author: Birdsong, Presiding Judge.

text:
    A92A1428.
    BAEZ v. THE STATE.
    (425 SE2d 885)
   Birdsong, Presiding Judge.

Roberto Baez appeals the denial of his motion to suppress in this prosecution for possession of cocaine with intent to distribute. The evidence was seized with a search warrant on December 12, 1988. Baez’ guilty plea sentence was vacated by writ of habeas corpus on the basis of ineffective assistance of counsel. New counsel filed a motion to suppress, alleging, inter alia, that the search stemmed from an illegal pretextual arrest.

Evidence at the suppression hearing showed that appellant was given a citation on November 3, 1988, for failing to have or exhibit a, driver’s license; Douglasville Police Chief Whisenant testified that he and two other officers served a bench warrant on appellant at his home for his failure to appear in traffic court; after arresting and handcuffing Baez, the officers went in a bedroom where the chief spied a plastic bag containing what seemed to be cocaine. On this basis, the officers obtained a search warrant. Appellant attempted to show that the traffic stop was pretextual and the arrest was pretextual and illegal. He sought to show by a witness that months before this arrest, Baez’ neighbor was asked by police to spy on appellant, and this neighbor did spy on appellant.

At the suppression hearing counsel for appellant stated: “Before we ... go into the motion to suppress . . . there was a bench warrant ... or some warrant issued by the City Court of Douglas-ville. . . . I’ve been unable to obtain copies of certain documents, especially that. ... I’d ask the court to do an in camera and at least grant me that information, if any, prior to the motion to suppress so that I can represent my client,effectively. [ASSISTANT DISTRICT ATTORNEY (ADA)]: I don’t think the defense has any right to discovery on a motion to suppress. . . . [COUNSEL]: I’m asking the court specifically for procedural due process ... to allow discovery in this particular case prior to the motion to suppress. I haven’t seen an arrest warrant which the State obviously is going to say validates the arrest of my client on the date that there was a search; I haven’t seen it; I don’t know whether one exists. . . . We’ve asked for — [THE COURT]: I’ll have to see what the evidence produces. ... An in camera won’t do any good if they’re not producing the evidence ... I have to go on what I hear from the evidence, not what I see in the file. ... If they don’t want to introduce something, I can’t say well, I know it really exists, therefore, I’m not going to hold them to the standard of proof they need on the hearing itself because I know it exists in their file. . . . [COUNSEL]: I’m not even sure which judge may have signed this particular warrant, if it in fact exists.” (Emphasis supplied.)

The State then gave evidence. Police Chief Whisenant testified that on December 12, 1988, he went to appellant’s house “on a bench warrant signed by the municipal court judge. . . . [COUNSEL]: [hearsay objection]. I would object to any mention of any bench warrant without the presentation of that bench warrant in the evidence. [THE COURT]: I will allow the testimony. You’ve got to remember, I’ve heard, a lot about this case already; I know about the existence of the traffic offense, the bench warrant, all this stuff — [COUNSEL]: I .. . haven’t as the attorney for Mr. Baez seen any bench warrant. [THE COURT]: There’s no need to tiptoe around these things; I know what they’re talking about and it’s already been put into evidence in other parts of hearings. [COUNSEL]: Judge, I’m not aware of this. [THE COURT]: So, I’ll overrule your objection as to . . . why he went there. Just like the officer says, they went because they had an arrest warrant. [COUNSEL]: But, Judge, in the motion to suppress, we are attempting to attack this bench warrant. Again, if there is one in existence ... I would like to see it and if we’re going to . . . have this officer talk about it, I’d ask the court to order the State to produce it to me so that I can cross-examine this witness. I haven’t seen it. I’ve looked through the Clerk’s files; it’s not in the Clerk’s files. I’ve gone to the Douglasville Police Department and they tell me they’ve turned their files over to the State. I did today see . . . the original traffic citation. [Someone] had walked out with the bench warrant; I was unable to see it, if one exists. [THE COURT]: It might show up then. [COUNSEL]: I’m asking that I be given the opportunity to see it before this officer is questioned. [THE COURT]: I’ll allow the officer to testify because, in fact, an officer doesn’t have to have the warrant in his possession. All he has to know ... is that it exists. . . . [COUNSEL]: But, we don’t know whether there is in existence a [benchJ warrant. [THE COURT]: He’s testifying that the reason he went to his house was to arrest him on a bench warrant that he knew to exist out of the municipal court or the recorder’s court. [COUNSEL]: Judge, there is no such animal as a bench warrant that can issue out of a recorder’s court. [THE COURT]: Well, that may well be true . . . but if this officer believed that he was there to make an arrest on such a warrant and that explains his conduct. . . that’s his belief. . . . [COUNSEL]: Judge, I would object to that, specifically under United States v. Hensley, 469 U. S. 221 (105 SC 675, 83 LE2d 604) [in which the officer] was wrong, and the court said that that’s an illegal arrest. [THE COURT]: That was after the evidence was in and somebody had to make a decision; you have to get the evidence in first. . . . [COUNSEL]: But ... I as the defense lawyer haven’t seen this bench warrant. I don’t know whether one exists . . . and I think before he can testify to the existence that we should be allowed to see one. [ADA]: I’m not asking him to testify to the existence of the arrest warrant; I’m asking him to testify as to why he was at the location on the date in question.” (Emphasis supplied.)

Thereafter, the police chief explained that he went to appellant’s house to arrest him pursuant to a bench warrant; the police chief did not personally obtain the bench warrant from the recorder’s court; he testified the warrant was in the possession of the other officers present, Graff and White. (Graff and White never testified.) Usually when people do not appear for traffic court, the chief simply calls them on the phone and asks them to come down to court; but he intended to arrest appellant and he intended not to allow appellant to make bond and return home; when appellant came out of a bedroom door, the officer handcuffed him and searched him for weapons; when appellant told them his wife was deceased, the chief decided to turn his children over to the Department of Family & Children Services rather than to allow appellant to return; it was only when the police chief went in the bedroom to get the children that he saw money strewn about and, while helping the oldest child pick up the money, he spied the suspected cocaine.

Defense counsel objected: “I’ve yet to see a legal entry into this man’s house. . . . [T]hey say it was pursuant to a legal arrest warrant — and I haven’t seen any legal act this officer did once that door was open.” (Emphasis supplied.) Certain evidence exhibits were introduced, but not a bench or arrest warrant, and counsel said: “There has been some testimony concerning a bench warrant for the arrest of my client. I don’t believe that bench warrant has been offered into evidence at this time. I would certainly make the same objection.” (Emphasis supplied.)

The court recessed and the hearing resumed a week later. The ADA objected that the question as to what “suspicious activity” the traffic officer had observed before stopping appellant, was irrelevant, but counsel responded that the entire subterfuge beginning with the pretextual traffic stop was to effect the search and was illegal. The State conceded that the motion to suppress goes to whether the warrant issued by the magistrate was illegal, but said: “He’s saying the reason he wants to go into the initial stop is because the police have been watching this specific defendant for a year [or] because he’s black in an all white neighborhood. . . . [N] either one is alleged in this motion to suppress. . . . [COUNSEL]: If the State is caught by surprise, I’m sure the court will grant them a continuance. ... I think there is a remedy for that. Let’s not suppress the truth, Judge. Let me get to the point. [THE COURT]: Get to the point. . . . [COUNSEL]: Officer . . . you can’t tell this court what suspicious activity there was; can you? [A]: At this point, I don’t really remember. [If I filed a miscellaneous report it would be on file]. . . . [ADA]: The State is not aware ... of any miscellaneous report ... in this case.” (Emphasis suppliéd.)

Officer Walker testified that on December 8, 1988, he was in court, signing arrest warrants for failure to appear before the judge. “[ADA]: And did you have an occasion to sign an arrest warrant for Roberto Baez? A. Yes. ... Q. And what would have been the cause of the issuance of that arrest warrant? A. That Mr. Baez failed to appear in court.” (Emphasis supplied.) The following exchange then took place: “[COUNSEL]: Judge, I believe that State’s Exhibit 1 [the search warrant] may be the warrant which this officer is being questioned about. May I see the exhibits which have previously gone into evidence? [THE COURT]: I’ve got State’s 1, which is the search warrant, and Defendant’s 1, which is the other search warrant; and then these . . . tickets. [COUNSEL]: Judge, I’ve just been provided a copy of the warrant in this particular case.” (Emphasis supplied.)

On cross-examination the officer testified that he completed warrants with the judge’s instructions for people who fail to appear in court. “Q. And is it your testimony to this court that you signed the arrest warrant? A. The procedure was the judge would issue a warrant; I would complete that . . . and the judge would actually sign the warrants at the end of the session. Q. Do you recall Mr. Baez’s case at all? A. Not specifically. . . . Based on my knowledge that I completed the warrant with this information, I would say that he did not [appear in recorder’s court that day]. ... Q. When did you last see the copy of this warrant? A. Approximately twenty minutes ago or thirty minutes ago. Q. Do you recall this case other than the fact that your signature appears on that warrant? ... A. I recall [the incident when he was arrested on] a failure to appear warrant; I was not present at the arrest. . . . Q. [Would you] have requested this warrant to issue? ... A. No. ... If the person . . . did not appear for court, the judge would instruct [whoever was completing the warrants for that] session to issue a warrant. ... Q. When did you hear about Mr. Baez next? A. I participated in execution of the search warrant. . . . Q. Going back to the bench warrant itself, are you familiar with the procedure which is used by the Douglasville Police Office when someone does not appear? [ADA]: [Objection] The officer testified that it was an arrest warrant, not a bench warrant. . . . [COUNSEL]: I’m not going to characterize it as a bench warrant or an arrest warrant . . . because I’m alleging that anything that was issued by this [police] officer was in fact illegal. [THE COURT]: Well, this officer has not issued anything; he said the court issued it. . . . This officer is not authorized to issue arrest warrants. He’s not a judicial officer. If it’s an arrest warrant, it would have to be done by some judicial [officer]. [COUNSEL]: (Interposing) And at this time no warrant concerning that is in evidence is my understanding. [THE COURT]: No, I don’t have ... in the pile any arrest warrant or bench warrant.” (Emphasis supplied.) Held:

1. The State, i.e., the prosecutor, made an assumption that the State did not have to prove appellant’s arrest was lawful or that the police entry into appellant’s home was lawful or that there ever existed an arrest warrant. The State assumed that when a criminal defendant challenges whether an arrest warrant even existed, the State has no burden whatever to prove it existed, so long as several persons assert that they saw an arrest warrant somewhere. On these assumptions, the State was allowed to introduce illegal evidence as if it were obtained through a lawful arrest. The State is incorrect in its assumptions and wastes judicial resources by proceeding in a prosecution based on challenged evidence, with no intention of producing a lawful arrest warrant, and offering no excuse whatever for its absence, thereby forcing the appellate court to suppress evidence illegally obtained.

