text:
    A02A0463.
    HARMON v. THE STATE.
    (558 SE2d 733)
   Eldridge, Judge.

A Spalding County jury found Mary Lou Harmon guilty of DUI — less safe driver, which charge arose after Harmon rear-ended a car which was stopped at a red light at the corner of Hill and Taylor Streets in Griffin. Harmon appeals, claiming that (1) the results of a horizontal gaze nystagmus (“HGN”) test should have been suppressed since she was in custody without benefit of Miranda warnings at the time of the test’s administration; and (2) the trial court erred in refusing to charge the jury on the presumption of innocence that arises when chemical test results show a blood alcohol content of 0.05 or less. Because the record supports the trial court’s conclusion that Harmon was not in custody at the time of the HGN test and because Harmon refused chemical testing, thereby making inferences related to blood alcohol content without factual basis, we affirm her conviction.

1. In her first claim of error, Harmon contends that the trial court erred in denying her motion to suppress. In that regard,

[i]t is well settled that when reviewing a trial court’s decision regarding a motion to suppress evidence, the appellate court should be guided by three principles with regard to interpretation of the trial court’s judgment of the facts: First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

Here, citing testimony from the arresting officer that he suspected Harmon was under the influence and that he intended to arrest her regardless of the results of the HGN test, Harmon claims that she was in custody and, thus, Miranda warnings should have been given prior to the administration of the HGN test. This contention is meritless.

The evidence at the motion to suppress shows that Griffin Police Officer T. Lima informed Harmon that he smelled alcohol on and about her person and he asked her if she had been drinking. Harmon told the officer that she had consumed a “few drinks,” but that it was “no big deal.” Lima then called Corporal C. Clark to perform field sobriety tests. Harmon was not handcuffed, she was not placed in the back of the patrol car, and she was not informed that Lima intended to arrest her. Nor did Harmon testify at the motion to suppress or otherwise present evidence to support the notion that a reasonable person would have believed herself to be in custody. The totality of the circumstances shows that further investigation was to be performed by Corporal Clark.

Corporal Clark responded within five minutes of the call. He testified that Harmon “wanted to know what was going to take place next, how we were going to do this, a lot of questions. And I tried to explain to her what we were doing. And I asked her — explained to her, the best of my ability, what I was going to do or what I requested of her to do.” Clark then performed an HGN test on Harmon, which she failed. Thereafter, Harmon refused to cooperate with any more field sobriety tests. Officer Lima testified that he placed Harmon under arrest only after she refused to cooperate further: “At that point, I informed her that she was under arrest for driving under the influence of alcohol and placed her in the patrol car.”

Miranda warnings are not required when an investigating officer conducts preliminary questioning or field sobriety tests. After a DUI suspect is arrested, however, Miranda warnings must precede further field sobriety tests in order for evidence of the results to be admissible. The objective test is that “the police can be said to have seized an individual only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Accordingly, “it is the reasonable belief of an ordinary person under such circumstances, and not the subjective ‘belief’ or intent of the officer, that determines whether an arrest has been effected.”

Decided December 27, 2001.

Virgil L. Brown & Associates, Larkin M. Lee, for appellant.

Griffin E. Howell III, Solicitor-General, for appellee.

Here, Officer Lima did not make any statement or otherwise act in such a way that would cause a reasonable person to believe that she was under arrest and not simply temporarily detained for further investigation pursuant to an admission that she had consumed a “few drinks.” Therefore, despite the officer’s subjective “belief” that probable cause existed to arrest Harmon prior to the administration of the HGN test, she was not “in custody” so as trigger Miranda. The trial court’s denial of the motion to suppress, supported by the evidence, was not clearly erroneous and thus is affirmed.

2. “Any instruction should stand upon a base founded in the evidence or the lack thereof.” In this case, Harmon refused chemical testing, and no blood alcohol content was ascertained. She was indicted and tried for DUI — less safe, not DUI — excessive blood alcohol content. Accordingly, there was no factual basis for a jury instruction on the presumption of innocence that arises when chemical testing shows a blood alcohol content of 0.05 or less. The trial court did not err in refusing Harmon’s request for such instruction, because “ [i] f any portion of a requested charge is . . . not reasonably raised or authorized by the evidence, denial of the charge request is proper.”

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       (Citations and punctuation omitted.) Polizzotto v. State, 248 Ga. App. 814, 816 (1) (547 SE2d 390) (2001).

        Price v. State, 269 Ga. 222, 225 (3) (498 SE2d 262) (1998); State v. O’Donnell, 225 Ga. App. 502, 505 (2) (484 SE2d 313) (1997).

        Polizzotto v. State, supra.

       (Citation and punctuation omitted.) Michigan v. Chesternut, 486 U. S. 567, 573 (108 SC 1975, 100 LE2d 565) (1988); Mosely v. State, 269 Ga. 17 (495 SE2d 9) (1998); Lyons v. State, 244 Ga. App. 658 (535 SE2d 841) (2000).

       (Citations and emphasis omitted.) State v. Kirbabas, 232 Ga. App. 474, 476 (502 SE2d 314) (1998).

       See Arce v. State, 245 Ga. App. 466 (538 SE2d 128) (2000).

        Polizzotto v. State, supra; Arce v. State, supra; Lyons v. State, supra at 658; State v. Kirbabas, supra at 476.

       (Citation and punctuation omitted.) Rice v. State, 217 Ga. App. 456, 458 (458 SE2d 368) (1995).

       (Citation and punctuation omitted.) Haney v. State, 234 Ga. App. 214, 217 (507 SE2d 18) (1998).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A01A1656.
    A01A1657.
    DEPARTMENT OF TRANSPORTATION v. MONTGOMERY TANK LINES, INC. DEPARTMENT OF TRANSPORTATION v. RELIANCE NATIONAL INDEMNITY COMPANY.
    (558 SE2d 723)
   Mikell, Judge.

On November 7, 1997, a tractor-trailer driven by Ben A. Rozier, an employee of Montgomery Tank Lines, Inc., tragically collided head-on with a vehicle driven by Lawrence Parker. Parker was killed, and his estate and children brought a wrongful death action against Rozier, Montgomery Tank Lines, and its insurer, Reliance National Indemnity Company. The Georgia Department of Transportation (“Department”) was not named as a defendant. However, Montgomery and Reliance (“appellees”) provided notice of the wrongful death suit to the Department in accordance with OCGA § 50-21-26 of the Georgia Tort Claims Act, claiming that the Department negligently designed and maintained the intersection where the collision occurred. Appellees stated their intention to seek contribution and/or indemnification for any judgment awarded against them and invited the Department to intervene in the lawsuit. The Department did not respond to appellees’ ante litem notice other than to acknowledge receipt thereof.

The parties settled the wrongful death suit for $1.2 million; Reliance paid $700,000 toward the settlement, and Montgomery contributed $500,000. Appellees then instituted separate yet identical actions for contribution and/or indemnification against the Department. Asserting that it had not waived its sovereign immunity for contribution and indemnity claims, the Department moved to dismiss the actions. The trial court denied the motions but certified its orders for immediate review. We granted the Department’s applications for interlocutory appeal to resolve this issue of first impression in Georgia. Because the appeals are identical, we consolidate them for disposition in a single opinion.

The GTCA was enacted pursuant to a 1991 amendment to the state constitution in order to eliminate “the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity.” The Act grants a limited waiver of the state’s sovereign immunity, allowing “demand against the State of Georgia for money only on account of loss caused by the tort of any state officer or employee.” “Loss” is defined as “personal injury; disease; death; damage to tangible property . . . ; pain and suffering; mental anguish; and any other element of actual damages recoverable in actions for negligence.” The Department concedes that Parker’s wrongful death falls within this definition of “loss.”

Further, “[u]nder the act, the state waives its sovereign immunity for the torts of state employees while acting within the scope of their- official duties in the same manner as a private individual or entity would be liable under like circumstances subject to the act’s exceptions and limitations.”

In Dept. of Transp. v. Brown, this Court construed the above-quoted language as permitting the Department to be held liable as a joint tortfeasor for negligently failing to install a traffic light at an intersection where a mother and her two daughters were killed. Subsequently, in Dept. of Transp. v. Blair, which involved a wrongful death suit brought against the Department alleging negligent maintenance of a stop sign at an intersection where a fatal collision occurred, we recognized the Department’s right to bring an action for contribution against the alleged joint tortfeasor — the driver of the vehicle in which the deceased was killed. It follows that since the state may be held liable as a joint tortfeasor, and since Georgia law permits contribution among joint tortfeasors, so too may the state be sued for contribution. In addition, since the law recognizing the right of contribution applies equally to claims of indemnity, the state is not immune from indemnity claims either. We thus affirm the decision of the trial court.

The conclusion we reach today has long been the position held by federal courts when interpreting the Federal Tort Claims Act. The FTCA’s waiver of sovereign immunity “normally encompasses claims for contribution or indemnification where the law of the relevant state would hold a private individual liable for contribution or indemnification in the same circumstances.” Moreover, the “state act was patterned ‘in most respects’ after the [FTCA].” Still, the Department contends that despite its ability to seek contribution from a joint tortfeasor, a private entity does not have the same privilege. The U. S. Supreme Court rejected the same argument in holding that the federal government had waived its sovereign immunity under the FTCA for claims of contribution and indemnification in a case involving a collision between a taxicab and a U. S. mail truck.

