author: Beasley, Presiding Judge.

text:
    A93A1429.
    HULSEY v. THE STATE.
    (435 SE2d 713)
   Beasley, Presiding Judge.

Appellant was convicted of theft by taking a 1990 burgundy Chevrolet pickup truck driven by Tony Ledford and owned by Sparta Carpets (Count 1); a 1986 Chevrolet Silverado pickup truck owned by Cornelius Ogle (Count 2); and a 1988 Chevrolet Silverado pickup truck owned by Clarence Vickers, a Florida resident (Count 3). OCGA § 16-8-2. Sufficiency of the evidence and admissibility of the photographic lineup and identification are at issue.

All three trucks were stolen within a 48-hour period on August 15 or 16, 1991, from the same general area near 1-75 in Dalton and Whitfield County.

Georgia State Patrolman Robert Bullard testified that during the late afternoon or early evening hours on August 16, he was on routine patrol proceeding northward on 1-75 in Gordon County, which borders Whitfield County’s southern boundary. He saw a pickup truck with its flashers on parked on the shoulder of the southbound lanes between Exits 132 and 133. Trooper Bullard turned around at Exit 133 and was proceeding back southward when he saw a burgundy pickup truck parked near the exit ramp of a rest area. An individual, whom Trooper Bullard was only able to describe as a white male in his twenties, was standing by the truck. He told Trooper Bullard that he was waiting for someone to come out of the rest area. Trooper Bullard got back into his car and was leaving when he saw the other, abandoned truck some 200 yards down the road with its flashers still going. Trooper Bullard went to investigate and noticed that this truck had a broken-out passenger window and a Florida tag.

While he was examining this truck, Trooper Bullard received a radio bulletin that while he had been talking to the man beside the other truck, a car had begun to leave the rest area; when the driver saw the patrol car, he backed up the wrong way on the exit ramp and went back into the rest area; and he and a passenger parked the car, got out, and ran into the woods. They were not apprehended.

After Trooper Bullard had gone back to the rest area to talk to the attendant, he received a radio lookout from Dalton for two stolen Chevrolet pickup trucks, one of which had a Florida tag. Trooper Bullard realized that he had spotted at least one of the trucks and called for assistance. After Trooper Payne appeared, the truck with the white male standing beside it was driven back into the rest area. However, the driver saw the officers, backed down the entrance ramp, got back on 1-75, and got off at Exit 132. Although Trooper Payne pursued the truck, he did not apprehend the driver. Within about 30 to 45 minutes, Ledford’s burgundy truck was found at a Piggly Wiggly store. It bore an Alabama tag.

Deborah Stewart, the rest area attendant, testified that earlier that afternoon two men had come to the rest area, parked adjacently a white Chevrolet automobile and a pickup truck, and moved items from one vehicle to the other. Stewart identified the truck as the one belonging to Vickers. The men left in separate vehicles but returned in the white car about an hour later. As previously stated, they saw the patrolman as they were leaving, abandoned the car, and absconded into the woods. Stewart got a good look at the driver of the car, whom she described as having dark curly hair and as being clean-shaven.

After notifying the State Patrol, Stewart observed a red pickup truck enter the rest area and park about ten feet from the abandoned white car. The driver asked her for the whereabouts of the two men in the car. She falsely stated that they were in the bathroom, hoping to detain him. He talked to her for about a minute at a distance of about a foot and then told her he needed to lock the car. He went to the car, got a piece of paper, put it in the car, removed an unidentified object from the car, rolled up the car windows and locked the doors. This took about two or three minutes. He came back to Stewart and talked to her for about another minute. He told her that if the two men came back to the car, they would have a key. He then got in the truck and left. This was the truck which later re-entered the rest area and was pursued by Trooper Payne. Stewart described the driver as about six feet tall, real skinny, with a beard, mustache, and shoulder-length reddish-brown hair.

These thefts were investigated by Whitfield County Sheriff’s Investigator Nancy Chadwick and Dalton Police Detective Keith Smith. They impounded Vickers’ truck, Ledford’s truck, and the white car. All three vehicles contained CB radios tuned to the same channel. Although the officers never recovered Ogle’s truck, they found various items belonging to both Vickers and Ogle in the white car. Inside the car, they found a handwritten note inscribed, “Gone home. Greg.” Gregory is appellant’s first name.

Detectives Chadwick and Smith learned that the white Chevrolet was registered to O. T. Hulsey, a resident of Tallapoosa, Georgia, who operated a car repair garage. He is appellant’s father. Appellant is a mechanic who buys old cars, fixes them up, drives them, and then sells them. He drove the white Chevrolet.