The constitutional right of criminal suspects to be free of unlawful search and seizure is the same as the right of other persons, for our law does not presume guilt; the right protected, that of presumptively innocent people to be secure in their homes from unjustified, forcible intrusions by the government, is weighty, and it is not outweighed by practical problems. Otwell v. State, 201 Ga. App. 71, 73 (410 SE2d 178). The State has the burden to prove that a challenged search or seizure was lawful; a search challenged on any grounds is governed by OCGA § 17-5-30 (b), which provides that on a motion to suppress alleging an unlawful search or seizure, “[t]he judge shall receive evidence ... on any issue of fact necessary to determine the motion; and the burden of proving that the search and seizure were lawful shall be on the state.” See State v. Slaughter, 252 Ga. 435, 439 (315 SE2d 865).

If there was no arrest warrant, the police entry into appellant’s home was unlawful and his arrest was unlawful. The fruits of an unlawful arrest may not be introduced into evidence. Moore v. State, 155 Ga. App. 299, 300 (3) (270 SE2d 713). Although the trial court stated it thought an arrest warrant was introduced in other proceedings in this prosecution, nowhere is this proven, and according to the statement of the clerk of court below on request of this court, an arrest warrant was never a part of the record below.

The police chief who entered appellant’s house with two other officers by use of a purported arrest warrant testified he did not have the warrant and he believed officers Graff and White had the arrest warrant. Officers Graff and White never testified. The officer who testified he filled out the arrest warrant for issuance did not remember the particular instance; in any case, as the trial court correctly noted, this officer was not a judicial officer; he could not issue an arrest warrant and he did not issue an arrest warrant in this case. This officer implied that he was looking at “the” warrant on the stand, but in fact he testified he last saw “the arrest warrant” 20 minutes before the hearing. An arrest warrant was not put in evidence while he testified or at any other time. The participants in the suppression hearing refer obscurely to “this warrant” and “the warrant” or “the warrant in this case,” but it is entirely speculative what warrant or document the witnesses refer to. As it is clear the trial court had only the search warrant before it and affirmed it had no arrest or bench warrant before it, and no arrest warrant was ever introduced despite appellant’s repeated demand, no assumption can be made that “the warrant” referred to an arrest warrant. No arrest warrant was ever introduced. No judicial officer testified that he or she issued an arrest warrant. Despite appellant’s counsel’s repeated objections and requests, the trial court did not require the State to produce an arrest warrant or even account for its absence. The State never suggested it might produce an arrest warrant if it had a continuance. A week’s recess was taken in the middle of the suppression hearing, yet after court resumed the State still did not produce an arrest warrant. Despite its assurance to appellant that it would not hold the State to a lesser standard of proof, the court did so, and ruled on evidence which was not before it. If there was an arrest warrant in existence, no reason whatever appears for the State’s refusal to put it in evidence in the face of so many repeated objections and demands. The State’s refusal and inability to produce an arrest warrant in this case cannot be viewed as a mere oversight, particularly as the State was mute when at the end of the hearing appellant demanded that the trial court confirm in the record that it had no arrest warrant before it, and the trial court so confirmed. The State therefore forces the appellate court to conclude no arrest warrant existed at the time of the suppression hearing.

The State did not produce an arrest warrant even when appellant challenged its existence, and the record otherwise fails to reveal sufficient facts to sustain the State’s burden of proof. Accordingly, the State failed to carry its elementary burden to prove the lawfulness of the intrusion and arrest which resulted in the discovery of the contraband (see State v. Mincey, 167 Ga. App. 850 (2) (308 SE2d 18); Reddish v. State, 161 Ga. App. 170 (288 SE2d 266); Liskey v. State, 156 Ga. App. 45, 46 (1) (274 SE2d 89); Bland v. State, 141 Ga. App. 858 (234 SE2d 692)), and that evidence must be suppressed under the established law of this state.

2. Under the unusual circumstances in this case, where the State continued to insist upon the apparent existence of an arrest warrant but failed and refused to produce and introduce an arrest warrant, this court at oral argument on June 3, 1992, inquired of the clerk below as to whether there was such a warrant. The superior court clerk forwarded to this court a purported arrest warrant with her statement that such document “was never a part of the court record.” The document shows on its face that it was filed in the Douglas County Superior Court on July 7, 1992, more than a month after this court’s inquiry. Under all the circumstances, the State’s presentation to this appellate court of a purported arrest warrant which, despite appellant’s repeated demand, the State refused to produce and could not produce at the suppression hearing does not alter the result of this case, for we are bound by law to consider only that evidence which the trial court had before it and which was in the record before the trial court when it made its ruling; we are not authorized to receive or consider evidence which the record shows was not before the trial court,, or evidence which by any procedural vehicle has been added to the record. See Consolidated Government &c. v. Williams, 184 Ga. App. 815, 817 (363 SE2d 20); see also Thomas v. RGL Assoc., 200 Ga. App. 283 (407 SE2d 420); Chan v. W-East Trading Corp., 199 Ga. App. 76, 77 (3) (403 SE2d 840).

Judgment reversed.

Beasley and Andrews, JJ., concur.

On Motion for Reconsideration.

The State insists there was no evidence an arrest warrant did not exist; and that during the hearing defense counsel stated he had just been given “the warrant” and that he “never questioned the existence of the arrest warrant again.” This is incorrect. Defense counsel never said he was given an arrest warrant and he never conceded an arrest warrant existed.

The State says Officer Walker’s testimony concerning “this warrant” proves he was looking at an arrest warrant on the witness stand. There is no evidence the officer was looking at an arrest warrant. If he had been looking at an arrest warrant or if there was one in the courtroom, the State would have introduced it, especially at hearing’s end when defense counsel asked the court to confirm that no arrest was before it and the court so confirmed. The existence of an arrest warrant was repeatedly questioned and its production demanded; the only rational reason the State would not have introduced an arrest warrant at that point is that there was none.

Decided October 28, 1992 —

Reconsideration denied December 1, 1992.

Alden W. Snead, J. M. Raffauf, for appellant.

David McDade, District Attorney, J. David Fowler, Assistant District Attorney, for appellee.

Since the State never introduced an arrest warrant, defense counsel’s questioning as to “this warrant” could only have been an abstract reference to “this alleged warrant.” In answer to counsel’s question, the officer testified he had last seen a copy of “this warrant” 20-30 minutes ago; a point prior to the hearing at which the witness saw “this warrant” would have no relevance whatever unless defense counsel was thereby attempting to locate “this warrant.”

The telling fact is that the State disdained to introduce an arrest warrant despite emphatic assertions by counsel that, to his knowledge, an arrest warrant never existed and despite repeated demands that the State produce “this warrant.” An arrest warrant was never a part of the record in this prosecution. The State implies the burden lay upon the defense to prove the arrest warrant did not exist, but the State had the burden to prove legality of the arrest. By saying there was in existence an arrest warrant which the State disdained to introduce, the State asserts it had no burden to prove legality of the arrest and claims that, although it had an arrest warrant in the courtroom, it had no intention or obligation to introduce it either to sustain its legal burdens, or to satisfy the defense, the trial court, and this court that an arrest warrant did exist. It is also virtually an assertion that the State need never prove an arrest warrant existed, which virtually asserts that the police did not need an arrest warrant.

Motion for reconsideration denied.


source: Caselaw Access Project

author:
Carley, Presiding Judge.
      Pope, Judge,

license: Public Domain

text:
    A92A1558.
    KNIGHT v. THE STATE.
    (426 SE2d 1)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of child molestation. He appeals from the judgment of conviction and sentence entered on the jury’s verdict of guilt, enumerating as error only the trial court’s refusal to allow certain expert testimony at trial.

On appeal, appellant contends that the expert would have testified that, in his opinion, appellant was not a pedophile. However, the profFer demonstrates that the expert did not hold such an unequivocal opinion. In the expert’s own words, “the validity of [appellant’s psychological testing results] is exceedingly low,” and the “negative findings should be interpreted quite cautiously, because [appellant] still could have been involved in child molestation but [the] absence of positive testing results failed to demonstrate same.” This is not an opinion that appellant is not a pedophile, but a mere statement that psychological testing had failed to prove that he was.

Moreover, even if the proffer had demonstrated that the expert was of the unequivocal opinion that appellant was not a pedophile, such opinion would still not be admissible. There is no authority for the admission of an expert opinion that the defendant who is on trial for sex crimes against a child is or is not a pedophile. The question of the admissibility of such an opinion was not raised and resolved in Butler v. State, 173 Ga. App. 168 (325 SE2d 835) (1984) or Cooper v. State, 178 Ga. App. 709 (345 SE2d 606) (1986). In Harwood v. State, 195 Ga. App. 465, 466 (1) (394 SE2d 109) (1990), it was undisputed that the defendant had been a pedophile and the expert testimony at issue in that case related solely to the issue of “self rehabilitation.” In Exley v. State, 198 Ga. App. 748-749 (1) (402 SE2d 798) (1991), the expert merely defined the term “pedophile,” “and there was no discussion of appellant’s personal history or traits in connection with the definition of the term.”

In Jennette v. State, 197 Ga. App. 580, 582 (3) (398 SE2d 734) (1990), however, the issue which was raised and resolved was the admissibility of the testimony of an expert “that, after evaluating a battery of psychological profile tests given to appellant, appellant does not fit the profile of a child or adolescent sex abuser.” This court clearly and unequivocally held: “The profile testimony sought to be introduced by appellant goes to the credibility and believability of appellant’s own testimony that he did not commit the acts charged and further speaks to the ultimate fact of whether appellant committed those acts. From the extensive testimony and cross-examination of the various witnesses at trial, the jury, without the help of expert opinion, could have determined the credibility and truthfulness of all the witnesses and could have formed independent opinions as to the victim[’s] truthfulness and the appellant’s capability of performing the acts he was accused of. These determinations did not involve ‘unique and mysterious areas of human response’ necessitating expert testimony.” Jennette v. State, supra at 582-583 (3). Here, as in Jennette, “profile testimony” that, in the opinion of an expert, appellant was or was not a pedophile would not constitute admissible expert testimony.