Of course there is no immunity from suit by the Government to collect claims for contribution due it from its joint tortfeasors. . . . It is fair that this should work both ways. However, if the Act is interpreted as now urged by the Government, it would mean that if an injured party recovered judgment against the Government, the Government then could sue its joint tort-feasor for the latter’s contributory share of the damages. . . . On the other hand, if the injured party recovered judgment against the private tort-feasor, it would mean that . . . that individual could not sue the Government for the latter’s contributory share of the same damages. . . . Such a result should not be read into this Act. . . ,

We find this reasoning persuasive. As the Department could have been named as a defendant in the underlying wrongful death action, so too may it be sued for contribution and/or indemnity arising out of the same loss. Accordingly, the trial court did not err in denying the Department’s motions to dismiss these actions.

Judgments affirmed.

Blackburn, C. J., and Pope, P. J., concur.

On Motion for Reconsideration.

On motion for reconsideration, the Department argues that this court overlooked the controlling authority of Dept. of Human Resources v. Coley, 247 Ga. App. 392 (544 SE2d 165) (2000) (whole court), when we stated that the GTCA was patterned after the FTCA “in most respects.” Coley, however, merely rejected the notion “that the GTCA is simply a ‘clone’ of the FTCA.” Id. at 395 (2). In fact, some distinctions do exist, and the one at issue in Coley was the assault and battery exception to the waiver of sovereign immunity, OCGA § 50-21-24 (7). Accordingly, in Coley, it was “necessary to look at the Georgia language on its own terms, and not simply to defer to federal cases construing a substantially different statute.” Id. at 396. In the instant case, however, the relevant Georgia and federal statutes are nearly identical, and it is entirely appropriate to rely on cases interpreting the federal law. OCGA § 50-21-23 (a) provides as follows: “The state waives its sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment and shall be liable for such torts in the same manner as a private individual or entity would be liable under like circumstances. . . .” Similarly, the federal statute states: “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.” 28 USC § 2674. It follows that our decision is consistent with Coley.

Decided November 1, 2001

Reconsideration denied January 4, 2002

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, for appellant.

Arnall, Golden & Gregory, Stefan C. Passantino, James A. Gober, Trevor A. Parssinen, for appellees.

Bovis, Kyle & Burch, John H. Peavy, Jr., amicus curiae.

Motion for reconsideration denied.

       OCGA § 50-21-20 et seq.

       Ga. Const. of 1983, Art. I, Sec. II, Par. IX (e).

       (Punctuation omitted.) Dept. of Human Resources v. Mitchell, 238 Ga. App. 477, 481 (2) (518 SE2d 440) (1999).

       OCGA § 50-21-22 (1).

       OCGA § 50-21-22 (3).

       (Punctuation omitted.) Edwards v. Dept. of Children &c. Svcs., 271 Ga. 890-891 (525 SE2d 83) (2000), citing OCGA § 50-21-23 (a).

       218 Ga. App. 178, 183-184 (6) (460 SE2d 812) (1995).

       220 Ga. App. 342, 345 (2) (469 SE2d 446) (1996).

       OCGA § 51-12-32.

       Id.; State Farm Fire &c. Co. v. American Hardware Mut. Ins. Co., 224 Ga. App. 789, 793-794 (4) (a) (482 SE2d 714) (1997).

        Beneficial Consumer Discount Co. v. Poltonowicz, 47 F3d 91, 96-97 (V) (3rd Cir. 1995), citing Lockheed Aircraft Corp. v. United States, 460 U. S. 190, 196-198 (103 SC 1033, 74 LE2d 911) (1983), and United States v. Yellow Cab Co., 340 U. S. 543, 546-552 (71 SC 399, 95 LE 523) (1951).

        Edwards v. Dept. of Children &c. Svcs., supra, 271 Ga. at 891.

       (Emphasis omitted.) United States v. Yellow Cab Co., supra, 340 U. S. at 551-552.


author: Phipps, Judge.

text:
    A02A0143.
    WARREN v. THE STATE.
    (558 SE2d 741)
   Phipps, Judge.

Mack Warren was charged with and convicted of four counts of aggravated assault after he shot his stepdaughter, Kizzy Taylor, and his niece, Latisha Taylor, with a handgun and attempted to shoot his wife, Ruthie Warren Taylor, and niece, April Taylor. He appeals, challenging the sufficiency of the evidence to support his conviction and the court’s charge on aggravated assault. We affirm, because we find that the evidence was sufficient and the charge was proper.

Warren claimed that he was acting in self-defense. His defense found support in April Taylor’s testimony. The other women testified, however, that Warren’s assaults were unprovoked.

Warren’s challenge to the sufficiency of the evidence is wholly without merit. Resolution of conflicts in the testimony of the witnesses, including State’s witnesses, was for the jury. Construed in a light most favorable to support the verdict, the evidence was sufficient to authorize any rational trier of fact to find Warren guilty beyond a reasonable doubt.

Decided January 4, 2002.

Hugh O. Morris, Jr., for appellant.

Kenneth B. Hodges III, District Attorney, Jennifer A. Green, Assistant District Attorney, for appellee.

Warren charges the trial court with error in instructing the jury on aggravated assault under subsection (a) (1) of OCGA § 16-5-21 (“specific intent” aggravated assault). This complaint is also completely lacking in merit, as the transcript shows that the trial court charged the jury under subsection (a) (2) (“deadly weapon” aggravated assault) only.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       See, e.g., Peek v. State, 247 Ga. App. 364, 365 (1) (542 SE2d 517) (2000).

       See, e.g., Salter v. State, 257 Ga. 88, 89 (1) (356 SE2d 196) (1987).


text:
    A02A0226.
    FRANKLIN v. FRANKLIN.
    (558 SE2d 738)
   Phipps, Judge.

Appellee Wilhelmina Franklin filed a complaint for declaratory judgment against appellant Patricia Franklin and others. Both women claim to be the legal widow of Earl Franklin, who died in 1999. The jury returned a verdict finding appellee to be the legal widow. Following denial of her motion for new trial, appellant appeals judgment entered on the verdict. Appellant challenges the sufficiency of the evidence to support the verdict and the trial court’s refusal to give one of her requested jury charges. Finding no evidentiary insufficiency or trial error, we affirm.

Appellee makes a persuasive claim to being the lawful widow because she and Earl Franklin entered into a ceremonial marriage in 1998, and the marriage remained in existence at his death. Appellant, however, testified that in the early 1980s she and Earl Franklin entered into a common-law marriage which never ended in divorce. To substantiate the existence of the common-law marriage, appellant presented numerous acquaintances and family members of the couple who testified that they held themselves out as being married. Appellant also introduced documents such as joint tax returns and medical records which identified her and Earl Franklin as husband and wife. Appellee, on the other hand, presented other relatives and acquaintances of the parties who denied that Earl Franklin held himself out as having been married to appellant. Appellee also submitted evidence that in the 1980s Earl Franklin held himself out as being married to another woman who also used his last name. Indisputably, Earl Franklin did cohabit with appellant; they bore a child together; and, if they did enter into a common-law marriage, it was never dissolved.

1. Appellant argues that the evidence demanded a finding that she and Earl Franklin entered into a common-law marriage. This argument is without merit.

When the alleged marriage is unlicensed and nonceremonial, the burden is on the proponent to prove that a common-law márriage existed. In order for a common law marriage to come into existence, the parties must be able to contract, must agree to live together as man and wife, and must consummate the agreement.

“Of particular import is that ‘such legal relationship cannot be partial or periodic,’ [cit.], and that the three requirements must coexist. [Cit.]”

[I]f the factfinder finds as true that the parties sometimes held themselves out as not married when that was convenient or served their purposes and at other times held themselves out as married, then the factfinder would be compelled to conclude that the party who has the burden to prove a common law marriage existed would fail because the evidence conclusively shows that one element is disproved: that the parties agreed to live together as husband and wife. [Cit.] It would be unlawful to agree to do that only periodically. Either you agree to be married, and married you are all the time, or you do not, in which case you are not married at all. [Cit.]

Here, the jury might have believed witnesses testifying for both parties and found that appellant and Earl Franklin lived together as husband and wife only periodically. The jury also was authorized to disbelieve appellant’s witnesses entirely and to believe appellee’s witnesses instead. The verdict finding no common-law marriage between appellant and Earl Franklin has support in the evidence.

Decided January 4, 2002

Adam R. Gaslowitz & Associates, Adam R. Gaslowitz, Duane D. Pritchett, for appellant.

Divida Gude, for appellee.

2. Appellant also complains of the trial court’s refusal to instruct the jury, in accordance with cases such as Wright v. Goss and Beals v. Beals, that the existence of a common-law marriage may be proved by such circumstances as the parties holding themselves out to the world as husband and wife or by reputation. The court did not err in refusing to give the requested charge, as the basic proposition it set forth was addressed in another part of the jury instruction.

Judgment affirmed.

Andrews, P. J, and Mikell, J., concur.

       Although no common-law marriage may be entered into in this state on or after January 1, 1997, valid common-law marriages entered into prior to that date continue to be recognized. OCGA § 19-3-1.1.

       (Citations, punctuation and footnote omitted.) Wright v. Goss, 229 Ga. App. 393, 394 (1) (494 SE2d 23) (1997).

       Id. at 395 (1).

       (Emphasis in original.) Id.

       See In re Estate of Dunn, 236 Ga. App. 211, 212-213 (2) (b) (511 SE2d 575) (1999) (holding that evidence supported finding of no common-law marriage where party to alleged marriage did not consistently claim or engage in conduct consistent with existence of common-law marriage).

       See Ridley v. Grandison, 260 Ga. 6 (389 SE2d 746) (1990) (holding that evidence supported finding of common-law marriage even though both parties denied existence of marriage in court).

       Supra.

