whether they had any opposition to someone taking a drink and driving, although the person driving is not drunk. When some of the jurors responded affirmatively, appellant began to question them one by one, asking the first person, “The fact that someone may have had something to drink but isn’t drunk, isn’t under the influence of alcohol, and then drives, is that something that you’re going to hold against that person?” The trial court concluded that the question was a “bit too hypothetical” and called for a prejudgment of the case, and said that if appellant could ask the question some other way, the court would allow it. Appellant rephrased the question, but contends that the trial court imposed a restriction on his voir dire in violation of OCGA § 15-12-133.

The conduct of the voir dire examination of prospective jurors is within the sound discretion of the trial court, and upon review this court will reverse that judgment only in the event of manifest abuse of that discretion. Parker v. State, 172 Ga. App. 540 (2) (323 SE2d 826) (1984). Uniform Superior Court Rule 10.1 (253 Ga. 801, 823 (1985)) states that the exercise of such discretion applies to the form of the questions propounded by counsel, and that “[hypothetical questions are discouraged, but may be allowed in the discretion of the court. It is improper to examine a juror as to how he would act in certain contingencies or on a certain hypothetical state of facts. No question shall be framed so as to require a certain response from a juror which might amount to a prejudgment of the action.” The question as it was posed fell within the category of questions discouraged and prohibited by the Uniform Rules. “ ‘This court is of the opinion that the trial court did not abuse its discretion by preventing the question from being asked.’ ” Parker, supra, Division 2.

6. Appellant testified on direct examination that he used to drink, but that after the accident he had stopped drinking alcohol. During cross-examination, the State’s attorney asked him to tell the jury “why you took a drink back in that time when you drank.” Appellant’s counsel objected, saying that the question was not relevant. The trial court overruled the objection, and appellant cites that ruling as reversible error. “It is not reversible error to overrule such a general objection. [Cit.]” Weaver v. State, 179 Ga. App. 641 (6) (347 SE2d 295) (1986).

7. Appellant argues that the trial court should not have charged the jury on the statutorily-created presumptions regarding appellant’s being under the influence of alcohol (OCGA § 40-6-392 (b)) because there was no competent evidence supporting the charge, and the charge unduly emphasized the State’s version of the evidence. Appellant’s assertions are groundless. There was competent evidence regarding the amount of alcohol in appellant’s blood at the time of and shortly after the accident, through the testimony of one of the State’s expert witnesses and appellant’s medical records. See Division 3 of this opinion. Using the records, the witness had calculated what appellant’s blood alcohol level was at the time of the accident. Appellant had stipulated to the admission of the medical records containing the information and did not object to the witness’ testimony on the issue when it was offered, so he has waived the right to complain now. Cole v. State, 156 Ga. App. 6 (2) (274 SE2d 64) (1980). Nor do we find support for the claim that the trial court overemphasized the State’s version of the evidence. Our review of the charge shows that the judge merely paraphrased the statutory provision in question and did not indicate any personal preference for one party’s position over the other. No error was committed.

8. During appellant’s presentence hearing (OCGA § 17-10-2), the State called as a witness a deputy sheriff who had arrested appellant for escape and interference with government property on February 28, 1987. At the time of the presentence hearing, appellant had been indicted for the crimes but had not been tried on the indictment. Appellant objected to the use of any information regarding the incident, arguing to the effect that “a sentence based in part upon articulated consideration of other offenses, as yet untried, amounts to prescribing punishment for conduct for which there has been no conviction.” Minis v. State, 150 Ga. App. 671, 675 (258 SE2d 308) (1979), overruled in Boney v. Tims, 254 Ga. 664, 665 (333 SE2d 592) (1985). The trial court overruled appellant’s objection and heard the evidence. Appellant raises the issue on appeal, seeking a remand for resentencing. We find that remand is unnecessary. Although a portion of Minis has been overruled, the case remains good law with regard to the existence of the presumption that the trial court did not consider improper matters in fixing sentence, a presumption that can be weakened by the trial court’s failure to disavow any reliance thereon. Id. at 675. Our review of the trial court’s sentencing decision in appellant’s case revealed that the sentence was based on the fact that appellant killed a 17-year-old girl and tried to pass his responsibility for that act onto his unconscious brother-in-law; that appellant had no insurance on his vehicle and was unable to compensate the victim’s family; that he had no driver’s license and no right to drive in the state; and that throughout the trial he failed to show any sympathy for the victim and her family or to accept any responsibility for his actions. The trial court made no mention of any other reasons for the severity of the sentences that it imposed, and in the absence of any indication that it relied on the material to which appellant objected, we find the presumption to be unrebutted, and that no error was committed.

Decided February 17, 1989

Rehearing denied March 29, 1989

Jones & Geeter, Shane M. Geeter, for appellant.

Joseph H. Briley, District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Pope, J., concur.


source: Caselaw Access Project

author: Sognier, Judge. Deen, Presiding Judge,

license: Public Domain

text:
    77533.
    AGAN et al. v. THE STATE.
    (380 SE2d 757)
   Sognier, Judge.

Ramsey Agan and Rauf Sarper appeal from their convictions of bribery of public officials in violation of OCGA § 16-10-2 (a) (1).

1. We first address appellants’ enumeration on the general grounds.

(a) As to appellant Agan, the evidence adduced at trial disclosed that Agan, the Honorary Turkish Consul in Atlanta, owned a five acre parcel of land in DeKalb County on which he operated several small businesses. There was evidence that Agan wanted to construct a hotel on the property, in which he intended to provide meeting space for the local Turkish-American association of which he was an official, and that he, along with appellant Sarper, an Emory University professor, had held discussions with officials of the Emory Medical Clinic about bringing to the clinic Turkish patients who would stay at the planned hotel. After the DeKalb County Commission twice rejected his applications for a building height variance, Agan submitted a third variance application, then contacted Commissioners Robert Lanier and John Fletcher, inquiring of each official what he (Agan) could do to obtain approval of his application. Fletcher testified that after he met with Agan in May 1987 to discuss technical aspects of the hotel project, Agan attended the Commission’s June 9 meeting, and approached Fletcher in the hallway to ask for his support if the variance application came up for a vote. Fletcher testified Agan also stated he had a number of friends in the local Turkish-American association who wanted to contribute to Fletcher’s campaign, but Fletcher discouraged the idea because he was not currently campaigning for reelection. This encounter with Agan left Fletcher so “very concerned” that he contacted law enforcement officials about it.

Ten days after the commission meeting, Agan and Fletcher met again, and after pressing Fletcher for his support for the variance application, Agan presented Fletcher with four checks totalling $3,700 made out to Fletcher personally and marked “for campaign contribution.” The checks were drawn on the accounts of appellant Sarper and three other individuals, each of whom testified they wrote the checks, for which they were reimbursed by Agan, under the impression that Agan wanted the contributions to come from different people to give the appearance Agan enjoyed broad support in the Turkish community. Only two of the four, Sarper and one other, were aware of Agan’s proposed hotel, and both testified that they knew nothing about the variance application. None of the four knew Fletcher. Fletcher testified that Agan left the four checks on the desk over Fletcher’s protests that he did not even have a campaign bank account. Thereafter, at a July 6th meeting between Agan and Fletcher during which Agan reiterated his need for the variance to ensure the economic viability of the hotel project and Fletcher indicated he remained undecided about his vote on the matter, Agan presented Fletcher with a fifth check for $800 from a third party, likewise marked as a campaign contribution. The meeting, which was videotaped by investigators from the DeKalb County District Attorney’s office, showed that in response to Fletcher’s inquiry as to what Agan wanted from him, Agan stated, “I need your support,” but also said “I’m not asking for anything except I’ll assure you, the way I feel, you will be doing service to the county because where’s the tax base; and the proposed use for it will be . . . enhancing.”

Also videotaped was Agan’s meeting with Commissioner Robert Lanier on July 21, 1987, during which Agan discussed his need for a variance in order to attract a major hotel franchisor, his expected arrangements with Emory for patient referrals, and the objections raised by the other commissioners. Sarper attended this meeting, and as they were leaving Lanier’s officer Sarper handed Agan an envelope at Agan’s request, and Agan and Lanier then walked back into Lanier’s office where Agan presented Lanier with the envelope which contained Sarper’s check to Lanier for $3,000 marked “campaign contribution.” When Lanier informed Agan that he was not up for reelection for three years, Agan inquired whether Lanier “could build it up.” Lanier asked Agan what he wanted for this contribution, and Agan responded, “Nothing. Not a thing. That’s one thing I want to make clear, nothing because I appreciate what you have do[n]e for me so far previously; and anything else I can do for you and I will... be glad to do that.”

Other evidence was adduced that Agan’s proposed arrangement with Emory involved Agan bringing Turkish patients to Emory with a guaranteed payment of their bills in exchange for which Emory would discount the fees charged and pay some or all of the differential to Agan.