Judgment affirmed.

Johnson, J., concurs. Pope, J., concurs specially.

Pope, Judge,

concurring specially.

I agree the trial court did not commit harmful error by refusing to allow the expert testimony sought to be introduced by defendant. The record reveals the expert who examined the defendant would only be able to state that the psychological testing of defendant did not prove he was a pedophile; and the expert would not be able to state that it was unlikely defendant was a pedophile or that he did not commit the crime charged. I write separately because I do not agree with the reasons set forth in Jennette v. State, 197 Ga. App. 580 (3) (398 SE2d 734) (1990), and relied upon by the majority in this case, for excluding psychological profile evidence in criminal cases involving sexual deviations.

In Jennette, the defendant was indicted on five counts of sexual assault and five counts of simple battery. Id. at 580. At trial, the defendant sought to introduce expert opinion testimony on two subjects. He sought to introduce testimony on the “lying child syndrome,” that is, “the propensity of a child to relate and to repeat untruthful statements about a person who is an authority figure in their life in order to manipulate that child’s environment.” Id. at 581. He also sought to present the testimony of an expert who would state that it was his opinion after evaluating a battery of psychological profile tests administered to defendant that defendant did not “fit the profile of a child or adolescent sex abuser.” Id. at 582. In Jennette, we analyzed both types of opinions together and held both opinions went to the credibility of certain witnesses, the subject matter of the opinions did not involve “ ‘unique and mysterious areas of human response[,]’ ” and concluded the defendant could not offer the expert testimony. Id. at 583.

Regardless of whether this was the proper analysis for the “lying child syndrome” testimony offered by defendant, because I believe evidence concerning sexual deviations and/or sexual mental disorders involves a unique and mysterious area of human response and behavior, I do not agree with the analysis as it applies to evidence of defendant’s psychological profile. Personality traits, including whether a person has a tendency for sexual deviations, are not observable, and the average juror does not have the training and experience to recognize the symptoms and characteristics of such deviations and/or mental disorders. When expert testimony about a subject beyond the ken of the average juror “indirectly, though necessarily,” involves a witness’ credibility, it does not render the testimony inadmissible. State v. Butler, 256 Ga. 448, 450 (2) (349 SE2d 684) (1986) (allowing a pediatrician to testify that she had concluded the child victim had been molested). For these reasons, I do not agree with the analysis of this issue in Jennette and the majority opinion.

Because I consider the evidence in question beyond the ken of the average juror, and therefore a proper subject matter for expert testimony, I believe such testimony should be subjected to the same test as other scientific techniques and procedures. That is, expert opinion evidence concerning defendant’s psychological profile as it relates to his propensity to commit the crime should be admitted when “the procedure or technique [used by the expert to determine defendant’s personality traits relating to sexual deviance] has reached a scientific stage of verifiable certainty. . . .” Harper v. State, 249 Ga. 519, 525 (292 SE2d 389) (1982) (affirming the trial court’s refusal to admit the results of truth serum tests on the ground that it has not been demonstrated with verifiable certainty that such tests are an accurate and reliable means of ascertaining whether a person is telling the truth). See also Allison v. State, 256 Ga. 851 (2) (353 SE2d 805) (1987) (holding the "trial court did not err in determining that evidence of the child sexual abuse syndrome was competent evidence); Smith v. State, 247 Ga. 612 (277 SE2d 678) (1981) (holding the trial court erred by not allowing the defendant’s expert to describe the phenomenon of “wife battering” and give an opinion about whether defendant’s personality and behavior corresponded to that of other battered women the expert had studied); cf. Sanders v. State, 251 Ga. 70 (303 SE2d 13) (1983) (refusing to allow the State to introduce evidence concerning the “battering parent syndrome” unless the defendant placed her character in issue or raised some defense to which the syndrome was relevant).

It should also be noted that the apparently accepted practice before our decision in Jennette was that evidence of a defendant’s psychological traits was admitted on the issue of the defendant’s propensity to commit the crime. For example, in Cooper v. State, 178 Ga. App. 709 (345 SE2d 606) (1986) the defendant was allowed to present without objection “the testimony of an expert in psychology who testified that certain test results were wholly incompatible with a pedophile personality and that because of physical injuries and psychological traits it was most unlikely that [defendant] could experience a penile erection.” Id. at 709 (1). In Butler v. State, 173 Ga. App. 168 (325 SE2d 835) (1984), without objection defendant was allowed to present the testimony of expert witnesses on homosexual and heterosexual pedophiles who “stated that, given defendant’s normal sexual activities with his girl friend as related by him, and on the basis of statistical probability projections, these habits would be inconsistent with child molestation and that rarely would the two types of sexual behavior coexist.” Id. at 170. In Harwood v. State, 195 Ga. App. 465 (394 SE2d 109) (1990), we held the trial court did not commit reversible error by allowing the State to present the testimony of an expert concerning the probability of pedophiles or persons who engage in incestuous behavior being able to self rehabilitate. Id. at 466 (1). We recently held in Exley v. State, 198 Ga. App. 748 (402 SE2d 798) (1991), that expert testimony by a psychiatrist describing the characteristics of a pedophile did not impermissibly place the defendant’s character in issue. Id. at 748 (1). A review of these cases also illustrates why evidence concerning the propensity or lack thereof for sexual deviant behavior involves an area of “unique and mysterious” human response appropriate for expert opinion testimony.

Decided September 24, 1992 —

Reconsideration denied December 1, 1992

John D. J. Bloodworth, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, ■ Brenda J. Bernstein, Assistant District Attorneys, for appellee.

       In reaching my opinion concerning when such testimony should be allowed, I was guided by prior appellate decisions of Georgia courts on similar issues and cases from other jurisdictions which have had occasion to address this issue. See generally Gregory G. Sarnoy, Annotation, Admissibility of Expert Testimony as to Criminal Defendant’s Propensity toward Sexual Deviation, 42 ALR4th 937 (1985), and the cases cited therein.


author: Andrews, Judge.

text:
    A92A1610.
    WILLIAMS v. THE STATE.
    (426 SE2d 32)
   Andrews, Judge.

Williams was charged and tried for the simple battery of Paula Smith between March 1 and 31, 1990; for the simple battery of Paula Smith between May 1 and 31, 1991; and for the offense of making harassing phone calls to her on or about February 20, 1992. The jury acquitted him of both simple battery charges and convicted him of making harassing phone calls and he appeals.

1. In his first enumeration of error, Williams contends that the trial court erred in denying his motion to sever because the offenses in the three separate accusations did not arise from the same conduct and were unrelated. “In Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975), the Supreme Court adopted ABA Standards of severance which provide that a defendant is entitled to severance if offenses are joined simply because they are similar in nature. However, only when the offenses have been joined solely because they are of the same or similar character shall the accused have a right to severance of the offenses. Offenses are not joined solely because they are of the same or similar character where the similarity reaches the level of a pattern evincing a common motive, plan, scheme or bent of mind. Where the modus operandi of the perpetrator is so strikingly alike, that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined — subject to the right of the defendant to a severance in the interests of justice. Severance in this particular kind of circumstance lies within the sound discretion of the trial judge.” (Citations and punctuation omitted.) Hammock v. State, 201 Ga. App. 614, 617-618 (5) (411 SE2d 743) (1991).

Although there is no trial transcript here, it is apparent that the joined offenses against Paula Smith were part of a common scheme or plan by her former boyfriend, Williams. Moreover, the fact that Williams was acquitted of two of the charges indicates that the jury was not prejudiced by the joint trial. See Barber v. State, 176 Ga. App. 103, 104 (2) (335 SE2d 594) (1985). We find no abuse of the trial court’s discretion and this enumeration is without merit.

2. Secondly, Williams (argues that the trial court erred in denying his special demurrer because the accusation for making harassing phone calls was not properly supported by an affidavit. This enumeration is without merit.

OCGA § 17-7-71 (a) provides: “In all misdemeanor cases in superior, state, or county courts, the defendant may be tried upon an accusation framed and signed by the prosecuting attorney of the court. The accusation need not be supported by an affidavit except in those cases where the defendant has not been previously arrested in conjunction with the transaction charged in the accusation and where the accusation is to be used as the basis for the issuance of a warrant for the arrest of the defendant.” Williams does not contend that the accusation was used as the basis for the issuance of a warrant for his arrest — in fact he contends that at the time of the trial he had not been arrested for the charge. Thus, under the express language of OCGA § 17-7-71 (a), no affidavit was required. See State v. Horne, 181 Ga. App. 207 (351 SE2d 730) (1986).

3. Finally, Williams claims that the trial court erred in denying his special demurrer because the accusation did not set out the alleged offense with sufficient specificity. We find this enumeration also without merit.

OCGA § 17-7-71 (c) states: “Every accusation which states the offense in the terms and language of the law or so plainly that the nature of the offense charged may be easily understood by the jury shall be deemed sufficiently technical and correct.” Because Williams was acquitted of the simple battery charges, we focus here on the accusation against him for making harassing phone calls. That accusation sets forth the offense with sufficient specificity and this enumeration is without merit. See generally State v. Howell, 194 Ga. App. 594 (391 SE2d 415) (1990).

Decided November 18, 1992 —

Reconsideration denied December 1, 1992

Sonja L. Salo, for appellant.

Keith C. Martin, Solicitor, Jackie N. Stanton, Assistant Solicitor, for appellee.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    A92A0854.
    SOUTHERN DEVELOPMENT COMPANY v. SHEPCO PAVING, INC.
    (426 SE2d 234)
   Beasley, Judge.

The state court granted summary judgment to ShepCo Paving, Inc., both on its claim and on defendant Southern Development Company’s counterclaim, and Southern appeals.

Appellee ShepCo, a paving contractor, filed suit against defendant Tom V. Woodall and appellant Southern seeking judgment against Southern on a promissory note and judgment against Woodall, Southern’s president and one of two stockholders, on his personal guaranty thereof. Southern denied liability and pleaded the defenses of failure of consideration, mistake, and breach of the paving contract or overbilling by ShepCo. Southern also filed a counterclaim alleging the wrongful filing of a claim of lien by ShepCo.