       203 Ga. App. 81, 82 (1) (416 SE2d 301) (1992).

       See Mattox v. MARTA, 200 Ga. App. 697, 699 (2) (409 SE2d 267) (1991) (a requested charge properly is refused if principle involved is substantially covered in charges given).


text:
    A02A0298.
    THE STATE v. WHITLOW et al.
    (558 SE2d 736)
   Phipps, Judge.

After marijuana was found in their car during a traffic stop, Carnell Whitlow and Quintin Jackson were charged with violations of the Georgia Controlled Substances Act. The State appeals the trial court’s grant of their motions to suppress the evidence. Viewing the evidence in a light most favorable to the trial court’s judgment, we affirm.

After observing a car weaving in and out of its lane of traffic on Interstate 20, Douglasville Police Officer Wade Rogers effected a traffic stop to check the sobriety of the driver, Whitlow. According to Rogers, Whitlow produced a valid driver’s license, gave no indication that he was under the influence of alcohol or drugs, although he was very nervous, and sought to explain his irregular driving by stating that he was operating a rental car and was unfamiliar with the way it handled. He also informed Rogers that he was returning to Alabama after having been in the Campbellton Road area of Atlanta.

Rogers then asked the vehicle’s front seat passenger, Jackson, for the automobile rental contract. According to Rogers, Jackson was very defensive and also extremely nervous. Upon examining the rental contract, Rogers saw that Jackson had rented the car in Alabama that day; that he had paid by credit card titled in the name of a business; and that the rental contract listed Jackson as the sole authorized driver, even though (as ascertained by Rogers) Jackson’s license had been suspended. When Rogers asked Jackson about his travel itinerary, he responded that he had been to the Windy Hill Road area of Atlanta in Marietta on a personal matter.

After issuing Whitlow a warning citation for failure to maintain his lane of traffic, Rogers asked Jackson for consent to search the vehicle, but Jackson refused. Rogers testified that he asked for consent to the search, in part because a trend has developed in which interstate travelers rent vehicles, come to Atlanta from other areas to purchase narcotics, and return on the same day. A drug detection dog arrived on the scene approximately 20 minutes after the stop was made and, during an open air sniff, alerted on the presence of narcotics in the vehicle. A search of the vehicle revealed a large garbage bag full of marijuana in a suitcase in the trunk.

“ '[T]he stop of a vehicle is authorized if an officer observes the commission of a traffic offense.’ [Cit.]” However, “[a]n officer who questions and detains a suspect for other reasons exceeds the scope of permissible investigation unless he has ‘reasonable suspicion’ of other criminal activity.”

In a line of cases represented by Roundtree v. State, Pitts v. State, and State v. Hall, this court held that when the subjects of a traffic stop appear unusually nervous and give conflicting answers to routine questions posed by the investigating officer during the stop, reasonable suspicion of criminal activity exists. In Migliore v. State of Ga., however, we held that where the statements attributed to the individuals who were questioned did not contain meaningful inconsistencies, reasonable suspicion to detain and investigate for illicit drug activity did not arise from their nervousness. Simmons v. State held that nervousness on the part of the driver and passenger, plus the fact that they were driving a car rented by an individual who was not present in the car, did not add up to reasonable suspicion of criminal activity.

Decided January 4, 2002.

David McDade, District Attorney, James E. Barker, Assistant District Attorney, for appellant.

Wade, Walker & Associates, Christopher L. Walker, Alison S. Kubiak, Lee W. Fitzpatrick, for appellees.

This case is similar to Migliore and Simmons, in that there are meaningless inconsistencies in the subjects’ answers, nervousness, and the absence of an authorized driver under the automobile rental agreement. Neither in isolation nor in their totality do these facts give rise to reasonable suspicion of illegal drug activity or other criminal behavior. Nor was reasonable suspicion of illegal drug activity necessarily established by the officer’s testimony that he detained Jackson and Whitlow in part because of the trend concerning rental car usage and drug trafficking. In the order granting the motions to suppress, the court gave this testimony no weight. This the court was authorized to do, as “(determining the credibility of witnesses and the weight to be given their testimony is a . . . power that lies solely with the trier of fact. The trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony. [Cit.]” Moreover, it is not illegal to rent a car in Alabama and drive it to Georgia for the day. Construed most favorably to upholding the findings and judgment of the trial court, the evidence supports its grant of the motions to suppress.

Judgment affirmed.

Mikell, J., concurs. Andrews, P. J., concurs in judgment only.

        State v. Bute, 250 Ga. App. 479, 481 (552 SE2d 465) (2001).

        State v. Blair, 239 Ga. App. 340, 341 (521 SE2d 380) (1999).

       213 Ga. App. 793 (446 SE2d 204) (1994).

       221 Ga. App. 309, 311 (2) (471 SE2d 270) (1996).

       235 Ga. App. 412 (509 SE2d 701) (1998) (physical precedent only).

       240 Ga. App. 783 (525 SE2d 166) (1999).

       223 Ga. App. 781, 782 (2) (479 SE2d 123) (1996).

        State v. Gibbons, 248 Ga. App. 859, 860 (1) (547 SE2d 679) (2001).

       See, e.g., State v. Sims, 248 Ga. App. 277, 278 (546 SE2d 47) (2001).


text:
    A02A0479.
    DOCKERY v. THE STATE.
    (558 SE2d 740)
    Decided January 4, 2002.

      Zipperer & Lorberbaum, Eric R. Gotwalt, for appellant.
   Phipps, Judge.

Markel Dockery challenges the validity of his guilty plea in his appeal from the trial court’s denial of his motion to withdraw the plea. As the court was authorized to find that the State carried its burden of “showing on the record of the guilty plea hearing that [Dockery] was cognizant of all of the rights he was waiving and the possible consequences of his plea,” we affirm.

Dockery was charged with armed robbery and possession of a firearm during the commission of a crime. At trial, he decided to enter an open-ended guilty plea to the charges. A plea hearing was held. Defense counsel and the trial judge explained to Dockery that the court was obligated to sentence him to serve a minimum of ten years without possibility of parole for armed robbery and to serve a consecutive but parolable five-year term on the firearm charge. When the trial judge asked Dockery whether he wanted to plead guilty or proceed with the trial, he gave an inaudible response and then said, “open-ended plea.” At the plea hearing, Dockery answered an array of routine questions to establish that he was not under the influence of alcohol or drugs, that he was entering the guilty plea with an understanding of the charges, possible sentences, and terms of the plea, and that he was entering the plea voluntarily and with knowledge of the rights he was waiving.

About two months after the hearing, Dockery filed a pro se motion to withdraw his guilty plea on grounds it had not been made knowingly or intelligently. At a hearing on the motion to withdraw, Dockery testified that his attorney had told him that he would not have to serve ten years and that he, Dockery, had thought he would be eligible for parole, even though he may have been told otherwise. Counsel testified that (as shown by the record) he told Dockery that the armed robbery charge carried a minimum sentence of ten years without possibility of parole. The trial court denied the motion to withdraw. Because the State has carried its burden of establishing the validity of the guilty plea on the record, and because resolution of conflicts in the testimony of the witnesses was for the trial court, we affirm.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

Spencer Lawton, Jr., District Attorney, Christine S. Barker, Assistant District Attorney, for appellee.

        Cazanas v. State, 270 Ga. 130, 131 (508 SE2d 412) (1998).


author: Blackburn, Chief Judge.

text:
    A01A1681.
    LAREDO v. THE STATE.
    (558 SE2d 742)
   Blackburn, Chief Judge.

Miguel Angel Laredo was tried for battery, false imprisonment, simple battery, and two counts of rape. The trial court declared a mistrial on one rape count, and the jury convicted Laredo of the other rape count as well as the battery and false imprisonment charges. Laredo was acquitted of simple battery. All three convictions were for crimes that Laredo committed against his wife on the same day at different times.

After the expiration of time to file an appeal, Laredo was appointed new appellate counsel and was authorized by the trial court to file an out-of-time appeal. In this appeal, Laredo contends that the evidence was insufficient to sustain his conviction for false imprisonment. He also claims that his trial counsel provided ineffective assistance by failing to request a limiting instruction when the State introduced the prior difficulties evidence. After finding no legal basis for reversal, we affirm.

When viewed in the light most favorable to the verdict, the evidence established that even prior to their marriage in 1996, as early as September 1994, Laredo had begun a pattern of physically abusing the victim. In August 1999, while Laredo was in Mexico, the victim moved out of the couple’s home with their three children. When Laredo returned and discovered what she had done, he intercepted the children at their babysitter’s house and took them to his mother’s home in Mexico. Laredo warned her that "[t]he only way he was going to give me the kids back is for me to come back with him.”

During the period of estrangement, as the victim returned from work on a Friday, while she was opening her apartment door, Laredo suddenly shoved her inside, pushed her down onto the floor, and then demanded sex. When she refused, Laredo beat her; then after tightening his belt around her neck, he raped her. After the rape, Laredo pinned her face beneath a pillow and kept her near him on Friday night as well as the remainder of the weekend. When asked whether she ever tried to leave, the victim responded, “[h]e wouldn’t let me.” She testified that she was afraid of what else he might do to her. Saturday morning, when she again refused to have intercourse, Laredo grabbed her, threatened to kill her, and coerced her to do so. Finally, on Monday morning, Laredo permitted her to leave so that she could go to work. Later that day, she sought help from Della Rivera, a bilingual friend, to whom she confided the details of her weekend-long ordeal. Rivera testified, “[s]he had a black eye. She had a bruise across her face, she had fingerprints on her throat. And she had bruises on her arms . . . where she was pinned to the floor with his knees.” Having seen the injuries firsthand, Rivera agreed to accompany her to a police station to file a report. Officer Jesus J. Lopez would later recall seeing bruising on the victim’s face, and he described her left cheek as purple and swollen. Based on the information obtained from the victim and Rivera, Laredo was arrested.