We are convinced, after a careful review of the evidence adduced at trial, including the videotapes of the meetings with Lanier and Fletcher, that under the standard established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), a rational trier of fact could have found the essential elements of the crime of bribery to have been established beyond a reasonable doubt in regard to Agan. Although the evidence was in conflict, resolution thereof is for the jury. Page v. State, 159 Ga. App. 344, 348 (283 SE2d 310) (1981). Bribery is a specific intent crime, requiring proof that the defendant offered money or valuables to a government official “with the purpose [or intent] of influencing him in the performance” of an official act as an essential element of the crime. OCGA § 16-10-2 (a) (1). While proof that a defendant made a campaign contribution to an elected official, even one in a position to cast a vote favorable to the defendant, is not sufficient to show a violation of OCGA § 16-10-2 because the official is “entitled” to receive such contributions, see Division 3, infra, in this case the evidence was sufficient to authorize the jury to conclude that Agan made the payments in an effort to induce a vote in favor of his variance application. See OCGA § 16-2-6; see generally Parham v. State, 166 Ga. App. 855, 856 (1) (305 SE2d 599) (1983).

The indictment charged Agan with giving payments to Lanier and Fletcher for the purpose of influencing their “vote on an application for a building height variance.” Construed to uphold the verdict, the evidence disclosed that Agan considered obtaining the variance essential to his ability to achieve a sufficient return on his investment in the property, that he sought the commissioners’ support specifically for that issue at the time he made the payments, and that he continued to present checks to Fletcher notwithstanding the latter’s protests that he was not actively campaigning. Combined with Agan’s concealment of the true source of the funds — himself—this evidence reasonably could have been considered by the jury as proof of a specific intent to bribe public officials. Further, although Agan’s variance application was not on the Commission’s agenda at the time he proffered the checks to Lanier and Fletcher, there was testimony that the matter could be brought up at any time either by the development board or a commissioner, and Agan told Lanier that another commissioner had agreed to place the application on the agenda once Agan had obtained enough commitments to ensure a favorable vote. Moreover, contrary to Agan’s contentions in his brief, evidence of agreement by the official to whom payments are made to accept the money and act as requested is not essential to proof of intent to bribe the official. See Page, supra at 347-348. Accordingly, we find no error in the trial court’s denial of his motion for directed verdict of acquittal. See generally Patterson v. State, 161 Ga. App. 85-86 (4) (289 SE2d 270) (1982).

(b) The evidence adduced as to appellant Sarper, a professor of radiology at Emory and the VA Hospital, reveals that he participated with Agan in the proposal to bring Turkish patients to Emory, although the evidence clearly shows that Sarper was not to receive any remuneration for this plan, but instead hoped to enhance his status at Emory. While he had no financial interest in the property for which Agan was seeking the variance, there was some evidence, albeit disputed, that one of the businesses operating on the property in which Sarper owned a minority interest was to be relocated in the proposed hotel. Sarper’s only direct contacts with Fletcher were two brief phone calls in which he encouraged the commissioner to support the hotel project. At the videotaped meeting between Agan and Lanier, Sarper did not join in the conversation except to state that he was present as a representative of the local Turkish-American association to indicate the Turkish community’s support for Agan’s project and to encourage Lanier to support it. Further, Sarper remained in the waiting area while Agan presented a check to Lanier. Sarper testified that he was unaware Agan had applied for a building height variance, that he wrote the checks to Lanier and Fletcher and obtained checks from two others at Agan’s request because of Agan’s desire to demonstrate his political and fund-raising clout to local politicians, and that he (Sarper) assumed the contributions were part of an effort by the national Turkish-American association to encourage lobbying at the local level.

We find the evidence insufficient to authorize a reasonable trier of fact to find the essential elements of the crime of bribery of a public official to have been established beyond a reasonable doubt as to Sarper. As discussed in section (a) of this Division, specific intent must be proved because making of a campaign contribution in an effort to influence an elected official is not sufficient proof of bribery of that official in and of itself. Sarper’s presence at the meeting between Agan and Lanier was not sufficient to prove Sarper was a party to the charged bribery. See Brown v. State, 250 Ga. 862, 864-865 (1) (302 SE2d 347) (1983). Since intent cannot be presumed, OCGA § 16-2-6, and the circumstantial evidence presented at trial failed to exclude every other reasonable hypothesis, OCGA § 24-4-6; see Brown, supra at 864-865 (1), in the absence of evidence sufficient as a matter of law to establish the specific intent required by the statute and charged in the indictment, see generally Bowman v. State, 258 Ga. 829 (376 SE2d 187) (1989), the trial court erred by denying Sarper’s motion for directed verdict of acquittal. See generally Brown, supra at 864-865 (1).

2. The contention made on appeal that OCGA § 16-10-2 (a) is unconstitutionally vague is meritless. King v. State, 246 Ga. 386, 387-388 (2) (271 SE2d 630) (1980)s.

3. We find that the trial court’s charge on the definition of “entitled” under OCGA § 16-10-2 (a) as well as the court’s failure to give either requested charges regarding the Ethics in Government Act, OCGA § 21-5-1 et seq., or an adequate substitute embodying the sole defense raised below, i.e., that the payments were campaign contributions made as part of a lobbying effort by Agan and the local Turkish-American association rather than as bribes, constituted reversible error.

The trial court charged the jury on the definition of the offense of bribery as set forth in OCGA § 16-10-2 (a) (1), which provides that “[a] person commits the offense of bribery when . . . [h]e gives or offers to give to any person acting for or on behalf of the state or any political subdivision thereof . . . any benefit, reward, or consideration to which he is not entitled with the purpose of influencing him in the performance of any act related to the functions of his office.” (Emphasis supplied.) The trial judge then stated to the jury that “the word ‘entitled’ does not have any specific or extraordinary or particular legal terminology or definition. I will charge you the word ‘entitled’ means to give a deed or title to.” With regard to the Ethics in Government Act, the court charged as follows: “A campaign contribution means a gift, an advance or deposit of money or anything of value, conveyed or transferred, for the purposes of influencing the nomination for election or election of any person for office. . . . [A] campaign contribution, as I have just defined for you, can be made directly to the candidate. . . . [U]nder Georgia Law campaign contributions can be made for use in future campaigns for elective office. . . . [I]t is not the use to which the money may be put, but it is the purpose for which the money was paid that controls.”

“[I]t is an elementary rule of statutory construction that, absent clear evidence to the contrary, words should be assigned their ordinary, logical, and common meaning. [Cits.]” Curlee v. Mock Enterprises, 173 Ga. App. 594, 600 (327 SE2d 736) (1985); see OCGA § 1-3-1 (b). In determining the ordinary signification of a word, in addition to considering dictionary or treatise definitions, courts must consider “the intention with which [the term] is used as manifested by the context and considered with reference to the subject-matter to which it relates. [Cit.]” Thomas v. MacNeill, 200 Ga. 418, 424 (37 SE2d 705) (1946).

Although we recognize that one of the definitions given to “entitle” is substantially the same as that charged by the trial court, see Black’s Law Dictionary, that same source also defines “entitle” as “[t]o qualify for; to furnish with proper grounds for seeking or claiming.” “Entitle” or “entitled” also has been defined as connoting “the granting of a privilege or right . . .; to give the right to demand or receive;... to furnish with grounds for claiming . . .; to furnish with grounds for seeking,” 30 CJS Entitle 720-721, and as “ ‘qualified.’ ” Davis v. City Council, 90 Ga. 817, 820 (17 SE 110) (1893). We construe the clear intendment of OCGA § 16-10-2 (a) as proscribing the giving or offering to a government official, with the intention of influencing the official in the performance of his duties, any benefit, reward, or consideration which he is not qualified or privileged to receive or has no grounds or right to seek, request, or receive.

Further, as OCGA § 16-10-2 (a) addresses the receipt of items of value by elected officials, we agree with appellants that it should be read in conjunction with the Ethics in Government Act, which defines political contributions and sets forth the manner in which contributions may be received and reported. See generally Thomas, supra at 424. The Act defines campaign contributions as, inter alia, an “advance or deposit of money or anything of value conveyed or transferred for the purpose of influencing the nomination for election or election of any person for office, . . . [and] other forms of payment made to candidates for office or who hold office when such fees and compensation made can be reasonably construed as a campaign contribution designed to encourage or influence a candidate or public officer holding elective office.” OCGA § 21-5-3 (6). Such contributions may be made “directly to a candidate or such candidate’s campaign committee.” OCGA § 21-5-30 (a). Accordingly, a campaign contribution, whether made to a candidate in the heat of a campaign or to encourage or influence the official after he is elected, is something which a candidate or elected official is qualified or privileged to request or receive and thus is something to which he is “entitled” within the meaning of OCGA § 16-10-2. Consequently, we hold that the trial court’s definition of “entitled,” while not wholly incorrect, was incomplete and misleading in the context of this case and could have misled the jury to appellants’ prejudice. See generally New v. State, 171 Ga. App. 392-393 (5) (319 SE2d 542) (1984).