The detectives obtained a photograph of appellant and incorporated it into an array of six photographs. They showed several such photographic arrays or spreads to Stewart at her home on September 9. As they handed the spreads to her, they told her to take her time looking at them and try to be sure. As she was viewing them, they went to another area of the house. She looked at one spread and then another for about two minutes before she was sure. She picked out two of the perpetrators and positively identified appellant as the man driving the red truck. Stewart testified that after she identified appellant, Detective Smith said, “ ‘All right.’ He said, ‘We’ve been after a ring for a while and we believe we’ve finally got somebody to identify one of them.’ ”

Appellant testified that he had sold the white car for $400 cash on July 31, but that he did not know the name of the person to whom he had sold it. Nor did he have a bill of sale. He produced a bank slip showing a $400 deposit on August 1, as proof that he had received the proceeds of the sale.

He also presented alibi witnesses. One of them lived in the same town in Alabama from which the tag found on Ledford’s truck originated.

1. Appellant contends that the trial court erred in denying his motion for directed verdict as there was insufficient evidence to prove him guilty of theft by taking under all three counts of the indictment.

Appellant argues that the circumstantial evidence did not ex-elude every other reasonable hypothesis save that of guilt. OCGA § 24-4-6. “ ‘To sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond reasonable doubt, of guilt. [Cit.] Questions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb the finding, unless the verdict is unsupportable as a matter of law.’ [Cits.]” Chambless v. State, 165 Ga. App. 194, 196 (2) (300 SE2d 201) (1983). The verdict is not unsupportable as a matter of law.

As argued by the State, the evidence was sufficient to have authorized any rational trier of fact in finding beyond a reasonable doubt that appellant was concerned in the commission of these crimes. OCGA § 16-2-20.

2. Appellant contends that under the totality of the circumstances, the court committed reversible error when it admitted the photographic lineup evidence and identification testimony.

Appellant argues that the array containing his photograph was impermissibly suggestive, in that appellant’s photograph is the' only one depicting a suspect as being six feet tall, and two of the photographs depict men who are obese. After reviewing the record, we hold that the array was not impermissibly suggestive in these regards. Height is not shown for everyone, and body size is not depicted for any.

Appellant also argues that Detective Smith’s remark was unduly suggestive and tainted Stewart’s in-court identification. It is not good practice to indicate to a witness that she has chosen the “right” person as it could lead to an improper tainting of a subsequent in-court identification in a questionable case. Whether a subsequent in-court identification is tainted depends on all the circumstances of each case. Dodd v. State, 236 Ga. 572, 573 (224 SE2d 408) (1976). “ ‘(Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ [Cits.]” Id.

The witness observed the appellant for five minutes, and part of this time she was conversing with him while he was only a foot away. Her attention was focused upon him as a possible suspect. She quickly identified his photograph in the- display and maintained confidence in the accuracy of her identification. Appellant does not argue that her prior description of him was inaccurate. Under all of the circumstances, it is safe to conclude that the officer’s remark did not taint the witness’ in-court identification.

Decided August 27, 1993

Reconsideration denied September 14, 1993

Little & Westbury, Victoria D. Little, Thomas E. Westbury, for appellant.

Jack O. Partain III, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Cooper and Smith, JJ., concur.


source: Caselaw Access Project

author: Pope, Chief Judge.

license: Public Domain

text:
    A93A1696.
    In the Interest of J. H., a child.
    (435 SE2d 753)
   Pope, Chief Judge.

Appellant appeals from an order of the Juvenile Court of Fulton County terminating her parental rights with respect to her son J. H. The juvenile court also terminated the parental rights of the putative father of J. H., but no appeal has been taken from that portion of the juvenile court’s order.

The record shows that J. H. was determined to be a deprived child and placed in the custody of the Department of Family & Children Services (DFCS) when he was approximately four months old. Appellant, who had been hospitalized approximately one month before J. H.’s birth, was observed to be delusional both before and after J. H. was born, had at that time been unemployed for approximately ten years and had been homeless for approximately three years. Appellant also had a history of involuntary hospitalizations because of mental illness beginning in approximately 1989.

J. H. was approximately 15 months old at the time of the termination hearing. At that hearing evidence was presented that appellant, who was still unemployed and living in a women’s shelter, had been evaluated by Dr. Hilary Slavin, a clinical psychologist, who diagnosed appellant as suffering from “[s]chizophrenia of paranoid type, chronic with acute exacerbation.” Dr. Slavin determined appellant’s intelligence to be in the low average range. Dr. Slavin testified that appellant was actively delusional and that she had been delusional for at least three years. The witness further testified that appellant needed in-patient treatment for her mental illness and that if she received the appropriate medication for her illness there was the possibility of some improvement, but that as long as appellant remained unmedicated and untreated her prognosis was poor, with her condition remaining the same or getting worse. Dr. Slavin testified appellant was unable to take care of her child because of her mental illness, that the child would be in danger if placed in appellant’s care, and that it was likely that this situation would continue in the immediate future. Dr. Slavin testified and also recommended in a written evaluation which was admitted into evidence at trial that termination of appellant’s parental rights be considered, based on her “history of chronic psychosis with paranoid delusions and her documented unwillingness to cooperate with treatment.”