1. In a summary judgment proceeding, hearsay evidence has no probative value unless part of the res gestae. Southern Bus. Machines v. Norwest Fin. &c., 194 Ga. App. 253, 256 (2) (390 SE2d 402) (1990). A second principle applicable here is that “ ‘[a]ppellate courts will review only evidence presented to the trial court before its ruling on the motion. Additional evidence will not be admitted on appeal.’ [Cit.]” Nowell v. Fain, 174 Ga. App. 592, 593 (330 SE2d 741) (1985). Thirdly, factual assertions in briefs not supported by evidence of record are not generally considered on appellate review. Behar v. Aero Med Intl., 185 Ga. App. 845, 847 (366 SE2d 223) (1988).

2. ShepCo was not a holder in due course within the meaning of OCGA § 11-3-302; however, appellant does not state where in the record the trial court made a finding that appellee was such a holder. We will not cull the record on behalf of a party in search of error. Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (8) (389 SE2d 251) (1989); accord Benefield v. Benefield, 224 Ga. 208, 209 (5) (160 SE2d 895) (1968).

3. Southern asserts that the trial court erred in not finding inapplicable ShepCo’s contention that the promissory note extinguished all defenses to the alleged indebtedness. Ameagle Contractors v. Virginia Supply &c. Co., 144 Ga. App. 477 (1) (241 SE2d 594) (1978), held that “[t]he execution of a note in payment of an account operates to cut off all defenses to the account of which the maker then had knowledge.” The court concluded that “[u]nder these circumstances [where the maker knew or should have known of the defenses], the trial court correctly determined that the defenses of failure of consideration and mistake of fact were not available.” Id. Accord Berry v. Atlas Metals, 152 Ga. App. 437, 439 (2) (263 SE2d 179) (1979) (defenses cut off where appellant knew or should have known operative facts upon which note was based); compare Jernigan Auto Parts v. Commercial State Bank, 186 Ga. App. 267, 271 (3) (367 SE2d 250) (1988) (knowledge of all the facts upon which defense of fraud and duress based); Munna v. Lewis, 181 Ga. App. 860, 862 (354 SE2d 181) (1987); but compare McNair v. Gold Kist, 166 Ga. App. 782, 784 (2) (305 SE2d 478) (1983) (usury defense).

ShepCo asserts Southern is chargeable with the knowledge of its officer and agent Woodall, and that the alleged overcharges and the amount of material actually furnished on the job sites could have been ascertained by due diligence on the part of the company and its agents. The company contends it is not chargeable with the knowledge of Woodall, due to the alleged misrepresentations made by Woodall regarding the amounts due and owing ShepCo and his breach of the fiduciary relationship by failing to act in good faith to protect the interests of the company from the fraudulent claims of Woodall’s friend and neighbor, Steve Copeland, the president of ShepCo.

“ ‘The law imputes to the principal, and charges him with, all notice or knowledge relating to the subject-matter of the agency which the agent acquires or obtains while acting as such agent and within the scope of his authority, or which he may previously have acquired, and which he then had in mind, or which he had acquired so recently as to reasonably warrant the assumption that he still retained it; provided, however, that such notice or knowledge will not be imputed: 1. Where it is such as it is the agent’s duty not to disclose, and 2. Where the agent’s relations to the subject-matter, or his previous conduct, render it uncertain that he will not disclose it, and 3. Where the person claiming the benefit of the notice or those whom he represents, colluded with the agent to cheat or defraud the principal.’ ” Fowler v. Latham, 201 Ga. 68, 74 (3) (38 SE2d 732) (1946), quoting Bean v. Barron, 176 Ga. 285 (2) (168 SE 259) (1933).

Applying the rules set forth heretofore to the record, we find there exists no competent evidence establishing, or from which it can reasonably be inferred, that Woodall was in collusion with ShepCo or its president, Copeland, or that Woodall engaged in any conduct rendering it uncertain that he would act in good faith in reporting accurately the information in question to the company. Moreover, the experts’ bare conclusions that “such significant overcharging could not be accomplished without the collusion or collaboration of [Woodall]” and “it is apparent to me that ShepCo’s bills went unchallenged by [Woodall]” would not be admissible, as whether Woodall did or did not collude with ShepCo or challenge ShepCo’s bills would not be a matter beyond the ken of the average juror. Compare Palmer v. State, 186 Ga. App. 892, 899 (4) (369 SE2d 38) (1988). Where an affidavit contains conclusions which would not be admissible in evidence, the conclusions are to be disregarded when ruling on a motion for summary judgment. Love v. Love, 259 Ga. 423, 424 (1) (383 SE2d 329) (1989).

Accordingly, there is operative in this case no exception to the general rule that Southern should be charged with the knowledge of agent Woodall. The record supports summary judgment, for it shows that the company knew or should have known, when it signed and delivered the note, the facts now asserted in its defenses.

Woodall was president, chief operating officer, both negotiator and supervisor of the paving contract, and one of the two stockholders of the company. Newton, Southern’s counsel, was the other stockholder and also its secretary and arranger of finances for the project. Woodall signed the note for the company, and Newton attested it.

In particular, as the company says in its second supplemental brief, “Tom Woodall’s responsibilities as [the company’s] Chief Executive Officer were to undertake and complete the development of the property. Tom Woodall was the corporation’s representative charged with the responsibilities of seeing that the engineering was complete and that all work for the development of the property was performed timely. This responsibility included reviewing all invoices to Southern Development Company, and ensuring that the invoices were correct and were only for work agreed to by Contract.” That being so, what Woodall knew or should have known, and what he did or did not do, is thus attributable to the company. One cannot separate what he knew as a person from what the company knew, as the latter could only “know” through the mind of the former.

The company’s expert witnesses, an engineer and a certified public accountant, testified that a review of all the documents connected with the contract related to the paving job show overcharges and consequently overpayments. But all of these records were in the custody and control of the president/ceo/job supervisor Woodall, so the company cannot say it did not know or could not have known the same thing, if in fact what the two experts say is accurate. To say that one could not ascertain the facts by viewing the worksite is beside the point, for the testimony of the experts is not based on viewing the worksite. Of course, Woodall had this added advantage, as he supervised the performance of the contract. And even if there were charges without written change orders, Woodall knew it because he approved the charges, authorized payments, and obtained lien releases with each one as the work progressed. In other words, as in Munna v. Lewis, supra at 862, “the time to have undertaken such an examination of the [charges and] expenditures . . . was before signing the note.” If there were mistakes of fact, their non-discovery was the result of Woodall’s negligence, which is not a defense to the note. Ameagle Contractors, supra at 478 (1).

Moreover, the debt was originally about $17,000, as was confirmed by Woodall at the time. Half was paid by check and half by the note, which ShepCo accepted after Woodall finally added a personal guaranty, months after the debt was due and both Woodall and attorney Newton, the two operatives in the company, had opportunity to review the records and challenge the debt. The company does not contend that the amount paid by check was in error. The evidence conclusively establishes that the note was given on the antecedent debt, and no further consideration was necessary. Berry, supra at 439 (2). OCGA § 11-3-408. ShepCo was entitled to summary judgment on the note which Southern gave to it.

4. This is true also of Southern’s counterclaim for damages sought in connection with ShepCo’s lien, which Southern alleged was invalid. The delivery of the note with the guaranty, months after the lien was placed due to nonpayment of the debt when it was overdue, so as to gain an extension of time for payment of the debt and to have the lien released, estopped Southern from challenging the lien. See Crockett v. Shafer, 166 Ga. App. 453, 454 (3) (304 SE2d 405) (1983).

Moreover, it is undisputed that the earlier lien waivers related to the progress payments then made, not the unpaid July 1988 invoice, so that the waiver did not render the November lien invalid. It is also undisputed that the lien included work done within the time allowed for the lien to be timely. It states that the claim, which brought the debt amount up to date, became due September 28. The lien was filed November 7. See OCGA § 44-14-361.1 (a) (2). The release of the lien having been part of the consideration for the guaranteed note, which note Southern is estopped from asserting pre-note defenses against, precludes Southern from challenging the lien concerning which it had full knowledge at the time it delivered the guaranteed note. See Jernigan Auto Parts, supra at 271, 273.

There is no basis in the record which would estop the lienor ShepCo from “invalidating] the lien waivers.” It is not seeking to do so; the lien waivers simply did not apply to the unpaid debt which underlay the note, the subject of this suit. “Labor, materials or services ... in the future” plainly related to the work described in the invoice, such as “8561 sq. yds. 5” stone Inv. #1231.” Furthermore, it would be invalid if it related to future work, i.e., the work which was invoiced and paid by the note. The waiver “would only be effective to waive lien rights up to the amount billed at the time the waiver was executed, . . .” Schwan’s Sales Enterprises v. Martin Mechanical Contractors, 202 Ga. App. 510, 511 (2) (414 SE2d 727) (1992).

Decided December 1, 1992.

Troutman, Sanders, Lockerman & Ashmore, Richard A. Newton, Zachary & Segraves, William E. Zachary, Jr., for appellant.

Nardone & Read, Charles D. Read, Jr., Rawlins & Mobley, David D. Rawlins, for appellee.

Finally, there is no question that the company knew the facts which it now says rendered the lien invalid, which alleged invalidity is the basis for its counterclaim. The lien claim itself states when the amount claimed became due, and Woodall if not Newton knew what work was being done on the project, what the contract required, and what had been invoiced and paid. It also had the prior waivers which Woodall obtained from ShepCo each time a progress payment was made. Plus, it took affirmative action to have the lien released, not by challenging it in court but by securing ShepCo’s promise to release it if the company delivered a guaranteed note in March to cover the unpaid previous June’s invoice. ShepCo fulfilled that promise. It is too late to assert that the lien was invalid and caused recoverable damages to Southern. .

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


author: Beasley, Judge. Andrews, Judge,

text:
    A92A1475.
    GREEN v. THE STATE.
    (426 SE2d 65)
   Beasley, Judge.

Green was indicted on five counts of child molestation. OCGA § 16-6-4 (a). He was convicted of three counts of the lesser offense of sexual battery, OCGA § 16-6-22.1, and was acquitted of two counts. This appeal follows the denial of his amended motion for new trial.