Similarly, the trial court’s failure to give request to charge 4, which included a portion of the definition of “contribution” found in OCGA § 21-5-3 (6), as part of the charge concerning the Ethics in Government Act, or to give requests to charge 2, 3, and 8, after adjusting them to the facts of the case, was error, as those charge requests embodied appellants’ sole defense. “It is the law of this state that where there is only one defense on which a party relies, failure to instruct the jury as to the evidence supporting this defense with sufficient clarity and specificity that the jury will not only be required to pass upon it, but do so intelligently, in practicality directs a verdict against the defendant, in that the effect of the failure to charge is to withdraw and deny the defense and to that extent prejudices a defendant’s right to a fair and impartial trial. [Cits.]” Dinnan v. State, 173 Ga. App. 191, 195 (325 SE2d 851) (1984). Given the evidence adduced during trial and the scope of appellants’ charge requests, read as a whole the court’s charge to the jury failed to inform them fully as to an essential element of the alleged crime or to explain appellants’ defense and the evidence supporting it with sufficient clarity. Failure to so charge constitutes reversible error. See generally Dinnan, supra at 194-196 (1); New, supra at 392-393 (5).

4. It is also contended that the trial court erroneously permitted the admission into evidence of $7,500 in cash obtained when Lanier and Fletcher, at the direction of the district attorney, cashed the checks Agan had given them. The record reveals that as each payment to a commissioner was discussed by a witness, first the check was admitted into evidence, and then the State submitted the cash received by the witness upon cashing the check. The currency was displayed to the jury and used by the district attorney during closing argument. Although the State contends this enumeration has been waived because of the failure to interpose timely objection, we will address it because the same issue is likely to arise at retrial.

We find no merit in the State’s argument that the currency was relevant to prove the commissioners had received something of value, as “[a] check, executed and delivered, is a contract in writing by which the drawer contracts with the payee that the bank will pay to the payee therein the amount designated on presentation [cits.],” Bailey v. Polote, 152 Ga. App. 255, 256 (1) (262 SE2d 551) (1979), and thus constitutes “consideration” within the meaning of OCGA § 16-10-2. See Whitfield v. State, 159 Ga. App. 398, 400 (5) (283 SE2d 627) (1981). To the extent that there was any question as to whether the checks would be honored upon presentation, that fact could have been established either by testimony from bank officials or by testimony by Lanier and Fletcher that they were able to cash the checks. Further, we agree that admission of the currency into evidence and the manner in which it was displayed to the jury were highly prejudicial and inflammatory, and thus find its admission was error. See generally Tuggle v. State, 149 Ga. App. 634, 635 (3) (255 SE2d 104) (1979).

5. The trial court ruled that appellants were not entitled to a hearing on their motion to dismiss for selective prosecution. In support of this motion, appellants presented evidence that dozens of other real estate developers had made campaign contributions to county commissioners, including Fletcher and Lanier, while zoning matters concerning the developers’ properties were under consideration by the commission, and also presented affidavit testimony that the county commission chairman had used a derogatory ethnic term in referring to Agan after a debate on a variance application filed by Agan. The trial court held that appellants were not entitled to a hearing on their asserted defense of selective prosecution because they had failed to establish a prima facie case.

“In order to prevail in a selective prosecution defense, a defendant must meet the heavy burden of (1) making a prima facie showing that he has been singled out for prosecution although other similarly situated persons who have committed the same acts have not been prosecuted; and (2) demonstrate that the government’s selective prosecution was unconstitutional because actuated by impermissible motives such as racial or religious discrimination. [Cit.]” United States v. Silien, 825 F2d 320, 322 (11th Cir. 1987); see Sabel v. State, 250 Ga. 640, 643 (4) (300 SE2d 663) (1983), overruled in part on other grounds, Massey v. Meadows, 253 Ga. 389, 390 (321 SE2d 703) (1984). However, although a defendant must satisfy this two-prong test to sustain a defense of selective prosecution, to be entitled to an evidentiary hearing on a selective prosecution claim a defendant need only present evidence sufficient to establish a “ ‘colorable entitlement’ ” for the claim, or “sufficient facts ‘to take the question past the frivolous state and [raise] a reasonable doubt as to the prosecutor’s purpose.’ [Cit.]” United States v. Gordon, 817 F2d 1538, 1540 (1) (11th Cir. 1987).

After reviewing the record and the transcript of the pretrial hearing held in this case, we have concluded that the trial court, by ruling that appellants were not entitled to a hearing because they had not established a prima facie case, applied the wrong standard when determining whether appellants were entitled to a hearing on their selective prosecution claim. Although the issue is now moot as to Sarper, we have ruled that Agan is entitled to a new trial on other grounds. Accordingly, if upon retrial he renews his motion to dismiss for selective prosecution, in deciding whether to grant an evidentiary hearing the trial court is to consider only whether Agan has demonstrated a “colorable entitlement” to a selective prosecution defense, not whether he has presented a prima facie case. If Agan presents evidence sufficient to raise a “reasonable doubt” as to the constitutionality of his prosecution, see Gordon, supra at 1540 (1, 2), he will be entitled to an evidentiary hearing so that the full facts may be developed. See id.

6. Our decision in Division 1 (b), supra, makes consideration of appellant Sarper’s remaining enumeration unnecessary.

Judgments reversed.

Carley, C. J., Banke, P. J., Birdsong and Benham, JJ., concur. Pope, J., concurs in Divisions 1, 2, 3, 5, and 6, and in the judgment. Deen, P. J., McMurray, P. J., and Beasley, J., dissent.

Deen, Presiding Judge,

dissenting.

I must respectfully dissent from the majority opinion, because I believe that no reversible error occurred below and that both convictions should be affirmed.

1. The majority opinion errs in concluding that the evidence was insufficient to support Sarper’s conviction. Initially, I note that in his brief, Sarper’s argument on this issue consists solely of his adoption of Agan’s argument on the sufficiency of the evidence. As Agan’s argument is silent as to the sufficiency of the evidence to convict Sarper, pursuant to Rule 15 (c) of our court, Sarper has abandoned any enumeration of error regarding this point. Nevertheless, even considering the merits of this contention, sufficient evidence authorized a rational trier of fact to find Sarper guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The majority opinion reaches the opposite conclusion seemingly by accepting Sarper’s testimony at face value. However, plenty of circumstances shown during the trial provided sufficient basis for the jury to make an opposite finding as to Sarper’s credibility. For example, the jury could have found patently incredible Sarper’s testimony that he sat through the meeting between Agan and Lanier as they discussed the variance at length and yet had no idea what they were talking about. When asked on cross-examination about the purposes of making political contributions to the commissioners, Sarper answered, “I presume that when you make political contributions to politicians, they do something to expedite the process. Everybody knows that.” Sarper further replied, when asked if he knew that a politician will help you if you contribute to his campaign, “I have previously experienced it . . .” From these statements and circumstances, the jury could have rejected Sarper’s claim of innocence and found instead a corrupt intent. “If something looks like [a bribe], sounds like [a bribe], and acts like [a bribe], it probably is [a bribe], regardless of whether or not one uses the magic word itself.” State v. Hughes, 189 Ga. App. 671, 676 (377 SE2d 192) (1988). (Deen, P. J., dissenting.)

“Left to exercise their common-sense in their own way, the jury will generally determine correctly what is well proved and what lacks further support . . . What shall come to the jury as evidence, is for the court. What it is worth when it arrives, is for the jury . . . The judge may well assume that they have a fair aptitude for their share of the common business.” Moughon v. State, 57 Ga. 102, 106-107 (1876).

2. The trial court’s jury charge on the definition of “entitled” under OCGA § 16-10-2 (a) was incomplete and somewhat confusing. Even the State concedes that. However, I cannot agree with the majority opinion that this minor confusion misled the jury. The jury charge informed the jury of the essential elements of the offense of bribery, and the evidence certainly proved those elements. Under these circumstances, the incomplete definition of “entitled” was inconsequential and harmless error.

I also cannot agree with the majority opinion’s conclusion that the trial court erred in refusing to give the appellants’ requested jury charges on the law and definition of campaign contributions. Compar - Iison of the requested jury charges to the jury charge given by the trial court shows that the trial court did adequately inform the jury on that subject matter. Failure to give requested charges in the exact language requested where the charge given substantially covers the same principles, is not grounds for reversal. Woods v. State, 187 Ga. App. 105 (369 SE2d 353) (1988).