At trial, the victim described an earlier incident when Laredo suddenly attacked her, grabbed her by the hair from behind, pushed her down to the floor, and started hitting her in the face. That beating had left all of her face bruised and blackened. She described another incident when she was two months pregnant and Laredo hit her causing her to vomit blood. By her account, he “continually abused me.”

Rivera detailed additional incidents of violence including one when Laredo had chased the victim into a parking lot, brandishing a belt. After another outburst, Rivera had to take the victim to a hospital because Laredo had struck his then pregnant wife in the stomach and she experienced vaginal bleeding. According to Rivera, at various times she had noticed the victim had black eyes and bruises on her face and arms. On his own initiative, Laredo’s cellmate contacted the district attorney’s office to express his willingness to testify that Laredo admitted having abused his wife and forcing her to have sex with him. At trial, he attested to those admissions including Laredo’s statements that he had physically abused her while they lived in Texas and Georgia.

1. Laredo contends that the evidence was insufficient to support his conviction for false imprisonment. He claims that the State failed to offer any evidence that he locked the doors to the apartment or physically restrained the victim or involuntarily confined her on Friday, the day specified in the indictment.

The essential elements of the crime of false imprisonment are: violating the personal liberty of another, by arresting, confining or detaining a person, without legal authority. OCGA § 16-5-41 (a). Here, the victim testified that after Laredo had raped her on Friday night, he would not allow her to leave the apartment. She described being fearful of what else he might do. Other evidence showed that Laredo had struck, beaten, and attacked her on prior occasions. Both Rivera and a police officer recalled seeing bruising on the victim’s face shortly after her ordeal. From this evidence, a jury could find that Laredo deprived the victim of personal liberty by confining and detaining her without legal authority to do so. See Grissom v. State (confinement in a bedroom for four hours after a rape was sufficient). Notwithstanding Laredo’s contention to the contrary, this evidence was sufficient to sustain his conviction for false imprisonment. Grier v. Stated

2. Laredo contends that his trial counsel’s performance was substandard because his counsel failed to seek a limiting instruction when the evidence of prior difficulties was introduced.

At the outset, we note that this ineffectiveness claim is arguably being made for the first time. Nevertheless, when the record is sufficient, as here, an appellate court may decide ineffectiveness issues without remanding the case when the remand would waste judicial and legal resources and serve no useful purpose. Elrod v. State.

To prevail on an ineffective assistance of counsel claim, an appellant must establish not only that his trial counsel’s performance was deficient but also that the deficiency prejudiced his defense. Pollard v. State. See also Strickland v. Washington. Failure to satisfy both requirements is fatal to an ineffectiveness claim. Brewer v. State. Absent a showing of prejudice, no inquiry need be made into counsel’s alleged deficiency. Trammel v. State.

When the State introduced evidence about the couple’s prior difficulties, Laredo objected that the State had not provided proper notice of its intent to offer that evidence. The trial court correctly overruled his objection, finding that pre-trial notice was not required. Wall v. State Although pre-trial notice of this type of evidence was not required, in Wall, supra, the Supreme Court held that “the admission of such evidence should be accompanied by an instruction from the trial judge explaining the limited use to which the jury may put such evidence.” Id. Here, Laredo’s trial counsel failed to request a limiting instruction, and none was provided. Although the trial court did not commit reversible error by not providing, sua sponte, a limiting instruction, the better practice is for trial courts to give such an instruction whenever admitting prior difficulties evidence. Lee v. State. Nevertheless, in light of the overwhelming evidence of his guilt, Laredo cannot show a reasonable probability that the outcome of his trial would have been different had his counsel requested the limiting instruction. Landers v. State.

Decided January 7, 2002.

Patricia F. Angelí, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Grissom v. State, 187 Ga. App. 653, 654 (1) (371 SE2d 137) (1988).

        Grier v. State, 218 Ga. App. 637, 638 (1) (463 SE2d 130) (1995).

       Laredo’s initial appellate counsel filed a motion under Anders v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493) (1967), in which he sought to withdraw “from further representation of the defendant on the ground that an appeal would be wholly frivolous.” The trial court then appointed new counsel who pursued this appeal.

        Elrod v. State, 222 Ga. App. 704, 705-706 (1) (475 SE2d 710) (1996).

        Pollard v. State, 230 Ga. App. 159, 161 (4) (495 SE2d 629) (1998).

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997).

        Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995).

        Wall v. State, 269 Ga. 506, 509 (2) (500 SE2d 904) (1998).

        Lee v. State, 270 Ga. 626, 628 (4) (513 SE2d 225) (1999).

        Landers v. State, 270 Ga. 189, 191 (4) (508 SE2d 637) (1998).


author: Eldridge, Judge.

text:
    A01A1958.
    HOWARD v. THE STATE.
    (558 SE2d 745)
   Eldridge, Judge.

A Muscogee County jury found Leroy Howard guilty of multiple counts of violation of the Georgia Controlled Substances Act and possession of a firearm with an altered identification mark. On appeal, he challenges the trial court’s denial of his motion to suppress, claiming that an investigating officer exceeded the scope of a Terry pat-down when he pulled open Howard’s pocket in order to discover what was in it. Under the facts of this case, we agree and reverse.

An informant told members of the Metro Narcotics Task Force that she could purchase a quantity of marijuana from Howard. At the request of law enforcement, the informant telephoned Howard late in the evening to arrange for a purchase. The call was recorded. Howard told the informant that he did not have any “weed” at his house because he “done carried it on up to the country. Just got back and got in the bed.” Howard told the informant that he would have the marijuana to sell in the morning: “get up early now and I’ll call you by mid-morning.” This information confirmed what the agents already knew to be Howard’s pattern of behavior. After a 1997 drug arrest following the execution of a search warrant at his trailer in the “country,” i.e., Harris County, Howard told the arresting officers that he sold drugs in Columbus, but brought them out to Harris County every evening. In addition, during an impound search of Howard’s vehicle pursuant to a 1998 incident, marijuana was found hidden in his car.

Two days after recording the telephone call confirming that Howard was still selling in Columbus and removing the drugs to Harris County every night, the task force put Howard’s house under surveillance. The officers watched Howard leave his residence in the early evening. They followed his vehicle. Before the officers could stop Howard, however, he pulled over and got out of his car, locking it before he left. The officers pulled in behind him and exited their vehicle. Howard recognized several of the officers from prior arrests and walked toward them. One of the officers, Jeff Evans, had been involved in two prior incidents wherein Howard had threatened people with firearms. Officer Evans testified that as Howard approached, “I greeted him. I did conduct a pat-down search of him. I informed him that’s what I was doing.”

During the pat-down, Evans felt an object in Howard’s front left pocket. The sum total of Evans’ knowledge about the object in Howard’s pocket was:

A large hard object that I would; that I was really unsure of what it was at that time. . . . They were hard, a very hard and round object. ... It felt like a tubular type, round object. Probably what, three and a half inches long, three inches long. . . . About the same dimension wide.

Based on this information, Evans “separated the pocket outside from the inside. ... I looked; I pulled the pocket out and looked down into the pocket.” Inside were two plastic prescription pill bottles with the name “Earl Boone” on them. One of the bottles contained two different types of pills. Howard was arrested. A search of his car revealed a .25 semi-automatic weapon in the glove box and a quantity of different narcotics under the hood in a cooler-type container. Following his arrest, Howard consented to a search of his house, because he wanted “to help himself with this case.” A small amount of marijuana and powdered cocaine were found at Howard’s residence, along with a .357 automatic weapon with the serial number filed off.

Howard filed a motion to suppress the narcotics. On cross-examination during the motion hearing, Officer Evans testified as follows:

Q: When you patted him down and you felt those pills, you knew that wasn’t a weapon or you could tell that wasn’t a weapon, couldn’t you?
A: Not specifically, no, sir.
Q: So it’s your testimony you thought that pill bottle might be a weapon.
A: When you first feel a large object of that size, you can’t tell exactly what it is just through a pair of blue jeans.
Q: So what sized pill bottle was it?
A: They were with two together. It was; well, I can say probably three inches wide and with them together, it’s several inches.

Held:

A Terry pat-down, unlike a full search, is conducted for the purpose of insuring the safety of the officer and of others nearby, not to obtain evidence for use at trial. It is a minimal intrusion reasonably designed to discover guns, knives, clubs, or other weapons that could prove dangerous to a police officer. Under Terry, an officer is authorized to pat down a suspect’s outer clothing. He may intrude beneath the surface in only two instances: (1) if he comes upon something that feels like a weapon, or (2) if he feels an object whose contour or mass makes its identity as contraband immediately apparent, i.e., the “plain feel” doctrine.

As to the second instance above, Officer Evans never testified that he recognized the objects in Howard’s pocket as contraband; that Howard was known to sell narcotics from prescription pill bottles; and that he recognized such objects in Howard’s pocket. Evans did not recognize contraband until after he intruded beneath the surface of Howard’s clothing by opening his pocket, at which time the prescription pill bottles came into view. Accordingly, seizure of the bottles under the “plain feel” doctrine was not authorized.