Appellant is the uncle of three girls, who at the time of trial were nine, eleven and twelve years old. In December 1990, after viewing a film at school concerning child molestation, the 11-year-old asked to speak with the school counselor to whom she reported that her uncle (appellant) had improperly touched her on the breasts and legs. She also stated that appellant had acted in the same manner with her nine-year-old sister. The counselor spoke with the nine-year-old who reported that about a year earlier, appellant had “touched her on the top and on the legs.” The counselor so informed the children’s mother who requested that the counselor also speak with her 12-year-old daughter. That child too reported that appellant had touched her on the breasts and legs. All three children reported that the incidents had occurred at appellant’s home. The three children each related the same incidents to their mother. Although the 12-year-old was initially reluctant to talk about the events, she ultimately disclosed that appellant had put his mouth on her breasts and made her touch his “private parts.” These events occurred at his home and at a processing plant where he did janitorial work. The police were notified.

At the request of the investigating officer, a caseworker with the Dade County Department of Family & Children Services conducted videotaped interviews with each of the three children. Their accounts of the incidents were materially consistent with the information previously given to the counselor and to their mother. Each reported that the incidents took place during a period of time when the children and their mother were living with appellant and his wife, although that time frame was unspecified by the evidence. In addition, the oldest child reported that appellant had threatened to hurt her and her sisters if she reported the misconduct. The children were shown anatomical drawings and asked to mark the areas where they had been touched. Their markings were consistent with their verbal descriptions. The 12-year-old testified that the events occurred about a year prior to the trial date of November 1991. The 11-year-old placed the incident at Christmas time and stated that she reported it to the counselor after viewing the film at school. The counselor confirmed that she received the report in December 1990. Venue was properly established in Dade County.

1. Appellant contends that the trial court erred in denying his motion for a directed verdict of acquittal.

The three offenses for which he was convicted were indicted on October 15, 1991, as follows: Count 1 charged that on or about October 31, 1990, appellant fondled the breasts of the 12-year-old child. Count 5 charged that on or about the same date, he placed his lips on the breasts of that child. Count 2 charged that on or about December 7, 1990, he fondled the breasts of the 11-year-old.

“ ‘In proving the time of the commission of an offense the State is not, as a general rule, restricted to proof of the date alleged in the indictment, but is permitted to prove its commission on any date within the statute of limitations.’ [Cits.] Where, however, the indictment specifically alleges the date of the offense is material, the accused may be convicted only if the State’s proof corresponds to the date alleged. [Cit.]” Ledesma v. State, 251 Ga. 885 (1) (a) (311 SE2d 427) (1984). As in Ledesma, “[t]he indictment in this case did not allege the dates of the offense were material.” Id. at 886. See also Burnett v. State, 202 Ga. App. 563, 564 (2) (415 SE2d 43) (1992); Keri v. State, 179 Ga. App. 664, 668 (3) (347 SE2d 236) (1986).

The proof was sufficient to survive a motion for directed verdict and to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the offenses for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. After an hour of deliberations, the jury returned with a question. The foreman stated: “The question was on sexual battery being a lesser charge, was it a felony, sexual battery considered a felony, that’s what some of them wanted to know?” Recognizing that the jury could not consider punishment in reaching its verdict, the court properly responded, “that’s a matter that does not concern the jury.”

Deliberations resumed for an additional three hours at which time the jury asked to be*excused for the night. One hour into the morning deliberations, the foreman informed the court that although they had agreed on one count, the jury was deadlocked ten to two on the remaining four counts. Without any apparent consultation with counsel, the court gave additional instructions as follows: “[L]adies and gentlemen of the jury, you asked a question yesterday about . . . what is sexual battery. ... a felony or a misdemeanor? . . .You are not to concern yourselves with anything concerning punishment. But to answer that question, and for that purpose only, sexual battery is a misdemeanor ... it is not a felony. Now, having said that, let me give you some more instructions.” What followed was an Allen-type charge culminating with a request “to make every possible effort to reach a verdict.”

The verdict was received approximately one hour later, finding defendant guilty of the lesser-included misdemeanor on three counts and not guilty on the other two counts. Before it made inquiry, it had been deadlocked on four of the five counts. (We note that the verdict as published by the clerk of court was stated incorrectly. It announced appellant’s guilt as charged on Counts 1, 2 and 5 of the felony indictment. A subsequent poll was conducted during which each juror individually affirmed the erroneous verdict. The trial court perceived the error just as the jury was about to be disbursed. The foreman confirmed that the three convictions were for the lesser offense of sexual battery.)

The trial court erred in instructing the jury of the misdemeanor rating of sexual battery. Johnson v. State, 261 Ga. 236, 239 (5) (404 SE2d 108) (1991); Cater v. State, 176 Ga. App. 388 (336 SE2d 314) (1985). Although in both Cater and Johnson, the error was deemed harmless because it was highly probable that it did not contribute to the judgment, we are unable to reach the same conclusion here.

The jury here obviously found insufficient proof of the elements of child molestation, and after five hours of deliberation, it was deadlocked on the lesser offense. Unlike in Cater and Johnson, the jury initiated the request for information concerning whether both offenses under consideration were equal in terms of their felony classification. The trial court understood the impermissible basis for the question, initially refusing to answer it. On the following day, it nevertheless supplied the jury with the requested information. Although it qualified the reinstruction with the caveat that they were not to be concerned with “punishment,” that language itself confirmed the connection between felony and misdemeanor ratings as affecting punishment. To conclude that the jury thereafter disregarded any consideration of punishment, when it was involved in the very question which prevented their arriving at a verdict, ignores reality. Supplying them with the requested information, followed by an extensive Allen-type instruction, introduced an impermissible factor into the deliberations.

The only plausible motivation for their inquiry under these circumstances was to discern the differences in the severity of punishment. Why else would they be intent on knowing the classification of sexual battery, the offenses which they thereafter chose to find appellant guilty of rather than the felony offense charged, if not to ascertain whether it carried greater punishment? Although intending the opposite result, the court expressly made them aware of the meaning of the classification by connecting it to consideration of punishment. We are constrained to conclude that the jury’s verdict of guilty was impermissibly affected by a consideration of punishment, Cater at 389, in this case. The jury was choosing between and among verdicts of guilty of the molestation, guilty of sexual battery, and not guilty. They did so only after they learned that sexual battery was punishable as a misdemeanor rather than as a felony.

Thus, we cannot say “that it is ‘highly probable that the [erroneous instruction] did not contribute to the judgment.’ [Cit.]” Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

The outcome in this case differs from Johnson, supra, 261 Ga. 236, where the trial court’s designation of one form of involuntary manslaughter as “felony” and the other as “misdemeanor” was deemed harmless because the defendant was convicted of felony murder. That case is also distinguishable because the trial court did not mention punishment.

Cater, supra, is different from the instant case factually for the same reason. In addition, in Cater there was no inquiry concerning the distinction and it was obvious by legislative designation that “simple battery” was a less serious offense than “aggravated battery.”

In Fletcher v. State, 197 Ga. App. 112, 113 (3) (397 SE2d 605) (1990), which preceded Johnson, supra, 261 Ga. 236, the distinction between reckless conduct as a misdemeanor and aggravated assault as a felony was contained in the initial instruction as a repetition of what the state’s attorney had said without objection. It was given no further emphasis by the court, the jury made no inquiry about it, and it was not connected to punishment.

3. We do not reach appellant’s remaining enumerations of error as they are unlikely to recur on retrial.

Judgment reversed.

Sognier, C. J., Corley, P. J., Cooper and Johnson, JJ., concur. McMurray, P. J., Birdsong, P. J., Pope and Andrews, JJ., dissent.

Andrews, Judge,

dissenting.

I must respectfully dissent inasmuch as I believe Cater v. State, 176 Ga. App. 388 (336 SE2d 314) (1985), and Fletcher v. State, 197 Ga. App. 112 (397 SE2d 605) (1990), are controlling and require that the conviction be affirmed.

As we held in Cater, supra at 388-389: “It appears that the court’s objected-to statement neither defined nor elaborated upon the term ‘misdemeanor.’ Nor did the court indicate that the charged offense was a ‘felony’ or carried the potential for more serious punishment. To surmise that the jury knew the significance of classification of offenses for the purpose of punishment and further that such knowledge influenced their verdict is merely speculative. . . . Furthermore, [sexual battery] was being charged here as a ‘lesser included’ offense of [child molestation], and the jury was so informed without objection. Thus, the relative severity of punishment was already clearly implied, as a matter of common sense. To reverse because the judge labeled one crime a ‘misdemeanor’ when the jury knew it was a ‘lesser offense’ . . . would be to ignore the obvious.”

Moreover, in Fletcher v. State, supra, where the defendant was convicted of the offense of aggravated assault, we rejected a defense claim that the following charge instructed the jury on sentencing matters and required reversal: “ ‘Now, ladies and gentlemen, you will also be considering or will be authorized to consider what is termed a lesser included offense, that of reckless conduct, and I will get into the definition of that in just a second. But with regards to the offense of reckless conduct, as (the State’s attorney) has stated, this is a misdemeanor. It is different from an aggravated assault. Aggravated assault is a felony.’ ” (Emphasis in original.) Id. at 113. While recognizing that it is error to instruct the jury as to sentencing matters, we found “nothing in the emphasized language of the above charge which pertains to possible sentences for the crime charged.” Id. at 113. Similarly, the charge given in the present case did not instruct the jury as to sentences, and it is speculative to assume it influenced the jury to consider sentencing matters in reaching the verdict.

The majority speculates that the charge in the present case caused the jury’s verdict to be influenced by sentencing matters primarily because the jury asked about the classification and they were able to reach a verdict shortly after the court’s response. I believe Cater and Fletcher, supra, require that we hold otherwise. See also Johnson v. State, 261 Ga. 236, 240, n. 5 (404 SE2d 108) (1991).

Decided December 1, 1992.

Franklin & Franklin, James D. Franklin, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Mary Jane R. Palumbo, Assistant District Attorney, for appellee.

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


text:
    A92A1655.
    JEFFERSON v. THE STATE.
    (425 SE2d 915)
   Andrews, Judge.

Jefferson appeals from a jury verdict finding him guilty of two counts of rape, two counts of burglary, and one count of aggravated assault. The charges stemmed from two separate incidents. In the first incident, occurring on December 29, 1989, Jefferson was charged with unlawfully entering the first victim’s residence and assaulting and raping her. In the second incident, occurring on August 2, 1990, Jefferson was charged with unlawfully entering another residence and raping the occupant.