3. The majority opinion is in error in concluding that the admission of cash, obtained when the commissioners presented the checks given to them by the appellants, was highly prejudicial and inflammatory and reversible error. The proper resolution of this enumeration of error simply is that the appellants waived any objection at trial. The cash from the $3,000 check was specifically admitted without objection by counsel for both Agan and Sarper. When the cash from the $3,370 worth of checks was tendered, Sarper’s attorney stated that he had no objection, and counsel for Agan stated that he had his objection on the record, when there was, in fact, no objection on record. Only when the $800 cash from the check written by Mohammed Hassan to one of the commissioners was tendered, was there an objection. Counsel for Agan stated that he had the same objection, and counsel for Sarper merely objected on the grounds of relevance. Noting that there had been no objections before, the trial court admitted the cash into evidence. Under these circumstances, the appellants’ waiver of any objection is clear. Even if the only objection to this evidence were considered, the district attorney’s explanation that the cash was offered to show that the checks were good, was a sufficient showing of relevance.

Decided March 16, 1989

Rehearing denied March 29, 1989

Cook & Palmour, Bobby Lee Cook, Meals, Kirwan, Goger, Winter & Parks, P. Bruce Kirwan, Jake Arbes, for appellants.

4. Assuming, arguendo, that, as advised by the majority opinion, the appellants would be entitled to an evidentiary hearing on their selective prosecution defense upon their showing a “colorable entitlement” to that defense, it is clear that the appellants failed in this regard. In support of their motion to dismiss for selective prosecution, the appellants submitted some evidence that other real estate developers had made some campaign contributions to county commissioners while zoning matters concerning the developers’ properties were under consideration by the commission, and an affidavit in which a person recalled the county’s chief executive officer’s reference to Agan as a “g.. d.. sand nigger.”

As noted by the majority opinion, “[i]n order to prevail in a selective prosecution defense, a defendant must meet the heavy burden of (1) making a prima facie showing that he has been singled out for prosecution although other similarly situated persons who have committed the same acts have not been prosecuted; and (2) demonstrate that the government’s selective prosecution was unconstitutional because actuated by impermissible motives such as racial or religious discrimination. [Cit.]” United States v. Silien, 825 F2d 320, 322 (11th Cir. 1987). In the instant case, the appellants made no showing whatever of similarity between the other developers and themselves. Considering the fact that the county’s chief executive officer does not vote on zoning matters and does not even attend zoning meetings, and that it was the district attorney, and not the chief executive officer, who decided to prosecute the appellants for bribery, any derogatory ethnic remark attributable to the chief executive officer is irrelevant. The appellants thus made no showing of “colorable entitlement” to the defense, and the trial court properly denied both the request for an evidentiary hearing and the motion to dismiss.

5. Although the majority opinion does not address the issue because of its conclusion that the evidence did not support Sarper’s conviction, I note also that the trial court did not abuse its discretion in denying Sarper’s motion to sever. Rivers v. State, 178 Ga. App. 310 (342 SE2d 781) (1986).

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

Robert E. Wilson, District Attorney, Barbara B. Conroy, R. Stephen Roberts, Assistant District Attorneys, for appellee.


author: Carley, Chief Judge. Sognier, Judge,

text:
    77560.
    MICHAELS et al. v. KESSLER et al.
    (381 SE2d 103)
   Carley, Chief Judge.

Ed Albright brought suit against appellant-defendants, seeking to recover on three promissory notes. Appellants subsequently filed a third-party action against appellee-third-party defendants. The trial court first granted a motion to sever and then granted a motion to dismiss appellants’ third-party action. Although the trial court’s orders left Albright’s main action against appellants pending, it directed the entry of final judgment pursuant to OCGA § 9-11-54 (b) and appellants have appealed the rulings of the trial court which were adverse to them.

1. The trial court’s granting of the motion to sever the third-party action is enumerated as error.

“Under [OCGA § 9-11-42 (b)] the court has a broad discretion in the matter of granting a motion for severance of a third-party claim ... for trial separately from that on the main issue, and that discretion will not be interfered with unless it appears to have been abused. [Cit.]” Southern Concrete Co. v. Carter Constr. Co., 121 Ga. App. 573, 575 (3) (174 SE2d 447) (1970). We find no reversible error in the trial court’s granting of the motion for severance. See generally Parks v. Consolidated Freightways, 187 Ga. App. 576, 577 (1) (370 SE2d 827) (1988).

2. The dismissal of appellants’ third-party action is enumerated as error.

“Impleader is ‘ “not a device for bringing into an action any controversy which may happen to have some relationship with it.” . . . (A) defendant connot assert an entirely separate claim against the third-party even though it arises out of the same general set of facts as the main claim. There must be an attempt to pass on to the third-party all or part of the liability asserted against the defendant (but not to tender the third party as a substitute defendant). [Cit.]’ [Cits.]” (Emphasis supplied.) Knapp v. Lolley, 177 Ga. App. 786, 787-788 (341 SE2d 306) (1986).

In Count I of their third-party complaint, appellants sought enforcement of an independent promise to be repaid such funds as they had advanced to appellee Aegean Atlanta Associates, Ltd. (Aegean). That those funds advanced by appellants to Aegean may represent the proceeds of the promissory notes which they executed in favor of Albright shows only that Count I of appellants’ third-party claim against appellees arose out of the same general set of facts as the main claim against appellants. It does not show that appellants’ third-party claim is in any way dependent upon the outcome of the main action against them. Appellees’ liability, if any, to repay funds advanced to Aegean by appellants is separate and in no way dependent upon appellants’ liability, if any, to repay such funds as they borrowed from Albright. If appellants were otherwise entitled to prevail, they could recover on the claim attempted to be asserted in their third-party complaint against appellees even if Albright did not recover against appellants in the main action. The trial court did not err in dismissing Count I of the third-party complaint which sought to enforce a direct liability owed to appellants rather than a secondary liability for all or part of the main claim on the promissory notes. See Knapp v. Lolley, supra; Dorsey Heating &c. Co. v. C. C. Dickson, Inc., 153 Ga. App. 599, 600 (2) (266 SE2d 282) (1980); Wolski v. Hayes, 144 Ga. App. 180 (240 SE2d 720) (1977).

The remaining counts of appellants’ third-party complaint likewise fail to allege appellees’ secondary liability for the liability on the promissory notes being asserted against appellants in the main action. There was no error in dismissing these remaining counts of the third-party action.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Pope, Benham and Beasley, JJ., concur. Sognier, J., dissents.

Sognier, Judge,

dissenting.

I respectfully dissent to Division 2 of the majority’s opinion affirming the trial court’s dismissal of Count I of the third-party complaint filed by appellants Michaels, McClain and Emmco Northside, Inc., on the basis that it asserted claims that were separate and distinct from the claims alleged in Albright’s complaint against appellants. OCGA § 9-11-14 (a) provides that “after commencement of the action a defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiffs claim against him.” (Emphasis supplied.) “The underlying philosophy or rationale of [OCGA § 9-11-14] is found in [OCGA § 9-11-1], which provides that ‘(t)he provisions of this Title shall be construed to secure the just, speedy, and inexpensive determination of every action.’ . . . In expounding this policy, our courts have held that the impleader provisions are to be liberally construed to avoid multiplicity of actions, to save time and cost of reduplication of evidence and to assure consistent results from similar evidence and common issues. [Cits.]” (Emphasis in original.) McMichael v. Ga. Power Co., 133 Ga. App. 593, 594-596 (211 SE2d 632) (1974).

In my opinion, the majority’s holding results from an overly restrictive construction of third-party complaints in OCGA § 9-11-14 and fails to uphold the policy of our courts to apply liberally the provisions of the CPA. See generally Franklyn Gesner Fine Paintings v. Ketcham, 252 Ga. 537 (314 SE2d 903) (1984). Liberally construing the third-party pleadings in the case at bar, appellants have alleged that they, along with Albright and the third-party defendants, engaged in a series of complex negotiations to purchase the property constituting Aegean’s main asset. The negotiations proceeded in the shadow of pressing financial concerns related to the loans securing the subject property. Appellants alleged that Emmco was formed to purchase the interests held by the limited partners in Aegean on behalf of Albright, the individual appellants and certain others not involved in this appeal. After an oral agreement was reached with the limited partners but as foreclosure was threatened by Aegean’s creditor, Albright agreed to provide funds to pay Aegean’s outstanding debts. According to appellants, all the parties were fully aware that the monies, which are now the subject of Albright’s suit against appellants, were funded by Albright to protect the property as negotiations continued with the limited partners. Subsequently, appellants discovered that the limited partners had entered into an agreement with another party regarding the sale of the property and refused to acknowledge that the sales proceeds could be used by Aegean to repay the funds appellants had obtained from Albright to pay Aegean’s obligations, despite the fact that the expenditure of those funds had increased the property’s value. That agreement was blocked by Aegean’s general partners and this litigation shortly ensued.