As for the first instance above, Evans testified only that he could not rule out “specifically” that the object in Howard’s pocket might be a weapon and that “it is hard to tell” through blue jeans. However, if such indecision were sufficient to justify the intrusion at issue here, the protections of the Fourth Amendment would be eviscerated for purposes of a Terry pat-down, since all an officer would have to state is that he did not know if the object at issue was a weapon. This is not to say that an officer must be absolutely positive that an object is a weapon in order to protect himself by looking to make sure. Officer safety is paramount. But, to satisfy the Fourth Amendment when dealing with what may be an unusual weapon, “an officer must provide specific and articulable facts which reasonably support a suspicion that the particular suspect is armed with an atypical weapon which would feel like the object felt during the pat-down.” Only then can judges satisfy the Fourth Amendment’s requirement “of a neutral evaluation of the reasonableness of a particular search by comparing the facts with the officer’s view of those facts.” In this case, Officer Evans provided no facts whatsoever which would lead a police officer to suspect that the three-inch tubular pill bottles in Howard’s pocket were some type of “atypical weapon” so as to justify intruding into Howard’s pocket for the officer’s protection. Absent any such facts on the record, the trial court erred as a matter of law in finding that exceeding the bounds of a Terry pat-down was justified in this case.

Decided January 7, 2002.

John R. Mobley II, for appellant.

J. Gray Conger, District Attorney, Roger H. Anderson, Assistant District Attorney, for appellee.

Judgment reversed.

Andrews, P. J, and Miller, J, concur.

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       Howard served some time in prison for possession of marijuana with intent to distribute as a result of this prior arrest. The record is unclear how long Howard had been out of jail before the latest incident.

        Corley v. State, 236 Ga. App. 302, 304 (1) (a) (512 SE2d 41) (1999).

        State v. Newton, 227 Ga. App. 394, 395 (489 SE2d 147) (1997).

        Tukes v. State, 236 Ga. App. 77, 79 (511 SE2d 534) (1999).

        State v. Newton, supra at 395-396 (1); Brown v. State, 181 Ga. App. 768, 770 (1) (353 SE2d 572) (1987).

       (Punctuation omitted.) Holtzendorf v. State, 125 Ga. App. 747, 753 (188 SE2d 879) (1972); Taylor v. State, 239 Ga. App. 858, 859 (1) (a) (522 SE2d 266) (1999).


text:
    A01A2172.
    GREESON v. THE STATE.
    (558 SE2d 749)
   Blackburn, Chief Judge.

A jury found Richard Eric Greeson guilty of theft by receiving stolen property, obstruction of an officer, and attempting to elude a police officer. On appeal, Greeson claims that the trial court erred by (1) allowing the victim to identify him in court, (2) denying his motion for a new trial on the grounds of newly discovered evidence, and (3) sentencing him as a recidivist. He also claims a fatal variance in the indictment and the evidence produced at trial and that his trial counsel was ineffective. We find no reversible error and affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Greeson] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Barber v. State.

Viewed in this light, the record shows that Jamie Long and her husband owned a 1997 Plymouth Breeze automobile. The car was stolen from their residence on March 21, 1999. The next day, while Jamie Long was a passenger in another car, the stolen Plymouth drove by in the other direction. The two cars passed within a few feet of each other, and Long could see the profile of the dark-haired male driver.

On April 3, 1999, Officer Firth of the Powder Springs Police Department detected a speeding Plymouth automobile; he activated the lights on his patrol car with the intent of stopping the car. Instead of stopping, the car sped away and led police from three jurisdictions on a high speed chase. The car crashed into a cemetery, and the officers continued the chase on foot after the driver exited the car and ran into a nearby subdivision. Police finally caught the driver, whom they identified as Greeson. When Officer Firth examined the inside of the car, he found that there was no ignition key and that the area around the steering column had been “busted out.”

After the car crashed, the male passenger, Christopher Camp, fled and was apprehended by police. The female passenger, Jennifer Cole, stayed in the car. Before Greeson’s trial, Camp pled guilty to theft by receiving stolen property in connection with the incident.

Greeson’s defense was that he did not know the Plymouth was stolen. Camp testified that he stole the Plymouth, but told Greeson that he had purchased the car. Camp, a close friend of Greeson’s, also admitted to four previous felony convictions for car theft. Camp testified that he had told Greeson that he had lost the keys to the car and that he asked his girlfriend’s father, a mechanic, to “peel” the steering wheel so he could drive the car without keys. Camp further explained to the jury that he and Greeson were at Cole’s house when Greeson’s sister called him to come pick her up and that Camp asked Greeson to drive the car because he knew the route. Camp maintained that Greeson fled from the police because he had a suspended license.

1. Greeson claims that the trial court erred when it allowed Long to identify him as the person she saw driving her stolen car because the State stipulated before trial that Long would not be giving eyewitness testimony. We disagree.

A stipulation is “ ‘any agreement made by attorneys respecting business before the court.’” McDaniel v. Oliver. When Greeson’s counsel asked the trial court to prevent the State from asking Long questions in the area of identity, the prosecutor responded, “Well, I’ll ask any questions I like. I have no knowledge that they can identify anybody. If they can, so be it.” There was no agreement by the attorneys.

2. Greeson next claims the trial court erred in admitting Long’s rebuttal testimony identifying him as the man she saw driving her stolen car. He complains that the identification violates the rule against sequestration and that her in-court identification was tainted by an improper pre-trial identification. Long identified Greeson as the driver of the car on rebuttal testimony after she had been excused and had remained in the courtroom. Long’s testimony was proper as rebuttal testimony: Camp had testified that Greeson first saw Camp with the car three days after it was stolen, but Long could identify Greeson as driving that car on March 22, 1999, the day after the car was reported stolen. See Phillips v. State. Any violation of the rule of sequestration goes to the credibility of a witness, and not competency to testify. See Keller v. State.

Greeson also argues that the pre-trial identification procedure was extremely suggestive and likely to cause misidentification:

the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, [and] the level of certainty demonstrated by the witness at the confrontation.

(Punctuation omitted.) Towns v. State.

The police never conducted a formal pre-trial identification of Greeson by Long. They showed Long a photograph of Greeson, named him, and told her he was in the stolen car when it was recovered. We would agree that this is not a proper procedure for a pretrial identification. But even if a pre-trial identification is tainted, a subsequent in-court identification is admissible if it does not depend on the tainted identification, but has an independent basis. Jacobs v. State. Long had an independent basis for her identification of Greeson through her opportunity to view him driving her car. She was within feet of the driver, and her level of attentiveness was apparently very high given that she was looking at her own stolen car. The weight of her identification testimony is a matter for the jury. Thornton v. State. Even if the trial court erred in admitting the identification testimony, the error was harmless. Greeson’s identity is not a central issue. The evidence is uncontroverted that he was driving the stolen Plymouth when the police chase started. Given the other evidence in the case, it is highly improbable that any error by the trial court in admitting Long’s identification testimony contributed to the verdict. See Bradley v. State.

3. Greeson also contends the trial court erred in sentencing him as a recidivist because the State did not afford him adequate pre-trial notice that it intended to present evidence of his recidivism. Under Gates v. State, prior notice of each conviction to be introduced in aggravation of punishment by the State at the sentencing phase of the trial must be given to the defendant or his attorney. See OCGA § 17-10-2 (a). Greeson argues that the State’s attachment of his criminal history to a notice that his convictions would be used in aggravation of punishment was insufficient notice. He relies on Ramsey v. State, in which our Supreme Court found that a Federal Bureau of Investigation “rap sheet,” listing “no courts, case or indictment numbers; no list of the convictions, pleas, etc.,” and which included a disclaimer with regard to its accuracy, was insufficient as a matter of law. In contrast, the prosecution’s attached criminal history listed the date of arrest, the court, the offense, the arresting agency, and the disposition of each of Greeson’s offenses. The notice is as specific as was found sufficient in Peters v. State. The trial court did not err in considering these offenses for purposes of sentencing Greeson as a recidivist.

4. Greeson next claims the indictment varied fatally from the evidence produced at trial. In an indictment:

1) the allegations must definitely inform the accused as to the charges against him as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance “fatal.”

(Citation omitted.) Abney v. State The indictment states that Greeson committed theft by receiving “a 1997 Plymouth Breeze, a motor vehicle, the property of Michael Long.” Greeson complains that there is no evidence that Michael Long owned the stolen car, or even as to who “Michael Long” was. The evidence does show that Jamie Long bought the car with her husband, whose first name is never given. The variance between the indictment and the evidence is not fatal. The State showed someone other than Greeson owned the Plymouth, and the indictment gave sufficient notice of the property which was the subject of the prosecution. The technical quality of an owner’s interest need not be pursued in a prosecution for theft by receiving, because ownership is important only in the sense of whether the goods were owned by someone other than the accused. See Causey v. State.

5. Greeson also argues that his defense counsel’s failure to discover before trial the identity of Lewis Lonaker, the mechanic who Camp testified “peeled” the ignition on the Plymouth, merits a new trial based on newly discovered evidence. We again disagree.

The six criteria for success in an extraordinary motion for new trial on grounds of newly discovered evidence are: (1) that the evidence has come to Greeson’s knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness. Timberlake v. State.

Even if we accept that Greeson did not know of Lonaker’s existence before the trial, Lonaker’s testimony would not have been so material that its presentation would have probably produced a different result. Greeson knew Camp was a car thief and that the Plymouth was hot wired. The weight of these facts is not diminished by who actually “peeled” the steering column. Lonaker’s testimony is not so directly material to the central question of whether Greeson knew the car was stolen that it would probably have resulted in a different verdict if presented to the jury.

6. Finally, Greeson claims he received ineffective assistance of counsel.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.