In the 1989 incident, the State introduced eyewitness testimony from the victim and a witness identifying Jefferson as the assailant, who entered the residence, and raped and assaulted the victim with a crowbar-like weapon. In the 1990 incident, the State relied primarily on the victim’s voice identification of Jefferson as the assailant, who entered her residence and raped her. Other evidence in the 1990 incident showed that hair found at the crime scene was consistent with pubic hair collected from Jefferson; that a shoe print found outside the victim’s residence was consistent with shoes Jefferson was wearing when arrested the day of the rape, and that Jefferson was in the vicinity of the victim’s residence near the time of the rape in a field where his truck was stuck in a ditch. As similar transaction evidence, the State also introduced testimony that Jefferson raped a woman in an adjoining county on December 21, 1989.

1. Jefferson contends the trial court erred by refusing to grant him a new trial based on newly discovered evidence that he was not on leave from military service on December 20, 1988. Prior to trial, the State sought approval to show as similar transaction evidence that, while Jefferson was on leave from military service in December 1988, he committed a similar rape. However, the State did not introduce any evidence at trial relating to the December 1988 rape. “To obtain a new trial because of newly discovered evidence, a movant must satisfy the court (1) that the evidence has come to his 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 is attached to the motion or its absence accounted for; and (6) that the new evidence does not operate solely to impeach the credibility of a witness. All six requirements must be satisfied before a new trial will be granted. Humphrey v. State, 252 Ga. 525, 528 (314 SE2d 436) (1984); Young v. State, 194 Ga. App. 335 (1) (390 SE2d 305) (1990).” (Punctuation omitted.) Eliopulos v. State, 203 Ga. App. 262, 263 (416 SE2d 745) (1992); OCGA § 5-5-23. The affidavits relied upon by appellant do not establish that the alleged new evidence was obtained. Even if such evidence was obtained, we fail to see its relevance given that the December 1988 incident was not in evidence. The trial court did not abuse its discretion by denying the motion for a new trial. See Wilson v. State, 193 Ga. App. 374, 375 (387 SE2d 642) (1989).

2. Jefferson next contends the trial court erred by denying his motion in limine to exclude evidence that the 1990 victim identified him by his voice on the day of the rape while he was being questioned by police. He argues that the voice identification was unduly suggestive and produced a substantial likelihood of misidentification.

Although the victim was approached from behind, was blindfolded during the attack, and had no opportunity to observe her assailant, evidence showed the assailant spoke to her numerous times, and she had ample opportunity to hear his voice. She testified the assailant spoke calmly in completely formed sentences with a gruffysounding distinctive voice, which sounded to her to be that of a black man. Jefferson, a black male, was detained for questioning on the day of the rape after an investigation revealed that he was seen near the victim’s residence shortly after the time of the rape, attempting to remove his truck from a ditch. While Jefferson was being questioned in a room at the police station, police seated the victim outside the room in a position where she could hear Jefferson’s voice, but could not see him. The victim testified that she positively identified Jefferson’s voice at the police station as that of her assailant. The officer who staged the voice identification testified that as the victim heard Jefferson’s voice she suddenly moved her hand to her mouth, and began crying.

We first conclude that a proper foundation was laid to show the basis of the victim’s opinion that she recognized her assailant by voice. See Stevanus v. State, 185 Ga. App. 7, 9-10 (363 SE2d 322) (1987); Shepherd v. State, 173 Ga. App. 499, 500-501 (326 SE2d 596) (1985); Jenkins v. State, 167 Ga. App. 840, 841-842 (308 SE2d 14) (1983). Next, we conclude that the voice identification was admissible under the test of Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972). See Stith v. State, 201 Ga. App. 621, 622 (411 SE2d 532) (1991). The voice identification procedure employed by the police was the equivalent of using a one-person show-up for an eyewitness identification. “The test for determining whether a due process violation occurred in cases such as this is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Citation and punctuation omitted.) Martin v. State, 193 Ga. App. 581, 582 (388 SE2d 420) (1989). Under Neil v. Biggers, supra, a two-step analysis is used: “First, an impermissibly suggestive identification procedure is to be avoided. Only if it was suggestive need the court consider the second question — whether there was a substantial likelihood of irreparable misidentification. Although one-on-one show-ups have been sharply criticized, and are inherently suggestive, the identification need not be excluded as long as under all the circumstances the identification was reliable notwithstanding any suggestive procedure. Our inquiry, therefore, must focus upon whether, under the totality of the circumstances, there was a substantial likelihood of irreparable misidentification. The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view [or hear] the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Neil, supra, 409 U. S. at 199-200.” (Citations and punctuation omitted.) Barnett v. State, 191 Ga. App. 552, 555-556 (382 SE2d 620) (1989).

The blindfolded victim was clearly focused on her assailant’s voice, had ample opportunity to hear him speak during the crime, and described his voice in detail. Her identification of his voice was unequivocal and made on the day of the crime. Under all these circumstances, there was no substantial likelihood of irreparable misidentification. Barnett, supra at 556; Killens v. State, 184 Ga. App. 717, 720 (362 SE2d 425) (1987); Martin, supra at 582. The trial court did not err by denying the motion in limine and admitting evidence of the pre-trial voice identification.

3. Jefferson contends the trial court erred by refusing to sever the counts relating to the 1989 incident from the counts relating to the 1990 incident. “Severance is required if offenses are joined solely because they are similar in nature. Cooper v. State, 253 Ga. 736, 737 (325 SE2d 137) (1985); Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975); Wilson v. State, 188 Ga. App. 779, 780 (374 SE2d 325) (1988).” Dobbs v. State, 199 Ga. App. 793 (406 SE2d 252) (1991). Severance is not mandated, however, where the similarity of the offenses is coupled with evidence of a pattern which shows a common motive, plan, scheme, or bent of mind. Wilson v. State, 188 Ga. App. 779, 780 (374 SE2d 325) (1988). “Where the modus operandi of the perpetrator is so strikingly alike, that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined — subject to the right of the defendant to severance in the interests of justice. Severance in this particular kind of circumstance lies within the sound discretion of the trial judge.” (Citations and punctuation omitted.) Id. at 780.

There was a valid reason, other than similarity, for joinder of the offenses relating to the 1989 and 1990 incidents, so severance was discretionary with the trial court. Davis v. State, 159 Ga. App. 356 (283 SE2d 286) (1981). The 1989 and 1990 assaults, about six months apart, both occurred while the defendant was home on leave from military service. The victims were young white females, who lived close to one another in Sycamore, Georgia, and were attacked after an assailant entered their residences in the early morning hours and awoke them from sleep. A weapon was employed against the victim in both cases, and evidence showed that entry in each case was gained through a window. The victims described the assailant’s voice in similar terms, and the defendant was positively identified by both victims as the assailant. The trial court did not abuse its discretion in denying the motion to sever. See Exley v. State, 198 Ga. App. 748, 750 (402 SE2d 798) (1991).

4. Contrary to Jefferson’s contentions, the trial court did not err in admitting evidence that he committed a prior rape. The State introduced testimony that on December 21, 1989, Jefferson raped a woman at her residence located in an adjoining county about 23 miles from the residences of the victims of the present offenses. At the pretrial hearing, in which the trial court ruled that the prior rape was admissible, defense counsel objected on the grounds that the prior rape was not sufficiently similar to the charged crimes. This objection was renewed by the defense at trial prior to introduction of the prior transaction evidence. Compare Hunter v. State, 202 Ga. App. 195, 196-198 (413 SE2d 526) (1991) (failure to object on specific grounds at time similar transaction evidence is offered).

At the hearing held prior to trial, the State made a sufficient showing: (1) that it sought to introduce evidence of the independent crime, not to raise an improper inference as to Jefferson’s character, but for the purpose of showing identity, scheme, course of conduct, motive and bent of mind; (2) that Jefferson committed the independent crime, and (3) that a sufficient similarity existed between the independent crime and the crime charged so that the former tends to prove the latter. Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991); Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991).

The State’s proof at trial included eyewitness testimony that Jefferson committed the prior rape, and evidence of sufficient similarity between the prior rape and the rapes on trial to warrant admission of the independent crime. All the victims were white females, who were attacked in their residences in morning hours ranging from about 2:00 a.m. to 9:00 a.m. A weapon was used in each case, and in each case there was evidence that entry was gained to the residence through a window. In the rapes being tried, the victims were 23 and 13 years of age. The victim was 15 years old in the prior rape. All of the attacks occurred while Jefferson was home on leave from military service. The rapes on trial occurred on December 29, 1989, and August 2, 1990, and the prior rape occurred on December 21,1989. Although the prior rape occurred about 23 miles from the location of the charged crimes, the prior victim lived about two miles off of Georgia Highway 32, and the victims of the charged rapes lived less than a mile from Highway 32. There was no error in admitting evidence of the prior rape. Williams, supra at 642; Johnson v. State, 242 Ga. 649, 652-653 (250 SE2d 394) (1978); Weldon v. State, 202 Ga. App. 51, 52 (413 SE2d 229) (1991); Hargrove v. State, 202 Ga. App. 854, 855-856 (415 SE2d 708) (1992); Henderson v. State, 204 Ga. App. 884 (420 SE2d 813) (1992).

5. Jefferson claims the trial court erred by admitting six photographs of the 1989 victim depicting various wounds she suffered in the attack. He also claims error in the admission of four photographs of blood stains on the victim’s bed resulting from the attack. Appellant objected to the photographs on grounds that they were cumulative, and had no value other than to inflame the passions of the jury.

In the 1989 incident, Jefferson was charged with aggravated assault by beating the victim with a crowbar-like weapon. The victim suffered numerous head wounds, and it appears that multiple photographs were necessary to fully depict the extent of her injuries. “Photographs showing the extent of injuries suffered by the victim of the alleged criminal act are relevant at the trial of the defendant, and are admissible despite allegations that they may inflame and prejudice the jury. Associated Health Systems, Inc. v. Jones, 185 Ga. App. 798, 803 (366 SE2d 147) (1988); Johnson v. State, 184 Ga. App. 745, 746 (362 SE2d 450) (1987).” Stokes v. State, 204 Ga. App. 586 (420 SE2d 84) (1992). There was no error in admitting these photographs. The bloody bedding was similarly relevant to show the extent of the injuries as a result of the assault. Talley v. State, 137 Ga. App. 548, 552 (224 SE2d 455) (1976). Although four photographs of the bed were not necessary to fairly show the scene, we find no cause for reversal in their admission.