In Count I of their third-party complaint, appellants asserted that the monies obtained from Albright were used for the benefit of Aegean and that appellants acted “in good faith with the understanding and expectation that such funds would be repaid by Aegean,” thereby claiming that “in the event [appellants] are found liable to [Albright] for any sums due under the three notes as set forth in the Complaint, then [Aegean] is liable to them for such amounts.” (Emphasis supplied.) Appellants are not asserting a claim against the third-party defendants which “just happened” to have some relationship with the main claim. Appellants are attempting to pass on to the third-party defendants all or part of the liability asserted against them by Albright. Thus the situation in Knapp v. Lolley, 177 Ga. App. 786 (341 SE2d 306) (1986), cited by the majority, in which the plaintiff filed a damage claim against the defendants (based on wrongful death in an automobile collision) who in turn impled several parties for post-collision damages (based on those parties’ forgery of the plaintiff’s signature on a release document), is inapposite to the case sub judice. Rather, appellants seek to recover sums paid out for the benefit of the third-party defendants should appellants be found liable to the plaintiff who provided the sums. Although the facts of the case sub judice, when fully developed, might have revealed, as the majority asserts, that the third-party claim is not dependent upon the outcome of the main claim, “ ‘ “[t]he allegations of the third-party complaint need not show that recovery is a certainty; the complaint should be allowed to stand if, under some construction of the facts which might be adduced at trial, recovery would be possible.” . . .’ [Cits.]” McMichael, supra at 595-596 (2). Since secondary liability can be established by way of indemnity, subrogation, contribution, express or implied warranty, “and ‘the like,’ ” id. at 594, see also Smith, Kline & French Lab. v. Just, 126 Ga. App. 643, 649 (191 SE2d 632) (1972), and since appellants “ ‘may’ ” establish a right under the facts above to enforce the same liability against the third-party defendants as is being asserted against appellants in the main case, McMichael, supra; Knapp, supra at 787, appellants’ third-party action can be maintained under OCGA § 9-11-14 (a). McMichael, supra at 595 (1).

Decided March 17, 1989

Rehearing denied March 29, 1989

Johnson & Montgomery, Harmon W. Caldwell, Jr., Harry W. MacDougald, for appellants.

Powell, Goldstein, Frazer & Murphy, William G. Leonard, for appellees.

Therefore, giving a liberal construction to appellants’ third-party pleadings, see Benson Paint Co. v. Williams Constr. Co., 128 Ga. App. 47, 49 (1) (195 SE2d 671) (1973), I would find that the trial court erred by granting the limited partners’ motion to dismiss appellants’ third-party complaint insofar as Count I of that complaint is concerned.


author: Pope, Judge.

text:
    77568.
    SOUTHERN PATRICIAN ASSOCIATES v. INTERNATIONAL FIDELITY INSURANCE COMPANY.
    (381 SE2d 98)
   Pope, Judge.

Appellant Southern Patrician,Associates (Southern) argues that the trial court erred in granting appellee International Fidelity Insurance Company’s (IFIC) motion to stay arbitration.

Southern was the owner of a construction project to renovate Roswell Mall. Southern engaged C. M. Systems, Inc. (C. M.) to act as the general contractor on the project. In turn, C. M. subcontracted with Construction Concepts d/b/a R & M Mechanical, Inc. (R & M). The contract between Southern and C. M. required C. M. to obtain a surety bond for its performance. The subcontract between C. M. and R & M also required that R & M get a surety bond for its performance. Appellee IFIC supplied this surety bond.

Before completing work under the general contract, C. M. went into bankruptcy. C. M.’s surety company undertook C. M.’s rights and obligations under the contract and assigned all such rights to Southern. In time, Southern terminated R & M for non-performance and looked to IFIC to ensure the completion of the work under the terms of its surety bond with R & M. When IFIC failed to respond, Southern completed the work itself. Southern then filed an arbitration action against IFIC. Southern claims the right to arbitration arises from C. M.’s contract which provides for arbitration of all disputes arising from the “contract document.” The subcontract between C. M. and R & M incorporated the arbitration provision. The surety bond between IFIC and R & M incorporated the entire subcontract by reference and named C. M. as the obligee.

IFIC argues that it is not obligated to arbitrate on two grounds. First, the right-of-action clause in the surety bond states that no right of action accrues on the bond except for the use of the obligee or “the heirs, executors, administrators or successors of the [o]bligee.” Because earlier in the bond the parties had bound “themselves, their heirs, executors, administrators, successors and assigns, . . . .” IFIC argues that the term “successors” as used in the right-of-action clause cannot include the term “assigns.” IFIC also argues that it cannot be forced into arbitration because there is no written arbitration agreement between it and Southern, and that the arbitration clause refers only to “contract documents,” not to a surety bond. Held:

We affirm. The surety contract at issue is but one page. In such a short document, we find it highly unlikely that the drafter would include the phrase “successors and assigns” in the general obligation clause by which IFIC and R & M bind themselves, and then use the term “successors” alone in the right-of-action clause and mean the same thing. We do not agree with Southern that the term “successors” is to the term “assigns” as fruit is to apples.

“[The term ‘successor’] means, ordinarily in the case of a corporation, another corporation which by a process of amalgamation, consolidation, or duly authorized legal succession has become invested with the rights and has assumed the burdens of the first corporation.” Hanna v. Florence Iron Co., 118 NE 629, 631-632 (N. Y. 1918). “[A] legal assignment is a transfer or setting over of property, or of some right or interest therein, from one person to another, and unless in some way qualified, it is properly the transfer of one whole interest in an estate, chattel, or other thing.” (Punctuation and citation omitted.) Hunter-Wilson Distilling Co. v. Foust Distilling Co., 84 FSupp. 996, 1000 (M.D. Pa. 1949). Clearly, the words “successors” and “assigns” have different meanings.

Decided March 16, 1989

Rehearing denied March 29, 1989

Smith, Gambrell & Russell, Peggy J. Mevs, Leland A. Cook, for appellant.

Hansell & Post, R. Dal Burton, David M. Monde, for appellee.

We find that the surety contract is unambiguous. Therefore, the liability of the surety cannot be extended by implication or interpretation. Houston Gen. Ins. Co. v. Brock Constr. Co., 241 Ga. 460 (2) (246 SE2d 316) (1978).

The decision of the trial court to stay arbitration was correct. The surety contract specifically excludes Southern, as assignee of the obligee, from a right of action on the contract.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

       In Hanna, the court distinguished “successors” and “assigns” to hold that in a contract to sell to the buyer, “its successors and assigns” the seller is not required to deliver on the credit of the assigns.


text:
    77648.
    RUCKER v. THE STATE.
    (381 SE2d 91)
   Pope, Judge.

Appellant was convicted of possession with intent to distribute heroin and was sentenced to serve twenty years. In this out-of-time appeal granted by the trial court, appellant challenges the trial court’s refusal to suppress the evidence obtained in a search of appellant’s luggage and appellant also raises the general grounds.

1. On May 3, 1978 Special Agent Paul Markonni observed passengers deplaning from a Delta flight from Los Angeles. At that time, Markonni knew Los Angeles was the primary source city for the distribution of brown heroin in the United States. Markonni’s attention was drawn to appellant when he saw appellant asking a Delta employee about his connecting flight to Knoxville. Markonni noticed that the ticket did not have a baggage claim check attached and that appellant had no hand luggage.

Markonni went to the gate for the flight to Knoxville, identified himself as a police officer to the Delta employee and asked to see appellant’s ticket. He learned it was in the name of James White, that it was a one-way ticket and that it had been paid for in cash. The callback number on the ticket appeared to be that of a hotel. Markonni called the number and learned that it was the La Casa Motor Inn in Los Angeles. The extension on the number was 106. Markonni asked the desk man if the hotel had rented a room to James White recently; he was told there had been no one by that name, rather, room 106 had been rented to a Rondal Rucker (appellant) of Detroit. Before being stationed in Atlanta, Markonni had worked for the Drug Enforcement Agency in Detroit and knew from his experience there that appellant was a significant heroin dealer. However, he had never actually seen appellant. While Markonni was doing this telephone check there was no surveillance of appellant.

Markonni, wearing casual clothes and displaying no weapon, approached appellant, who was standing at a vending machine. Markonni identified himself as a police officer and asked appellant if he would mind talking to him. Appellant agreed. Markonni noticed that appellant wore a necklace with a diamond pendant forming the initials “RR.” Markonni asked appellant his name and was told “James White.” He asked appellant for his ticket and saw that it was in the name of James White and that there were staple holes where the baggage claim check would normally be. He asked appellant for identification and appellant produced a Michigan driver’s license in the name of James White. Appellant denied that he had any luggage and also denied having anything else in his wallet with his name on it in spite of Markonni’s observation that the wallet was bulging with other items of obvious identification. At this point, Markonni arrested appellant for giving a false name to a peace officer.