(Citations omitted.) Chapman v. State. “The trial court’s determination with respect to effective assistance of counsel will be affirmed unless the trial court’s findings are clearly erroneous.” Id. at 350 (2). See also Strickland v. Washington.

Greeson points out that his trial counsel based the entire defense on the testimony of Camp, an impeachable felon and car thief, while failing to investigate and secure the testimony of Lonaker. Assuming, without deciding, that counsel’s failure to investigate and call Lonaker was ineffective assistance of counsel, Greeson cannot show that but for counsel’s errors the outcome of the trial would have been different because the proffered testimony of Lonaker was not so material that it was reasonably likely to change the result of the trial. Greeson argues that this case is similar to Richardson v. State in which we found that defense counsel’s deficient performance prejudiced the defense. Richardson, however, is distinguishable because we found trial counsel’s failure to contact two alibi witnesses could have prejudiced the defense where the State’s case relied largely on the identification testimony of the victim. The State’s case here was very strong, and Lonaker is not an alibi witness. The trial court did not err in denying Greeson’s motion for new trial on grounds of ineffective assistance of counsel.

Judgment affirmed.

Pope, P. J., and Mikell, J, concur.

Decided January 7, 2002

Larry D. Wolfe, for appellant.

Patrick H. Head, District Attorney, Kathryn E. Cozzo, Amy H. McChesney, Assistant District Attorneys, for appellee.

        Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998).

        McDaniel v. Oliver, 172 Ga. App. 109, 110 (322 SE2d 1) (1984).

        Phillips v. State, 251 Ga. App. 179, 181 (5) (553 SE2d 847) (2001).

        Keller v. State, 221 Ga. App. 846, 848 (3) (473 SE2d 194) (1996).

        Towns v. State, 136 Ga. App. 467, 468 (1) (221 SE2d 631) (1975).

        Jacobs v. State, 207 Ga. App. 714, 715 (1) (429 SE2d 256) (1993).

        Thornton v. State, 161 Ga. App. 296, 297 (1) (287 SE2d 749) (1982).

        Bradley v. State, 148 Ga. App. 722, 724 (2) (252 SE2d 648) (1979).

        Gates v. State, 229 Ga. 796, 797 (4) (194 SE2d 412) (1972).

        Ramsey v. State, 241 Ga. 426, 427 (2) (246 SE2d 190) (1978).

        Peters v. State, 131 Ga. App. 513, 516 (9) (206 SE2d 623) (1974).

        Abney v. State, 240 Ga. App. 280, 282 (2) (523 SE2d 362) (1999).

        Causey v. State, 139 Ga. App. 499, 500 (1) (229 SE2d 1) (1976).

        Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980).

        Chapman v. State, 273 Ga. 348, 349-350 (2) (541 SE2d 634) (2001).

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Richardson v. State, 189 Ga. App. 113 (375 SE2d 59) (1988).


text:
    A02A0013.
    RAYFIELD v. FARRIS.
    (558 SE2d 748)
   Phipps, Judge.

Amy Rayfield appeals from a jury verdict entered against her in this automobile collision case. Rayfield asserts that the trial court erroneously failed to instruct the jury on the doctrine of sudden emergency. We disagree and affirm.

The evidence showed that a Chevrolet Blazer driven by Rayfield struck the rear end of a pickup truck driven by Thomas Hughes, injuring Hughes’s passenger, Beulah Farris. Rayfield testified that she had been following the pickup truck for 15 to 20 minutes. Shortly before the collision, on a straight, flat section of roadway, Rayfield looked down to push a button on her radio. When she glanced up, Rayfield saw that the pickup truck and the vehicles in front of it were stopping. At that point, the pickup truck was approximately 20 to 25 feet away. Rayfield testified that she had a “sudden reaction, just slam on my brakes, that’s all I could think to do.” But, according to Rayfield, her brakes did not work and the Blazer hit the pickup truck. The jury returned a verdict for Farris in the amount of $30,000.

Rayfield submitted two requests to charge concerning “sudden emergency.” Request to Charge No. 12, titled “Sudden Emergency; Unexplained Mechanical Defect,” stated that

anything which operates to deprive a person of ability to exercise his intellectual power and guide his acts thereby will relieve him of any imputation of negligence that otherwise might arise from his conduct. [Whether] an emergency exists or not is a question for determination by the jury. A sudden mechanical defect [of] which a person is not previously aware ... is included in the definition of sudden emergency. It is up to you to determine whether such a sudden emergency occurred and whether the defendant exercised that degree of care as is required when a sudden emergency occurs.

Request to Charge No. 13, titled “Emergency,” stated that

[o]ne who is confronted with a sudden emergency which was not created by one’s own fault, and is without sufficient time to determine accurately and with certain [t]y the best thing to be done, is not held to the same accuracy of judgment as would be required of that person if he/she had more time for deliberation. The requirement is that the person act with ordinary care under all particular facts and circumstances surrounding the situation.

The court did not give either charge, and Rayfield’s counsel objected.

We find no error because neither charge was warranted by the evidence in this case. The defense of sudden emergency applies only to those acts that occur immediately after the apprehension of the danger or crisis. The defense is not available unless the evidence shows that the sudden peril offered the defendant a choice of conduct without time for thought, so that any negligence in the defendant’s choice may be attributed to lack of time to assess the situation rather than lack of due care.

The doctrine “requires that the person confronted by the emergency have the opportunity to exercise one of several reasonable alternative courses of action. In the absence of such factors, there can be no conduct to which to apply the standard and the doctrine is inapplicable. (Cit.)”

Rayfield testified that when she looked up from her radio, her car was only 20 to 25 feet behind the pickup truck and she slammed on her brakes. Then, according to Rayfield, the sudden emergency occurred — her brakes failed. There was no evidence that, in the necessarily brief period between the failure of the brakes and the collision, Rayfield had any option but to hit the pickup truck. In the absence of evidence that Rayfield had any choice during that period, the doctrine of sudden emergency did not apply, and the court did not err in failing to charge the jury on it.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

Decided January 7, 2002.

Davis & Kreitzer, John W. Davis, Jr., Steven W. Kreitzer, for appellant.

Coppedge & Leman, Warren N. Coppedge, Jr., for appellee.

       See Wadkins v. Smallwood, 243 Ga. App. 134, 139 (5) (530 SE2d 498) (2000) (“A request to charge must embody a correct, applicable and complete statement of the law, legal and perfect in form and adjusted to the pleadings and evidence. . . .”).

        Lucas v. Love, 238 Ga. App. 463, 465 (4) (a) (519 SE2d 253) (1999).

        Jimenez v. Morgan Drive Away, 238 Ga. App. 638, 641 (2) (a) (519 SE2d 722) (1999); MARTA v. Mehretab, 224 Ga. App. 263, 264 (1) (480 SE2d 310) (1997).

        Thomas v. Stairs, 215 Ga. App. 288, 289 (1) (450 SE2d 326) (1994).

       See MARTA, supra at 264-266.


author: Johnson, Presiding Judge.

text:
    A01A2097.
    ATKINS v. THE STATE.
    (558 SE2d 755)
   Johnson, Presiding Judge.

Christopher Atkins was charged with two counts of aggravated assault and one count of making terroristic threats. A jury found him guilty on the aggravated assault counts, and the trial court directed a verdict of not guilty on the terroristic threats count. Atkins appeals, alleging numerous errors by the trial court and numerous grounds of ineffective assistance of counsel. Because each of his allegations of error lacks merit, we affirm Atkins’ convictions.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that the victims were sitting in a car at a gas station. Atkins walked up to the car and opened the driver’s door. He pointed a gun at the driver and demanded money. When the driver did not comply immediately, Atkins fired at the hood of the car. He fired another shot which injured the driver’s thigh. Atkins then shot the passenger in the left leg and shot the driver in the head. Atkins was positively identified by both victims from a photo lineup and at trial.

1. In his first enumeration of error, Atkins contends the trial court erred in failing to administer the jury oath mandated by OCGA § 15-12-139. The record shows that the trial judge began the process of qualifying the jury by asking whether anyone on the panel knew or was related to either of the prosecutors trying the case. There were no affirmative responses from the jury panel. Immediately upon realizing that she had failed to administer the jury oath before asking the first question on voir dire, the trial judge administered the jury oath. Once the oath was administered, the trial judge proceeded with the remaining qualifying questions. Atkins asserts that the trial judge erred in failing to repeat the first qualifying question after the oath was administered. We find no reversible error.

Atkins correctly points out that the failure to administer the jury oath mandated by OCGA § 15-12-139 constitutes reversible error. However, the present case does not deal with a total failure to administer the jury oath. Here, the trial judge merely failed to repeat one qualifying question after the oath was administered. This creates an irregularity in the giving of the jury oath, not a total failure to administer the oath.

In addition, as for the irregularity, the record shows that no juror responded affirmatively to the question, and Atkins has not produced a juror who was related within the prohibited degree. Therefore, Atkins has failed to demonstrate any prejudice by the trial judge’s failure to administer the jury oath prior to asking the first qualifying question. We find no error.

2. Atkins contends the trial court commented on the evidence four separate times. We find that the trial court’s statements do not constitute comments on the evidence contrary to OCGA § 17-8-57, which prohibits an expression or intimation of opinion by the trial court as to what has or has not been proven.

(a) After asking the qualifying questions, the trial court admonished the prospective jurors to “please listen carefully to the facts as contained in the indictment.” Prior to this comment, the trial court informed the jurors that the indictment “contains the charges that have been placed against Mr. Atkins by the district attorney.” The trial court also stated in its preliminary charge that the state had the burden to prove that the “material elements of the charges exist, that the charges contained in the indictment are in fact true.” Based on the record, we find that the trial court’s inadvertent reference to the allegations in the indictment as “facts” cannot be construed as an expression of opinion or a comment on the evidence.