6. Jefferson contends the state deliberately discriminated against him on the basis of race by using its peremptory strikes to exclude blacks from the jury. See Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). The individual questioning of the panel of jurors from which the jury was selected was made a part of the record, but no record was transmitted to this court showing how peremptory challenges were exercised by the State or the defense in selecting the jury. Nevertheless, the parties agree that the jury was 50 percent black, and was selected from a panel of jurors that was 25 percent black. Assuming, without deciding, that these numbers alone were not a sufficient reason to conclude that no prima facie case of discrimination was established, the record does not reflect whether the trial court ruled that a prima facie case was established, nor does the record reflect any explanations given by the State for each of its strikes, or any ruling thereon by the trial court. Moreover, the record reflects that the jury was selected sometime prior to the day of trial, and was sworn immediately prior to commencement of the trial. There is nothing in the record indicating that appellant timely raised the Bat-son objection prior to the jury being sworn. State v. Sparks, 257 Ga. 97, 98 (355 SE2d 658) (1987). Accordingly, the appellant has failed to carry his burden to prove a claim under Batson. See Love v. State, 205 Ga. App. 27 (421 SE2d 125) (1992); Brown v. State, 261 Ga. 184, 185 (402 SE2d 725) (1991).

7. The evidence was sufficient for a rational trier of fact to conclude that Jefferson was guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.

Decided December 1, 1992.

Herbert W. Benson, Melinda B. Banks, for appellant.

David E. Perry, District Attorney, A. Douglas Newsome, Assistant District Attorney, for appellee.

       The procedure outlined in Williams and Stephens, supra, is applied retroactively to this case which was tried prior to issuance of those decisions. Ramirez v. State, 205 Ga. App. 217 (422 SE2d 3) (1992). Appellant does not challenge the sufficiency of the trial court’s determination on the record that the State made a proper showing at the pre-trial hearing for admission of similar transaction evidence under Williams, supra. See Lumpkin v. State, 205 Ga. App. 68 (421 SE2d 100) (1992). We note, however, that the evidence presented by the State at the hearing was sufficient for the trial court to conclude that the Williams, supra, prerequisites were satisfied.

       The fact that Jefferson had not been tried or convicted for the prior rape does not bar its use as similar transaction or occurrence evidence. Howard v. State, 204 Ga. App. 882 (420 SE2d 811) (1992).

       In Weems v. State, 262 Ga. 101 (416 SE2d 84) (1992), the Court discussed the dangers inherent in relying exclusively upon statistical data in determining the prima facie requirement.

       The briefs of the parties, though reflecting that some explanations were given to the trial court at some point, are inadequate to establish a sufficient record.


author: McMurray, Presiding Judge.

text:
    A92A2224.
    BELL v. LEATHERWOOD et al.
    (425 SE2d 679)
   McMurray, Presiding Judge.

This case arose when a ten-speed bicycle, ridden by Zachary Leatherwood, a seven-year-old child, hit an automobile driven by Elbert Bell. The trial court denied Bell’s motion for summary judgment, and we granted his application for interlocutory review.

Viewing the evidence most strongly against Bell, the moving party, and giving Zachary Leatherwood, the party opposing the motion, the benefit of all inferences that may fairly and reasonably be drawn from the record, as we are bound to do, Vizzini v. Blonder, 165 Ga. App. 840 (303 SE2d 38), we find the following: On September 13, 1989, at approximately 4:15 p.m., Zachary Leatherwood and his twin brother, Sidney, and sister, Whitney, were playing in the driveway of a friend’s house. The friend, Philip Newman, was playing Four Square with Whitney while Zachary and Sidney admired Philip’s three bicycles: a ten-speed equipped with hand brakes, a Huffy equipped with pedal brakes and a hand brake, and a BMX equipped with pedal brakes. Zachary was not familiar with hand brakes, and Philip told him that he could use the BMX but he was not to use the ten-speed. Nevertheless, when Philip went inside his house for a few minutes, Zachary rode the ten-speed bicycle down the driveway and onto Willow Point Trace, a cul de sac adjoining Willow Point Parkway.

At about that time, Bell was proceeding down Willow Point Parkway at the speed limit, 25 miles per hour. As he approached Willow Point Trace, Bell noticed children playing in the driveway. Out of caution, he moved to the center of the road. Then, out of the corner of his eye, Bell saw Zachary on the ten-speed bicycle. He moved more to the left, hoping to avoid being hit, but it was no use. Zachary and the ten-speed hit the right rear passenger door of Bell’s automobile. Zachary was injured seriously. In his deposition, Bell deposed that he was unable to see Zachary coming down Willow Point Trace because a row of shrubs blocked his vision.

“As a general proposition issues of negligence, diligence, contributory negligence, proximate cause, and lack of ordinary care for one’s own safety are not susceptible to summary adjudication but must be generally resolved by a jury except in plain, palpable and indisputable cases where reasonable minds could not disagree. [Cits.]” North v. Toco Hills, Inc., 160 Ga. App. 116, 119 (286 SE2d 346). We think this is just such a case.

Decided December 1, 1992

Chambers, Mabry, McClelland & Brooks, Douglas F. Aholt, Beth L. Singletary, for appellant.

Carlton R. Stewart, for appellees.

“Negligence is not to be presumed, but is a matter for affirmative proof. [Cit.] In the absence of affirmative proof of negligence, we must presume performance of duty and freedom from negligence. [Cit.]” Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 368 (203 SE2d 587).

In Neal v. Miller, 194 Ga. App. 231 (390 SE2d 125), that plaintiff, a nine-year-old boy, rode his bicycle down a steep driveway. His view of oncoming traffic was obstructed by some trees that extended along the right side of the driveway. Nevertheless, he increased his speed about halfway down the driveway and collided with that defendant’s automobile in the street. That defendant had been driving home when she saw a group of children in the street and slowed down and moved to the left side of the street. Just as that defendant was moving back to the right side of the street, the nine-year-old boy “ ‘shot out of the driveway’ ” on her left. She applied her brakes but was unable to avoid colliding with the nine-year-old boy. This Court found no affirmative proof of negligence and affirmed a directed verdict in defendant’s favor.

In the case sub judice, as in Neal v. Miller, 194 Ga. App. 231, supra, we find no evidence of negligence on the part of defendant.

Defendant is entitled to judgment as a matter of law. The trial court erred in ruling otherwise.

Judgment reversed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0767.
    ACADEMY LIFE INSURANCE COMPANY v. JOHNSON.
    (426 SE2d 34)
   Andrews, Judge.

Mrs. Johnson brought this lawsuit against Academy Life after her claim against the company for life insurance benefits was denied. Academy Life filed a motion for summary judgment which the trial court denied and we granted Academy Life’s application for interlocutory review to consider that denial.

On November 16, 1989, Donald Johnson, the decedent, completed an application for life insurance with Academy Life. At the top of the application form which he completed, in bold letters, are the words “PROPOSED INSURED,” after which various information is requested of the applicant. Several other references are made on the first page of the application to the “proposed insured.” On the second page of the application are 19 medical and insurance coverage questions to which the “proposed insured” must respond. At the bottom of that page is a paragraph which states:

“The persons signing below agree that all the answers given in this application and in any medical examination are complete and true to the best of our knowledge and belief; all the answers and this agreement shall form the basis and become a part of any policy issued. THE POLICY WILL TAKE EFFECT AS OF THE ISSUE DATE UPON DELIVERY AND PAYMENT OF THE FIRST PREMIUM DURING THE LIFETIME OF ALL PERSONS TO BE INSURED; HOWEVER, IF PAYMENT IS BY GOVERNMENT ALLOTMENT, WE SHALL HAVE NO LIABILITY UNTIL AN ALLOTMENT FORM HAS BEEN POSTED AND CERTIFIED. IF PAYMENT IS BY GOVERNMENT ALLOTMENT AND IN AN AMOUNT LESS THAN REQUIRED TO PROVIDE INSURANCE FOR THE FACE AMOUNT APPLIED FOR, WE MAY ADJUST THE FACE AMOUNT TO THE AMOUNT SUCH ALLOTMENT WILL BUY.”
* * *
“I UNDERSTAND information obtained by use of this Authorization will be used by Academy Life Insurance Company to determine eligibility for insurance. ... I have read this Authorization and agree that a copy will be attached to any policy issued.”

Beneath this paragraph, the signature of the “proposed insured” is requested and that of the “proposed insured’s spouse.” Beneath these signatures is a space for the “Agent’s Report” in which the agent agrees that “I submit this application, assuming full responsibility for delivery of any policy issued and for payment of the first premium thereon to the company. I know of no condition affecting the insurability of any Proposed Insured not fully set forth herein.”

In addition to this form application, on the same date Johnson also completed a form entitled “Applicant’s Supplemental Health Questionnaire” in which he elaborated on certain medical conditions. He wrote a check to the company, dated November 17, 1989, for the first premium on the policy, which he gave to the agent, and which was subsequently deposited in the bank by the company.

At some point in December 1989, Mr. Johnson died. At the time of his death, no policy had been delivered, nor had a policy issued. Mrs. Johnson submitted a claim for life insurance benefits, which claim Academy Life denied on the basis that the policy had not been issued or delivered at the time of the death. On April 1, 1991, Mrs. Johnson filed the instant lawsuit for benefits and various costs. Attached to her complaint was a letter from a representative of Academy Life which stated that at the time of Mr. Johnson’s death, no policy had issued, and that “if Mr. Johnson had lived, no policy would have been issued because of his medical condition.” Academy Life filed its motion for summary judgment with its answer to the complaint.

The essence of Mrs. Johnson’s argument that coverage exists is that the only requirement for issuance of the policy was payment of the first premium and that the application’s language supports this interpretation. Mrs. Johnson bases this argument on the following language from the application: “THE POLICY WILL TAKE EFFECT AS OF THE ISSUE DATE UPON DELIVERY AND PAYMENT OF THE FIRST PREMIUM.” She argues that this language is at least ambiguous and that parol evidence should be admissible. Accordingly, in response to the motion she submitted an affidavit, in which she swore that the agent who presented the application assured the Johnsons that “Donald would be insured by Academy so long as what Donald had put down was the truth and we paid our regular premiums.”