Markonni then arranged with Delta to have appellant’s luggage detained. Appellant refused to give consent to search his luggage. Markonni then obtained a search warrant from a Fulton County superior court judge and discovered heroin in the suitcase.

Appellant challenges the admission of this evidence on several grounds. We will deal with each in turn. Appellant first argues that in 1978 the use of the drug courier profile was still in its “experimental” phase and that appellant’s arrest must be viewed from the legal perspective of 1978. We do not agree. An appellate court applies the law as it exists when the case is before it. Rylee v. State, 184 Ga. App. 401 (361 SE2d 546) (1987).

Appellant next argues that Markonni’s stop of appellant exceeded the scope permitted by Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968) and United States v. Mendenhall, 446 U. S. 544 (100 SC 1870, 64 LE2d 497) (1980). We do not agree. In Bothwell v. State, 250 Ga. 573 (300 SE2d 126) cert. denied, 463 U. S. 1210 (1983), our Supreme Court did a comprehensive review of the law in this area. In Division 4, it noted the case of United States v. Berry, 670 F2d 583 (5th Cir. 1982), in which that court recognized the validity of the drug courier profile as an administrative tool to guide officers toward individuals on whom they should focus attention to determine whether a basis exists for specific and articulable suspicion that the person under scrutiny is smuggling drugs. This is the manner in which the profile was used in the présent case. By the time Markonni approached appellant, he had reason to believe that appellant was traveling under a false name from the information he learned from the hotel. Moreover, he learned from the hotel that appellant, a known drug dealer had stayed in the room listed as the call-back number on the ticket in James White’s name. Markonni estimated the time elapsed from the moment he first spoke to appellant to when he arrested him was a minute and a half. We find that the stop of appellant was permissible. Verhoeff v. State, 184 Ga. App. 501 (2) (362 SE2d 85) (1987); see United States v. Pulvano, 629 F2d 1151 (5th Cir. 1980).

There is no merit to appellant’s contention that Markonni lacked the power to arrest appellant for giving a false name to a law enforcement officer. The law (now OCGA § 16-10-25, formerly Code Ann. § 26-2506) is not written in terms of misleading only law enforcement or peace officers of this state, but also applies to any law enforcement or peace officer. See OCGA § 16-1-3(11), formerly Ga. Code Ann. § 26-401 (k) and State v. Roulain, 159 Ga. App. 233 (283 SE2d 89) (1981). From what Markonni had learned before talking with appellant and what he observed in his conversation with appellant, he had probable cause to believe appellant had given him a false name. Because the crime was committed in his presence, Markonni was entitled to arrest appellant as a private citizen. Williams v. State, 171 Ga. App. 807 (1) (321 SE2d 386), cert denied, 469 U. S. 1191 (1984).

There is also no merit to appellant’s argument that Markonni improperly seized appellant’s luggage. After appellant’s arrest, a baggage claim check was found in his wallet, and agents arranged with Delta to get the bag. Such a detention of the luggage, without search, is permitted. Mooney v. State, 243 Ga. 373 (1) (254 SE2d 337) (1979). Finally, the search warrant issued by the superior court judge was not defective. As a federal officer, Markonni was permitted by Rule 41 of the Federal Rules of Criminal Procedure to apply to a state judge for a search warrant.

2. We find that the evidence adduced at trial was sufficient to enable a rational trier of fact to find appellant guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.

Decided March 14, 1989

Rehearing denied March 29, 1989.

Alice C. Stewart, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, R. Andrew Weathers, Assistant District Attorneys, for appellee.


author: Benham, Judge.

text:
    77651.
    TREADAWAY v. THE STATE.
    (381 SE2d 43)
   Benham, Judge.

Appellant was convicted of two counts of aggravated sodomy against his pre-teenaged stepdaughter. He appeals from the denial of his motion for new trial, raising three enumerations of error. We affirm.

1. Appellant complains that his character was impermissibly placed in issue when evidence was introduced at trial that he physically abused the victim’s brother and her mother. The testimony about which he complains was that appellant had beaten his wife, fractured three of her ribs, blackened both of her eyes, and pulled a gun on her, and that such treatment was one of her reasons for running away from him. Appellant cannot be heard to complain about the testimony in question, since his attorney elicited that testimony while cross-examining the witness, before the State raised the issue during the redirect examinations to which he objects. Where counsel elicits testimony unfavorable to her client, she will not be heard to object to it. Cole v. State, 156 Ga. App. 6 (2) (274 SE2d 64) (1980). Compare Woods v. State, 233 Ga. 495 (2) (212 SE2d 322) (1975), in which the trial court instructed the jury to disregard a witness’ unfavorable, unresponsive answer to a question when defense counsel called it to the trial court’s attention by moving for a mistrial at a time the remark was initially made. As for the remark made on direct examination about appellant’s having beaten the victim’s brother, the trial court sustained appellant’s objection to the testimony, and neither side pursued the matter at that time. The later testimony about the beating was properly admitted to cross-examine appellant and attempt to impeach his testimony that his means of punishing the children was to “take away privileges.” Middlebrooks v. State, 184 Ga. App. 791 (1) (363 SE2d 39) (1987). We find no error.

2. At trial, witnesses for the State testified as to out-of-court statements the victim had made to them about appellant’s sexual misconduct toward her. The victim also testified, corroborating the other witnesses’ testimony. Appellant contends that the witnesses’ recounting of the victim’s prior statements was inadmissible hearsay and improper bolstering. We disagree. The testimony was admissible as provided for by statute (under OCGA § 24-3-16) and case law (Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985)). Moreover, “inquiry as to impermissible bolstering no longer is necessary following Cuzzort, supra. [Cit.]” Richardson v. State, 256 Ga. 746 (5) (353 SE2d 342) (1987). No error was committed.

Decided January 24, 1988

Rehearing denied March 29, 1989.

Cook & Palmour, A. Kristinia Connelly, for appellant.

David L. Lomenick, Jr., District Attorney, James D. Franklin, Assistant District Attorney, for appellee.

3. At the State’s request, and over appellant’s objection, the trial court charged the jury that “although force is an essential element of the offense of aggravated sodomy, the law does not require that actual physical violence be perpetrated upon a victim by an accused. Lack of resistance by the victim induced by fear of the accused may constitute the requisite force.” Appellant contends that the charge “obviated the requirement of force as an essential element of the crime charged.” Appellant’s enumeration of error has no merit. The definition of “force” that applies in rape cases also applies in aggravated sodomy cases. Richardson v. State, 256 Ga. 746 (2), supra. The force need not be actual violence, but can be an “overpowering” influence that one in a position of familial authority exerts over another, such as a stepfather exerts over his pre-teenage stepdaughter. Id. The victim in this case was ten years old when appellant, her stepfather, first made sexual advances toward her. She testified that she was afraid of him; that he had told her not to tell anyone because it was their “little secret”; and that when she did not do what he told her to do, he would beat her. This testimony “proved the presence of the element of force . . ., the child’s fear of bodily harm if she did not accede to her stepfather’s wishes.” LePan v. State, 167 Ga. App. 250 (2) (305 SE2d 858) (1983). There was no error in giving the requested charge.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


author: Beasley, Judge.

text:
    77787.
    CRAWFORD v. RANDLE.
    (381 SE2d 77)
   Beasley, Judge.

Randle sued Crawford and Malone in Fulton County for injuries which she suffered in an auto accident in Clayton County. Malone, a resident of Fulton County, filed a cross-claim against Crawford, a Clayton County resident. Defendant Crawford appeals the trial court’s denial of her Motion to Transfer and Set Aside Verdict.

In her answer to the complaint, Crawford admitted residency in Clayton County but “denies that she is subject to the jurisdiction of this court.” No answer was filed to the cross-claim which alleged jurisdiction over Crawford, but none is required, OCGA § 9-11-7 (a), and the allegations in the cross-claim stand denied. OCGA § 9-11-8 (d).

The proposed pretrial order was jointly submitted by counsel for all parties and entered by the court at the beginning of the trial. In Crawford’s outline of the case, she stated that issues for determination by the jury were “[liability as to which or both Defendants or a mixture of liability on the part of any combination of all parties including the Plaintiff.” There is no mention in the pretrial order of the claim of lack of jurisdiction over Crawford.

Crawford testified at the trial, contending that the accident was not her fault but that of co-defendant Malone, for cutting back in front of her car and causing her to run into him and him into plaintiff.

Crawford requested a charge, given by the court, that “even though a Plaintiff may sue one or more Defendants in the same action, the jury, by its verdict, can bind one and relieve another, as the evidence may authorize, one of the defendants being found liable while the other is adjudged not guilty of any negligence that proximately caused the collision.”