(b) Likewise, the trial court’s reference to the indictment as “evidence” was not an expression of opinion as to what had been proven. After the jury was selected and sworn, but before the trial began, the trial judge cautioned the jury not to discuss the case when the jury was excused for lunch. The trial court mistakenly stated, “You’ve heard no evidence other than the indictment.” Subsequently, the trial court gave an accurate instruction as to how the indictment should be considered when the jury was instructed as follows: “I caution you that the fact that the accused has been indicted by the grand jury is not evidence of his guilt. You should not consider the indictments as evidence or implication of guilt.”

It is well established that a mere verbal inaccuracy resulting from a slip of the tongue which does not clearly mislead or confuse the jury is not reversible error. Because the trial court’s erroneous statement was thoroughly corrected during the trial court’s subsequent charge to the jury, we find no possibility that the jury was confused or misled. Therefore, any error must be deemed harmless.

(c) During preliminary instructions, the trial court told jurors, “you have to base your decision on what you do hear, and what is said to you by the attorneys in their questions and to the witnesses.” This statement occurred while the trial court was explaining to the jury that the defendant did not have the burden of proof. While it is true that what the attorneys say in their arguments does not constitute evidence, attorneys’ questions provide the context for considering the witnesses’ responses, which is evidence. Thus, we find that the trial court’s statement is not fatal. It did not intimate what the trial judge believed, nor did it amount to an expression of her opinion pursuant to OCGA § 17-8-57. Moreover, any misstatement was not substantive and cannot be said to have misled or confused the jury. The trial court’s charges as a whole were adequate to instruct the jury as to how to consider the evidence.

(d) As the jurors were being dismissed for lunch before the trial began, the trial court admonished the jurors to avoid contact with the attorneys and witnesses. The trial court directed the jurors to report anything they might hear outside the courtroom “so we can make sure that we don’t have any problems with your hearing any evidence outside of the courtroom.” Of course, there is no evidence outside the courtroom. However, the trial court’s misstatement was later corrected when it properly defined evidence as the witnesses’ testimony and documents admitted during the trial. We find'no error sufficient to warrant reversal of Atkins’ convictions.

3. Atkins contends the trial court erred in refusing to declare a mistrial when a police officer referred to a lineup photograph as being from a prior arrest. According to Atkins, this comment impermissibly placed his character into evidence. We find no error. The Supreme Court of Georgia has held that “such evidence, without more, contains nothing to indicate that the defendant was guilty of previous crimes . . . [and] did not put the appellant’s character [in] issue.” The officer’s testimony that Atkins’ picture was on file because he had previously been arrested did not require the trial court to grant a mistrial or issue curative instructions. As in Gravitt, this statement did nothing to indicate that Atkins was guilty of previous crimes and did not place Atkins’ character in issue.

4. Atkins complains that the trial court interfered with the jury’s factfinding role by encouraging them to rush through their deliberations.'We find no such error. The record shows that on the second day of trial, the jury spent a large amount of time in the jury room. In addition, Atkins’ counsel requested a longer than usual, earlier than usual lunch break so that he could obtain and serve a subpoena on an unexpected witness. In an effort to diffuse the jury’s anticipated anxiousness over being held in the jury room much of the morning, the trial court spoke to the jury before sending the jurors to lunch. The trial judge apologized to the jurors for the delay and informed the jurors that “[t]here shouldn’t be any reason why we won’t be done with the case, completely done today.” We do not find that this comment interfered with the jury’s factfinding role or encouraged the jury to later rush through its deliberations.

5. Atkins maintains that the trial court erred in failing to have the bench conferences recorded. In felony cases, it is the duty of the trial judge to direct the recordation of the trial proceedings, including “all motions, colloquies, objections, rulings, evidence, . . . and all other proceedings which may be called in question on appeal.” However, Atkins has not attempted to demonstrate any harm or prejudice resulting from this failure to record. Nor has Atkins fulfilled his duty to have the record completed by reconstruction pursuant to OCGA § 5-6-41.

When the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f). Because Atkins has not had the record completed by reconstruction, we cannot determine that any harm was done by the failure to record the bench conferences. Indeed, Atkins’ trial counsel testified that he did not ask for the bench conferences to be recorded because “[a]t the time nothing was going on in the conferences, as I recall, that I saw as having any bearing on the outcome of the case. The case was pretty straightforward.” This enumeration of error lacks merit.

6. Atkins’ remaining enumerations of error relate to his ineffective assistance of counsel claim. He cites six instances of alleged ineffective assistance. In order to prevail on these claims, Atkins has the burden of proving (1) that his trial counsel's performance was deficient, and (2) that but for this deficiency there is a reasonable probability the outcome of the trial would have been different. In addition, a strong presumption exists that trial counsel performed within the wide range of reasonable professional assistance and that challenged actions might be considered sound trial strategy. The matter of when and how to raise objections is generally a matter of trial strategy, and counsel’s decisions on matters of tactics and strategy, even if unwise, do not amount to ineffective assistance of counsel. The trial court’s finding that Atkins was afforded effective assistance of counsel must be upheld on appeal unless clearly erroneous.

Atkins maintains his trial counsel was deficient for (1) not objecting to the court’s handling of the jury oath, (2) not objecting and moving for mistrial when the trial court allegedly commented on the evidence, (3) not demanding a mistrial when a police officer referred to a lineup photograph as being from a prior arrest, (4) not objecting to the trial court’s comments purportedly rushing the jury through deliberations, and (5) not objecting when bench conferences were not recorded. Because we have already addressed and concluded in Divisions 1 through 5 that Atkins’ enumerations of error with respect to these issues do not constitute reversible error, Atkins cannot show that his trial counsel was deficient in failing to object or otherwise seek redress as to those matters and cannot show that his trial counsel’s actions so prejudiced his defense that the trial outcome would be different.

In Atkins’ remaining enumeration of error, he alleges trial counsel was deficient for not reserving objections to the jury charge. However, Atkins has failed to establish any harm which he has suffered as a result of this omission. He has not identified any requested charges which were not given. Nor has he cited any charges given, other than the preliminary charges already addressed in Division 2, which might constitute reversible error. The trial court did not err in denying Atkins’ motion for new trial based on his ineffective assistance of counsel claim.

Judgment affirmed.

Ellington, J., concurs. Ruffin, J., concurs in judgment only.

Decided January 8, 2002.

Mary Erickson, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

       See Grant v. State, 272 Ga. 213 (528 SE2d 512) (2000).

       See generally Slaughter v. State, 100 Ga. 323, 326 (28 SE 159) (1897).

       See Marshall v. State, 266 Ga. 304, 306 (5) (466 SE2d 567) (1996).

        Matthews v. State, 268 Ga. 798, 805 (7) (493 SE2d 136) (1997).

       Id.

       See generally Hyman v. State, 272 Ga. 492, 495 (3) (531 SE2d 708) (2000); Gober v. State, 247 Ga. 652, 655-656 (3) (278 SE2d 386) (1981).

        Gravitt v. State, 239 Ga. 709, 712 (5) (239 SE2d 149) (1977); see also Hines v. State, 246 Ga. App. 835, 836 (1) (541 SE2d 410) (2000).

       See Crawford v. State, 267 Ga. 543, 547 (10) (480 SE2d 573) (1997).

       OCGA § 5-6-41 (a), (d).

       See Boone v. State, 250 Ga. App. 133, 139 (11) (549 SE2d 713) (2001); Ramsay v. State, 220 Ga. App. 618, 626 (13) (469 SE2d 814) (1996).

       See Boone, supra.

       Id. at 139-140.

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Swint v. State, 250 Ga. App. 573 (552 SE2d 504) (2001).

        Davis v. State, 238 Ga. App. 84, 89 (7) (517 SE2d 808) (1999).

       See Gibson v. State, 272 Ga. 801, 804 (4) (537 SE2d 72) (2000).

       See Swint, supra at 574.

        Sabbs v. State, 248 Ga. App. 114, 115 (2) (545 SE2d 671) (2001).

       See Jenkins v. State, 268 Ga. 468, 473 (10) (491 SE2d 54) (1997).


text:
    A01A1998.
    In the Interest of J. S. J., a child.
    (558 SE2d 763)
   Blackburn, Chief Judge.

Following a finding by the Juvenile Court of DeKalb County (“Juvenile Court”) that his daughter, J. S. J., was deprived, appellant appeals, contending that: (1) Mississippi, not Georgia, retained jurisdiction over the matter pursuant to the Uniform Child Custody Jurisdiction Act (“UCCJA”) and the Parental Kidnapping Prevention Act (“PKPA”); (2) the Juvenile Court erred by failing to transcribe its questioning of J. S. J. in chambers; and (3) the evidence was insufficient to support the finding of deprivation. Because Mississippi, not Georgia, should have retained jurisdiction over this matter pursuant to the UCCJA, we vacate.

The record shows that appellant and J. S. J.’s mother were divorced in Mississippi, where appellant still resides. Pursuant to the Mississippi divorce decree, the mother received primary custody of J. S. J., and appellant was given visitation rights. Subsequently, on April 17, 1999, the Chancery Court of Forrest County, Mississippi (“Chancery Court”), granted appellant temporary custody of J. S. J., and, on May 25, 2000, the Chancery Court modified its prior custody decree, granting primary custody to appellant. Although the reasons behind this custody modification are not dispositive here, it is significant to note that, in its modification order, the Chancery Court found that “the parties have continued to use the child as a pawn in their ongoing dispute between each other and . . . both parties have acted in a manner that is detrimental to the child and not in the best interest of the child.”