“The general rule is that an application for insurance, even with the concurrent prepayment of premiums, creates no binding contract of insurance until the insurer manifests its acceptance.” (Citations and punctuation omitted.) Atkinson v. American &c. Ins. Co., 165 Ga. App. 102, 103 (1) (299 SE2d 600) (1983); see also Thomas v. Union &c. Ins. Co., 168 Ga. App. 267 (308 SE2d 609) (1983); aff’d, 252 Ga. 259 (312 SE2d 333) (1984); Whitmire v. Colonial &c. Ins. Co., 172 Ga. App. 651 (323 SE2d 843) (1984); Robertson v. Life Ins. Co. of Ga., 196 Ga. App. 294 (396 SE2d 35) (1990). This rule is controlling here, and the trial court erred in failing to grant Academy Life’s motion for summary judgment.

Johnson relies upon North Carolina &c. Ins. Co. v. Bailey, 185 Ga. App. 191 (1) (363 SE2d 586) (1987), in which coverage was found because a receipt for payment which was given to the applicant explicitly so provided. Johnson’s reliance on Bailey is misplaced, since here there was no receipt which indicated that coverage had begun, nor does the application indicate that coverage began upon payment. The application clearly states that the policy will be effective upon its issue date. The “delivery and payment of first premium” are conditions to the issuance, but do not change the effective date of the policy. Johnson’s arguments that the policy is ambiguous as to when the policy takes effect and that parol evidence is admissible are without merit and accordingly, no issues of fact remain in the case. See generally Bedgood v. Woodmen of the World, 191 Ga. App. 644 (382 SE2d 421) (1989); OCGA § 33-24-16.

Decided November 18, 1992 —

Reconsideration denied December 2, 1992

Chilivis & Grindler, Anthony L. Cochran, for appellant.

Cofer, Beauchamp & Butler, Frank R. Seigel, for appellee.

Judgment reversed.

Birdsong, P. J., and Beasley, J., concur.

       Because we have reached our conclusion without regard to the additional documents which Academy Life filed after the trial court’s decision, we need not address arguments pertaining to the propriety of this supplementation.


author: McMurray, Presiding Judge. Sognier, Chief Judge,

text:
    A92A1078.
    ADAMS v. TRUST COMPANY BANK.
    (426 SE2d 36)
   McMurray, Presiding Judge.

Plaintiff Trust Company Bank filed this action alleging an indebtedness due from defendant Adams upon an automobile lease. Defendant answered raising several defenses including accord and satisfaction, failure to comply with the Consumer Leasing Act, 15 USC §§ 1640 and 1667, and counterclaimed seeking an award of damages and attorney fees pursuant to the Consumer Leasing Act. On opposing motions for summary judgment the superior court partially granted plaintiff’s motion for summary judgment, awarding the deficiency sought under the lease. The superior court also partially granted and partially denied defendant’s motion for summary judgment, awarding defendant a set-off of $1,000 under 15 USC § 1640, plus attorney fees. All issues were resolved except for the amount of the set-off of reasonable attorney fees to be awarded defendant pursuant to 15 USC § 1640 (a) (3). Held:

1. Defendant surrendered the vehicle to plaintiff, who sold the vehicle and based on the receipts of the sale calculated the amount due under the lease contract. Defendant presented evidence that he believed that the lease was terminated and his obligation under the lease eliminated when he turned the vehicle over to plaintiff. This understanding was clearly inconsistent with the provisions of the written lease, but defendant’s evidence was that he relied on representations of plaintiff’s agent that he would no longer owe on the lease if he surrendered possession and control of the said vehicle to plaintiff. Defendant’s evidence also sought to establish the reasonableness of his understanding, in that plaintiff’s representative gave the impression that she had authority to terminate the lease, and knew that defendant had suffered a major heart attack.

In addressing defendant’s defense of accord and satisfaction, the superior court relied upon contractual language in the lease requiring defendant to return the vehicle to plaintiff in the event of early termination of the lease or default and concluded that since “defendant was already obligated to surrender the vehicle ...” that the alleged accord and satisfaction was not supported by consideration. See Stamsen v. Barrett, 135 Ga. App. 156 (217 SE2d 320). However, this evaluation is flawed by the absence of any evidence that defendant was under an obligation to return the vehicle prior to the alleged oral agreement with plaintiff’s representative. In other words, there is no evidence that defendant was in default or that the parties had entered into any agreement for early termination under the terms of the lease. Thus, for purposes of reviewing the grant of summary judgment to plaintiff, we must presume that defendant was not under any prior obligation to return the vehicle to plaintiff when he entered into the alleged oral agreement with plaintiff’s representative calling for termination of the lease under terms inconsistent with those stated in the written lease. It follows that the alleged oral agreement or modification of the lease did not lack consideration since such was provided by defendant’s surrender of his rights under the lease including future possession and use of the vehicle. Holliday Constr. Co. v. Sandy Springs Assoc., 198 Ga. App. 20, 21 (3) (400 SE2d 380). The superior court erred in granting a partial summary judgment in favor of plaintiff.

2. Defendant also complains of the partial denial of its motion for summary judgment, arguing that under Curry Corp. v. Mooro, 195 Ga. App. 184 (393 SE2d 33), any violation of the Consumer Leasing Act renders the lease agreement void and unenforceable. The Curry decision was predicated on the proposition that “ ‘ “(w)here the terms of a contract directly involve the infraction of a civil statute not enacted for the purpose of raising revenue, and such infraction is penalized by a fine, or imprisonment or both, the contract is void and unenforceable.” (Cit.)’ Couch v. Blackwell & Assoc., 150 Ga. App. 739 (1) (258 SE2d 552) (1979).” Curry Corp. v. Mooro, 195 Ga. App. 184, supra at 185. This principle may be traced back to Civil Code (1910), § 4251, which appears in our present Code as OCGA § 13-8-1. A broad review of the related case law shows that the prohibition involved is directed towards contracts founded upon immoral or illegal consideration, or where the object of the contract is illegal or against public policy. Where the illegality is only collateral or remotely connected with the contract this rule has been held inapplicable. Shannondoah, Inc. v. Smith, 140 Ga. App. 200 (230 SE2d 351). A contract based on legal and binding consideration and containing an attempted waiver of a right which cannot be waived because contrary to public policy, which waiver is wholly incidental to the purposes of the contract, is severable, and the part which is legal is nevertheless enforceable. Brenau College v. Mincey, 68 Ga. App. 137 (22 SE2d 322). The test for determining whether a demand connected with an illegal transaction is capable of enforcement at law is whether plaintiff requires any aid from the illegal transaction to establish his case. McAndrew v. Taylor, 15 Ga. App. 555, 560 (83 SE 967). Curry Corp. v. Mooro, 195 Ga. App. 184, supra, as well as the case sub judice, involves a contract for the lease of an automobile. An entirely moral and legal object of a contract. In Curry, this court held that there was a direct relationship between enforcement of a lease and a failure to make the disclosures required under the Consumer Leasing Act. Upon re-examination of this position, it must be concluded that the alleged infractions of federal law are collateral to the object of the contract and are thus sever-able issues which do not compel a conclusion that the entire contract is void.

Furthermore, under the circumstances in Curry Corp. v. Mooro, 195 Ga. App. 184, supra, this court’s decision in First Citizens Bank &c. v. Owings, 151 Ga. App. 389 (259 SE2d 747), should have been followed rather than distinguished. Under Owings, the proper rule is that violations of the Truth in Lending Act or the Consumer Leasing Act give rise to the remedies prescribed therein, and do not serve to invalidate the contract or prevent a lender or lessor from enforcing its rights under the contract. Id. at 391. See also Fleming v. Fed. Land Bank &c., 167 Ga. App. 326, 327 (1) (306 SE2d 332); Good Housekeeping Shops v. Hines, 150 Ga. App. 240, 244 (4) (257 SE2d 205); Smith v. Society Nat. Bank, 141 Ga. App. 19, 20 (2) (232 SE2d 367).

In Curry Corp. v. Mooro, 195 Ga. App. 184, supra, this court lifted certain language from its proper context and misapplied it. For this reason, the holding in Curry must be overruled and the applicability of the correct principle in First Citizens Bank &c. v. Owings, 151 Ga. App. 389, supra, reconfirmed. It follows that the superior court did not err in partially denying defendant’s motion for summary judgment, in part, insofar as defendant sought a ruling that the lease contract at issue was void because of violations of the Consumer Leasing Act.

Judgment affirmed in part and reversed in part.

Sognier, C. J., Carley, P. J., Pope, Beasley, Cooper, Andrews and Johnson, JJ., concur specially. Birdsong, P. J., disqualified.

Sognier, Chief Judge,

concurring specially.

I concur fully in Division 1 of the majority opinion and in the judgment. I write specially because I have concluded that Curry Corp. v. Mooro, 195 Ga. App. 184 (393 SE2d 33) (1990), should be overruled not for the reason stated by the majority but because it conflicts with federal law.

Decided November 19, 1992 —

Reconsideration denied December 2, 1992

Barry G. Irwin, Phillip Walsh, for appellant.

Stokes, Lazarus & Carmichael, Karl M. Terrell, King & Spalding, Ralph A. Pitts, Robert R. Ambler, Jr., for appellee.

Long, Aldridge & Norman, Paul R. Shlanta, Bruce P. Brown, amici curiae.

Congress provided an exclusive remedy for Truth in Lending violations in 15 USC §§ 1610 (d), 1640 (a), 1667d (a). See Burgess v. Charlottesville S & L Assn., 477 F2d 40, 45 (4th Cir. 1973); see also 12 CFR § 213.8 (c). Voiding the contract as a penalty for a Consumer Leasing Act violation is not a remedy included within the federal statutory scheme, 15 USC §§ 1667d (a), 1640 (a); therefore, the inconsistent state law remedy applied in Curry was preempted by federal law. See American Express &c. Co. v. WEB, Inc., 261 Ga. 480, 482 (2), n. 4 (405 SE2d 652) (1991). Consequently, the decision in Curry was erroneous — not because, as the majority contends, it distinguished rather than followed First Citizens Bank &c. v. Owings, 151 Ga. App. 389 (259 SE2d 747) (1979), but rather because state law principles should not have been applied at all.

Accordingly, I would overrule Curry for the reason I have stated, not on the basis stated in the majority opinion.

I am authorized to state that Presiding Judge Carley, Judge Pope, Judge Beasley, Judge Cooper, Judge Andrews, and Judge Johnson join in this special concurrence.