The jury returned a verdict in favor of plaintiff against Crawford only and in favor of Malone on his cross-claim against Crawford, on a form submitted by Crawford. Malone, the resident defendant, was not held liable. After the verdict had been examined by counsel, the jury had been excused, and the court had requested counsel for plaintiff to prepare a judgment, counsel for Crawford made an oral motion to dismiss the case and to send it to Clayton County, on the ground that the court no longer had jurisdiction of Crawford. Plaintiff and Malone contended that the issue had been waived by not being included in the pretrial order and that Crawford’s affirmative participation in the trial amounted to a waiver. The court requested a written motion, and Crawford submitted her Motion To Transfer And Set Aside Verdict.

1. All three of the enumerations deal with the court’s denial of the motion and entry of judgment against Crawford.

The only portions of the transcript submitted by Crawford in her appeal are her testimony and the colloquy between court and counsel after the verdict was returned. These reflect that she was a resident of Clayton County and that the motion to set aside and transfer was made immediately after the verdict was returned and examined by counsel.

The court’s order denying the motion and entering judgment against Crawford gave the following reasons for the denial: (1) she did not “affirmatively plead improper venue or lack of jurisdiction” prior to trial or during trial; (2) the issue was not mentioned in the pretrial order; (3) at no time during the trial or prior to verdict was the issue raised by defendant; (4) the submission by her of an alternative verdict form which allowed the jury to answer a question on the general liability of all defendants as opposed to the court’s which would have required an answer as to each defendant; and (5) the submission by defendant of her request to charge. The court concluded that these acts amounted to a waiver by Crawford of that defense and estopped her from raising it.

Art. VI, Sec. II, Par. IV of the Georgia Constitution provides that “[s]uits against . . . joint tort-feasors . . . residing in different counties may be tried in either county.” OCGA § 15-1-2 states that “lack of jurisdiction of the person [unlike jurisdiction of the subject matter] may be waived, insofar as the rights of the parties are concerned . . . .” The issue here is one of the jurisdiction of the person or venue. See generally William v. Fuller, 244 Ga. 846 (262 SE2d 135) (1979).

The only basis upon which the State Court of Fulton County could have acquired jurisdiction over Crawford’s person was by the joining of her with a resident defendant as provided by the above-quoted constitutional provision. Southeastern Truck Lines v. Rann, 214 Ga. 813, 815 (108 SE2d 561) (1959).

Addressing the court’s reasons sequentially, the court was incorrect in stating that Crawford had not asserted lack of venue and jurisdiction in her answer; she did. This was done even though at the time there was jurisdiction and venue as to her. Taylor v. Career Concepts, 184 Ga. App. 551, 552 (362 SE2d 128) (1987). “The only time the defense of lack of jurisdiction over the person of the nonresident [defendant] because of . . . nonresidency would be valid ... is in the event of a judgment in favor of the resident joint defendant .... [Cit.]” Lansky v. Goldstein, 136 Ga. App. 607, 608 (2) (222 SE2d 62) (1975); cited in Taylor, supra.

The court’s further reliance on OCGA § 9-11-12 (h) would have been misplaced even if the defense had been omitted from Crawford’s responsive pleading. “ ‘It is obvious that one can not waive a defense under CPA § 12 (h) (1) which does not exist at the time responsive pleadings are required. Furthermore, in 1974, the legislature amended CPA § 60 (d) . . . by adding “a motion to set aside shall also lie to attack a judgment based upon lack of jurisdiction over the person . . . , regardless of whether such lack of jurisdiction appears upon the face of the record or pleadings.” The effect of this amendment is to prevent waiver of the defense of lack of jurisdiction under CPA § 12 (h) (1) by allowing it to be raised in a motion to set aside under CPA § 60 (d).’ [Cits.]” Evans v. Montgomery Elevator Co., 159 Ga. App. 834, 835 (285 SE2d 263) (1981). Similarly, at the time of the entry of the pretrial order and during the trial, venue and jurisdiction of Crawford were appropriate.

While it is true that actions of the non-resident defendant or counsel can waive the defense of personal jurisdiction, with the exception of Southern Nitrogen Co. v. Manuel, 110 Ga. App. 597 (139 SE2d 453) (1964) and Davis v. Waycross Coca-Cola Bottling Co., 60 Ga App. 390 (3 SE2d 863) (1939), dealt with below, the cases so holding have all involved situations where, after the resident defendant had been released from the case, the non-resident defendant sought a ruling from the court on the merits of the case, thereby submitting to the jurisdiction of the court. Taylor, supra (resident defendant granted summary judgment, after which plaintiff moved for summary judgment against non-resident, who appeared at the hearing and argued on the merits); Harrell v. Gomez, 174 Ga. App. 8 (329 SE2d 302) (1985) (a motion for directed verdict was granted to the resident defendant, after which the non-resident moved for a directed verdict on the merits); Vanguard Ins. Co. v. Beasley, 167 Ga. App. 625 (307 SE2d 56) (1983) (summary judgment granted to resident defendant and the plaintiff as to liability of the non-resident defendant which then proceeded to trial on the issue of damages before raising the jurisdiction issue). Compare Ga. Kraft Co. v. Laborers’ Inti. Union, 170 Ga. App. 581, 587 (5) (317 SE2d 602) (1984); Long v. Bruner, 171 Ga. App. 124 (318 SE2d 818) (1984).

“Want of jurisdiction is waived when after dismissal of the resident co-defendant, the non-resident defendant invokes rulings of the court on the merits of the case.” Vanguard, supra at 626. (Emphasis supplied.) Burger v. Noble, 81 Ga. App. 759, 761 (59 SE2d 761) (1950); see generally Note, “Venue in Georgia: Problems & Proposals” 9 Ga. S.B.J. 254, 265 et seq. (1972-1973).

In Long v. Bruner, supra at 125 (1), the resident defendant was not granted judgment until the case went through this court and was reversed by the Supreme Court. “[S]uch defense [lack of jurisdiction] did not become valid in this case until the appeals process terminated following the Supreme Court’s affirmance of the grant of summary judgment to [only the resident defendant]. It was at this point that the sole resident defendant was finally discharged from liability in this action, thus removing the trial court’s jurisdiction over . . . the non-resident defendant.”

Southern Nitrogen, supra, relied upon by the trial court to support waiver and estoppel based upon Crawford’s request to charge and discussion of the verdict form, was decided before the passage of the Civil Practice Act in 1966 and at a time when former Ga. Code § 81-503 was in effect. Although not cited in the opinion, that section provided that if a defendant appeared and pled to the merits without excepting to jurisdiction, he admitted jurisdiction. The Civil Practice Act, particularly the 1974 amendment to OCGA § 9-11-60, supra, changed the procedure as to the assertion and preservation of the defense of lack of jurisdiction. The only case cited by the court in Southern for its premise that submitting a charge and arguing to the jury waived the defense was Davis v. Waycross Coca-Cola Bottling Co., supra. That case likewise was before the Civil Practice Act and its provision that lack of jurisdiction over the person or subject matter could be attacked by a motion under OCGA § 9-11-60.

Decided March 8, 1989

Rehearing denied March 29, 1989

Greer, Klosik & Daugherty, John F. Daugherty, William L. Swank II, for appellant.

A. Kenneth Secret, William N. Robbins, for appellee.

To the degree these two cases can be read to stand for the proposition that a non-resident’s defense of a case prior to the release of the resident defendant is a waiver of the defense of lack of personal jurisdiction and venue under the Civil Practice Act, they are overruled.

2. Thus, the court’s denial of the motion to set aside the verdict was error. Since the adoption of the Uniform Transfer Rules, 251 Ga. 893 et seq., pursuant to Ga. Const., Art. VI, Sec. IX, Par. I, the appropriate action when a court is presented with a motion to dismiss or set aside because of lack of jurisdiction or venue is to set aside the verdict and transfer the case pursuant to the rules, for another trial. Empire Forest Prods. v. Gillis, 184 Ga. App. 542, 544 (1) (362 SE2d 77) (1987); Edwards v. Edmondson, 173 Ga. App. 353, 355 (326 SE2d 550) (1985); Long, supra at 126 (2).

Judgment reversed and case remanded for action consistent with this opinion.

Carley, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope and Benham, JJ., concur.


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

text:
    77798.
    LAWTON v. THE STATE.
    (381 SE2d 106)
   McMurray, Presiding Judge.

Defendant appeals his conviction of the offenses of attempted armed robbery (criminal attempt to commit armed robbery), aggravated assault, and possession of a firearm during the commission of a crime. Held:

During voir dire defense counsel identified himself as a legislator and asked the panel whether any position he may have taken or statement he may have made in his role as a legislator had so offended one of them as to prevent that potential juror from giving the case sub judice his or her fair and undivided attention. There is no indication on the record that any member of the panel responded in the affirmative to this inquiry. Subsequently, during the voir dire of a prospective juror who was an assistant principal of a school, the trial court would not permit a response to defense counsel’s inquiry as to whether the potential juror would “hold it against” him because he was opposed to a school bond referendum.