On December 1, 2000, J. S. J. fléw to Atlanta to visit her mother for a weekend. J. S. J.’s mother, however, did not return the child as she was supposed to do, and, on December 15, 2000, the Chancery Court explicitly found that it had jurisdiction over the matter pursuant to the UCCJA. Exercising this jurisdiction, the Chancery Court ordered that the mother, who remained in Georgia, be incarcerated for contempt of its prior custody order by absconding with J. S. J. Meanwhile, back in Atlanta, the mother, after having J. S. J. examined by a psychologist and a nurse, filed complaints against appellant with the Georgia Department of Family & Children Services (“DFACS”), alleging child abuse and molestation. On January 1, 2001, DFACS filed a deprivation petition in the Juvenile Court, which it amended on January 10, 2001. DFACS furthered the mother’s allegations of abuse in this petition.

Appellant challenged DFACS’ petition, arguing, among other things, that Georgia lacked jurisdiction over the matter pursuant to the UCCJA and the PKPA. The Juvenile Court rejected appellant’s arguments, and it purported to exercise emergency jurisdiction over the matter pursuant to OCGA § 19-9-43 (a) (3) (B). Thereafter, the Juvenile Court found J. S. J. to be a deprived child and placed her in the temporary custody of DFACS. Appellant takes issue with the Juvenile Court’s findings.

1. Appellant contends that the Juvenile Court lacked jurisdiction over this matter pursuant to the UCCJA. We agree.

Ordinarily, jurisdiction over child custody cases is in the county of residence of the legal custodian, and one of the purposes of the UCCJA is to assure that litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning [her] care, protection, training, and personal relationships is most readily available and also to assure that the courts of this state decline the exercise of jurisdiction when the child and [her] family have a closer connection with another state; and the UCCJA shall be construed to promote its general purposes. Lightfoot v. Lightfoot. In other words, the UCCJA favors the hearing of custody matters in a child’s home state, the state in which the child, immediately preceding the time involved, lived with [her] parents, a parent, or a person acting as a parent for at least six consecutive months. OCGA § 19-9-42 (5).

(Citations and punctuation omitted.) Rozier v. Berto. Based on these standards, the home state in this case is clearly Mississippi.

In addition, OCGA § 19-9-48 (b) provides:

Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of the person entitled to custody or has improperly retained the child after a visit or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state, the court may decline to exercise its jurisdiction if this is just and proper under the circumstances.

There are, however, some exceptions to these rules relating to a child’s home state and custody violations. OCGA § 19-9-43 (a) (3) allows a Georgia court to exercise jurisdiction over a child custody matter if the child is physically present in Georgia, and if either the child has been abandoned or it is a necessity to protect the child from mistreatment, abuse, or neglect. This exercise of jurisdiction, however, should not be employed without grave need.

Before invoking jurisdiction under this exception, a Georgia trial court should remember the purpose of the statute and determine that an emergency exists which demands the exercise of jurisdiction by such Georgia court rather than by the courts of the child’s home state. As a general matter, if the emergency pled before the court developed in the home state prior to the time the child was brought into Georgia, Georgia courts should decline jurisdiction in favor of the home state, absent compelling reasons for the Georgia court to do otherwise.

Rozier, supra at 429.

Contrary to the finding of the Juvenile Court, there was no true emergency which required that it exercise its jurisdiction for the protection of J. S. J. The abuse of which J. S. J.’s mother complains arose in Mississippi, not Georgia, and, other than some inconvenience for J. S. J.’s mother, these claims should have been adjudicated in the home state, where the courts were already familiar with J. S. J.’s situation and well aware of the way in which her parents were using her to strike out at each other. “There is nothing here which would have justified litigating the matter in Georgia, rather than [Mississippi], except the convenience of the [mother].” Rozier, supra.

In addition, the evidence of neglect and abuse produced by J. S. J.’s mother is not so egregious that Georgia’s emergency jurisdiction should have been triggered. For example, the mother’s most compelling piece of evidence was a letter prepared by a nurse who examined J. S. J. In this letter, the nurse reported a small two-millimeter lesion of J. S. J.’s hymen and a general unwillingness by J. S. J. to cooperate. Based on these observations, the nurse opined that J. S. J. had likely been sexually “exposed and maltreated,” despite the fact that J. S. J. cried out during the exam that “[m]y daddy didn’t do anything.” During the deprivation hearing, however, the nurse admitted that she did not know the cause of J. S. J.’s lesion and stated that it could have been caused by either a healing infection or a straddle injury. Thus, the nurse’s testimony proved equivocal at best.

In its May 25, 2000 order granting custody of J. S. J. to appellant, the Chancery Court found that J. S. J.’s mother had made unfounded allegations of sexual abuse in at least three jurisdictions. In fact, the Chancery Court found the mother’s allegations of abuse so disingenuous that it mandated that she receive “counseling to deal with her unsubstantiated belief that [appellant] has abused [J. S. J.]” prior to receiving custody of her daughter during summer months. By exercising jurisdiction in this case, the Juvenile Court inappropriately allowed the mother to circumvent these critical judgments of her credibility made by J. S. J.’s home state. The UCCJA was designed to prevent exactly such a usurpation of the home state’s power.

Moreover, the briefs provided to this Court by both the mother and DFACS make it clear that these parties were attempting to relitigate matters under consideration in Mississippi. Indeed, much of these parties’ briefs is devoted to criticisms of procedures employed by both the Chancery Court and the Mississippi guardian ad litem. In fact, both DFACS and J. S. J.’s mother go so far as to accuse the Mississippi court and guardian of malfeasance, alleging that they purposely ignored evidence that J. S. J. had been mistreated by her father. Allowance of such inappropriate interstate bickering would be tantamount to endorsing the forum shopping the UCCJA decries.

Furthermore, DFACS’ argument that the deprivation proceeding was not technically a custody matter, and therefore not subject to the provisions of the UCCJA, is erroneous and does not alter the result here. OCGA § 19-9-42 (3) defines a “custody proceeding” as including “proceedings in which a custody determination is one of several issues, such as an action for divorce or separation and includes child neglect and dependency proceedings and adoption proceedings.” Based on the plain language of the statute, a deprivation proceeding would be encompassed in this definition, as it is a proceeding regarding child neglect and dependency in which child custody is one of many issues. Therefore, contrary to DFACS’ argument, jurisdiction over deprivation proceedings involving a child with a foreign home state is governed by the UCCJA. To hold otherwise would allow noncustodial parents to circumvent the UCCJA by merely changing the label of their petition from “change in custody” to “deprivation.” We cannot allow the important purposes of the UCCJA to be so easily nullified.

Lewis v. Winzenreid supports this determination. In Lewis, our Supreme Court held:

The juvenile courts of this state should not entertain deprivation proceedings brought by a non-custodial parent to obtain custody from a non-resident custodial parent, for there is a great likelihood in such a situation that the allegations of deprivation will be motivated less by concern for the child than by a desire to avoid the more stringent standard of proof applicable in a modification action in the superior court, wherein a non-custodial parent is required to establish a material change of circumstances substantially affecting the interest and welfare of the child arising since the original decree.

(Punctuation omitted.) Id. at 462-463.

The conclusion reached in Lewis [can be] summarized . . . as follows: [The p]arental fight over custody of [a] child that was brought as [a] deprivation proceeding but did not make any valid allegations of deprivation as defined by OCGA § 15-11-2 (8) was not a valid deprivation proceeding within the jurisdiction of the juvenile court, but was a custody dispute that fell within the jurisdiction of the superior court.

(Punctuation omitted.) In re M. C. J.

Finally, appellees argue that Georgia could not have transferred this deprivation case back to the Chancery Court because that court lacked jurisdiction over deprivation matters. This overly technical attempt to circumvent the goals of the UCCJA lacks merit. As in Georgia, where the superior court may transfer a deprivation case to the juvenile court when necessary, the Mississippi chancery court may likewise transfer appropriate cases to the youth court of that state. As such, contrary to appellees’ contentions, this case could have properly been transferred to Mississippi, where the Chancery Court could ultimately determine what court in that state should handle the allegations of deprivation. Again, the UCCJA was designed to prevent forum shopping in matters concerning the welfare of children, and its major means of achieving this goal is to localize legal proceedings to the home state of the child.

Decided January 9,2002

Parks, Chesin, Walbert & Miller, David F. Walbert, William J. Atkins, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Robert G. Nardone, for appellees.

Thus, for all of the foregoing reasons, the Juvenile Court erred by assuming jurisdiction over the case at hand, and we therefore vacate the Juvenile Court’s deprivation order.

2. As we have found that the Juvenile Court inappropriately assumed jurisdiction of this matter, appellant’s remaining enumerations are rendered moot.

Judgment vacated.

Pope, P. J., and Mikell, J., concur.

       OCGA § 19-9-40 et seq. We note that, subsequent to this decision, Georgia modified its version of the UCCJA. Citations in this opinion refer to the UCCJA as it existed when this case was originally decided, as the new version of the statute does not indicate that it was intended to have retroactive effect.

       28 USCS § 1738A.

        Lightfoot v. Lightfoot, 210 Ga. App. 400, 402 (2) (436 SE2d 700) (1993).

        Rozier v. Berto, 230 Ga. App. 427, 428-429 (496 SE2d 544) (1998).

        Lewis v. Winzenreid, 263 Ga. 459 (435 SE2d 602) (1993).

        In re M.C.J, 271 Ga. 546, 547 (523 SE2d 6) (1999).