Defendant’s motion for mistrial was stated as follows: “We’ve got two matters, Your Honor. The first matter, I’d like to move at this time that Defendant’s motion for a mistrial [be] based on the following grounds. The Court has severely restricted me in my voir dire. The essence of this case is going to rest on identification testimony with the showing of photo spreads. In addition to limiting my voir dire, it’s also a point that I readily realize that this is a court of law and not a political arena, but the purpose of voir dire is to allow for the selection of jurors who can decide a case fair and impartially. My question being posed about the bond referendum is because it’s a very well known in this community . . . one of the hottest issues at the present time. I’ve made my position known. A public rebuke by the Court for posing that question so embarrassed me in front of the Jury that I don’t think Mr. Lawton can now get a fair trial, based on the position ... of the jurors have for his counsel. Therefore, I move for a mistrial.”

On appeal defense counsel contends that the trial court improperly limited voir dire by depriving him of his rights to ascertain whether a juror, an assistant principal of a local school, “[held] it against him” because he took a “very public position” against a local school bond referendum issue. However, there is nothing in defendant’s motion for mistrial raising this issue which is now argued on appeal by defendant for the first time.

Defendant’s motion for mistrial, as quoted above, raises two issues. the first issue is the restriction of voir dire in connection with the issue of identification. This first issue obviously arises for the trial court’s sustaining the State’s objection during voir dire, anticipating defense counsel “asking that the jury prejudge this case and any identification [evidence] and credibility of the witness.” The second issue presented involves an alleged public rebuke by the trial court for posing the question concerning the school bond referendum. There is no issue raised as to restricting voir dire in regard to the school bond referendum.

“Grounds which may be considered on motion for new trial or on appeal are limited to those which were raised at trial. Pulliam v. State, 236 Ga. 460, 465 (224 SE2d 8); Fowler v. State, 155 Ga. App. 76 (2) (270 SE2d 297). As the issue argued on appeal was not raised before the trial court, this enumeration of error presents no question for consideration on appeal.” Proffitt v. State, 181 Ga. App. 564, 566 (2) (353 SE2d 61).

Even if defendant’s motion for mistrial is viewed as sufficient to preserve the issue presented on appeal, there was no error in the denial of defendant’s motion. Defense counsel inquired as to whether a potential juror might have a bias respecting him, arising from his actions or statements in his capacity as a state legislator. Thus, the subsequent inquiry by defense counsel regarding whether bias arose from his position on a specific issue, the school bond referendum, was repetitive. While a defendant in a criminal case has an absolute right to have prospective jurors questioned as to those matters specified in OCGA § 15-12-133, control of voir dire examination is within the sound legal discretion of the trial court, and the appellate courts should not interfere unless it is shown to have been manifestly abused. Whitlock v. State, 230 Ga. 700, 705 (5) (198 SE2d 865); Messer v. State, 247 Ga. 316, 323 (276 SE2d 15). In the case sub judice, the trial court did not abuse its discretion in preventing repetitive inquiries. Quick v. State, 166 Ga. App. 492, 497 (8) (304 SE2d 916).

Judgment affirmed.

Carley, C. J., and Sognier, J., concur. Deen, P. J., and Beasley, J., concur and also concur specially. Banke, P. J., Birdsong, Pope and Benham, JJ., dissent.

Beasley, Judge,

concurring specially.

I concur fully. As to the substantive issue, it was not a reversible legal error under OCGA § 15-12-133 to rule as impermissible the particular question asked, in the context of the proceedings. It bears particularized scrutiny.

Counsel had asked several broad questions of the whole panel concerning news reports and any outside influences, after somewhat disparaging comments about news reports:

“The question was asked earlier about any news spots you may have heard and, like many of you, I watch the news also. I might add, I don’t believe all that I watch or read in the papers all the time, but I watch it. Those of you who may have seen the spots on either one of the television stations or in the News-Press, my question is, I know a lot is said. My concern is, from what you’ve heard or what you may have read, do any of you feel that for this case which you’re here for today, that you would make certain to listen to the evidence coming out of this courtroom and no other place?
“Do any of you have problems with trying to add in or augment what you learn here today with what you’ve heard on the outside?
“Could you be able to insulate any outside information from what you hear in court today? . . .
“My question is, do any of you feel that you are not able to insulate, wipe out, cast aside, push aside, any outside information, and base your decisions on what comes from — this Court will charge you on at the conclusion of this trial, possibly at the beginning as well — and to make your decision on what comes from this courtroom and this courtroom only?
“Do you any of you feel that having seen a TV newscast or read something in our local papers that would prevent you from drawing a line and insulating yourself from that?”

No adverse answer was given to any of these questions by any of the prospective jurors, including the assistant principal, except one TV cameraman who was familiar with TV coverage of the case itself, and he was excused for cause.

Later, counsel stated and asked:

“ . . . some would say unfortunately, some would say fortunately, in my role as a legislator, have any of you been offended by any positions I may have taken that would prevent you — you’ve been so offended, or some statement I may have made that may have rankled you to the point — if you have, please raise your hand — that might prevent you from giving this case your fair and undivided attention?”

None of the panel responded, including the assistant principal.

Shortly thereafter, the individual voir dire commenced. The assistant principal was asked: “Mrs. Tuten, you wouldn’t hold it against me because I’m against the bond referendum, would you? You wouldn’t hold that against me, would you?”

The court interjected: “Counselor, that’s an improper statement.”

Counsel evoked further comment by the court by arguing: “Your Honor, for the record, if I can address for the record, Your Honor, I’ve taken a very public position about the bond referendum and she works for the school system.”

The court reaffirmed its ruling and then stated the legal principle which had been alluded to earlier: “Counselor, we’re not putting politics into this trial. Disregard it. Everybody is bound by the law and by the facts that are presented in evidence.”

Counsel concluded: “That’s all I have. Thank you.”

The court’s refusal to permit counsel to inject his position, taken as a public official on a totally unrelated political matter, in the ascertainment of impartiality of a juror who might be affected by the final outcome of the public’s on the matter and who had earlier indicated no belief she would be subject to any outside influences in reaching a decision in this case, does not cross the law’s bounds.

I am authorized to state that Presiding Judge Deen joins in this special concurrence.

Pope, Judge,

dissenting.

I disagree with the majority’s conclusion that the trial court did not err in prohibiting defense counsel from questioning a potential juror concerning whether she would “hold it against him” because he was opposed to a local school bond referendum.

“Although control of voir dire examination is normally within the discretion of the trial court, it has been held that the defendant in a criminal case has an absolute right to have his prospective jurors questioned as to those matters specified in OCGA § 15-12-133. [Cit.] Hence, it (is) reversible error for the trial court to refuse permission to appellant’s counsel to ask such questions of each juror, for such ruling denie(s) appellant a substantial right granted him by statute. (Cits.)” (Punctuation omitted.) Mitchell v. State, 176 Ga. App. 32, 34 (335 SE2d 150) (1985).

Here counsel sought by his question to ascertain whether the juror, an assistant principal of a local school “[held] it against him” because he took a “very public position” against a local school bond referendum issue. Inasmuch as the question related to “[a] fact or [circumstances] indicating any inclination, leaning, or bias which the juror might have respecting . . . counsel,” it was clearly within the purview of OCGA § 15-12-133. “Accordingly, we hold that [the defendant] had a statutory right to ask the question disallowed in the instant case. . . .

“(W)here a defendant in a criminal case has been deprived of his or her rights under OCGA § 15-12-133 ... to examine prospective jurors on voir dire, the burden is on the (S)tate to show that the error was harmless. (Cits.) This holding applies even though the defendant did not exhaust his or her peremptory strikes.” Mitchell at 34. In the case at bar the state argues that the error was harmless because the question was repetitive of an earlier question counsel propounded to all the potential jurors concerning possible prejudice or bias towards him based on his position as a state legislator. The record shows, however, that the disallowed question concerned counsel’s actions on a local community issue and was unrelated to his legislative position.

I also disagree with the majority’s conclusion that defendant failed to preserve this issue for appeal. Although the bases for defendant’s motion for mistrial may not have been stated with absolute or perfect clarity, in addition to stating that the court had embarrassed him in front of the jury, counsel also argued that his voir dire had been improperly restricted. Accordingly, I would reverse defendant’s conviction.

Decided March 17, 1989

Rehearing denied March 29, 1989.

Allen & Perry, Roy L. Allen II, Kevin E. Perry, for appellant.

Spencer Lawton, Jr., District Attorney, J. Clayton Culp, Assistant District Attorney, for appellee.

I am authorized to state that Presiding Judge Banke, Judge Birdsong, and Judge Benham join in this dissent.