Irene Neely, a caseworker with Fulton County DFCS, also testified at the hearing. According to Neely, appellant did visit with her child on a regular basis, but she was not in touch with the child’s feelings or needs. According to Ms. Neely, appellant’s behavior when she was around the child caused the child to become upset. Ms. Neely tried to explain to appellant that her behavior was upsetting to the child and to suggest ways in which appellant could act more appropriately around J. H., but that appellant resisted such efforts. According to Neely appellant expressed her delusions to J. H. and assigned “roles and development” to the child which were beyond his years and ability to understand. In Neely’s opinion appellant could not take care of her child because of her impaired judgment and mental problems. Neely testified that at some point appellant had been hospitalized and received medication but that her impression from talking to appellant during this time was that the medication did not prevent appellant from being delusional.

Appellant also testified at the termination hearing. Although appellant could at times respond appropriately to the questions posed to her, the transcript shows that appellant would quickly deviate from the subject at hand. A large part of appellant’s testimony was unresponsive and “incredible,” and gave striking insight into her obviously deeply entrenched delusional system. The juvenile judge repeatedly directed appellant to respond to the questions asked, and the judge also questioned appellant in an attempt to gain pertinent and relevant information from her. Appellant repeatedly indicated that she was not going to take medication for her mental illness, that she did not believe that she required such medication, and that in the past she had been poisoned by medication given to her while she was hospitalized because of her mental illness.

At the conclusion of the hearing the juvenile judge announced her intention to terminate the putative father’s parental rights but indicated she was going to reserve judgment on the issue of the termination of appellant’s parental rights, pending an independent psychiatric examination of appellant. The court directed that the record remain open so that such an examination could be conducted, and a limited hearing was subsequently held in order to place the findings of the examination in the record. At that second hearing, the parties stipulated that the written findings of Dr. Ann McNeer, who performed the second evaluation of appellant, be made a part of the record, but that Dr. McNeer would not be called to testify. Dr. McNeer’s findings indicated that appellant was “irritable, actively delusional, and on no medications [when interviewed]. She had pressured speech and demonstrated difficulty staying on topics — especially those about which she held no delusional beliefs.” During the interview, appellant denied that she was mentally ill and demonstrated many of the same delusional beliefs which were apparent when she testified at the termination hearing. She also reiterated her refusal to take medication for her illness. Dr. McNeer noted, however, that despite her delusions, “when asked to focus on questions having to do with parenting, [appellant] became noticeably more coherent and rational.” However, the report further indicated that “[w]hen allowed to ramble and talk about the child’s dietary and medical needs, [appellant’s] judgment deteriorated.” As an example, Dr. McNeer noted that “ [appellant] is convinced that her child has been abused and this fact, along with an attempt to sell the child, has been covered-up.” Dr. McNeer summarized her findings as follows: “[Appellant] is a very concerned mother who is seeking reunification with her child. She possesses adequate intellectual capabilities to learn parenting skills and has absorbed quite a bit of parenting information from her mandated classes as well as prior education. Despite her knowledge, [appellant] has been unable to interact appropriately with her son during supervised visits or keep her delusional material separate from her maternal responsibilities. Additionally, she is currently unable to see the child as an entity separate from herself with needs which may not conform to her wishes. She is, therefore, at risk for making poor decisions on the child’s behalf, based upon her own needs and delusional beliefs. Given [appellant’s] current mental state and her unwillingness to accept a psychiatric diagnosis and consequent treatment for mental illness, it is unlikely that her condition will improve in the foreseeable future. Additionally, records documenting a prior trial of involuntary medication indicate no improvement in factors currently affecting her ability to parent effectively. Should a full treatment regimen later be accepted/successful and [appellant] become less influenced by her delusions, a re-evaluation should be performed concerning her abilities to parent any children then in question.”

Following the second hearing, the trial court entered an order terminating the parental rights of both appellant and the putative father of J. H. It is from that order that appellant brings the present appeal to this court.

1. In her first, third and fourth enumerations of error, appellant challenges the sufficiency of the evidence to support the termination of her parental rights.

Decided September 14, 1993.

Murray Leizman, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior

“ ‘(T)he appropriate standard of appellate review in a case where a parent’s rights to [her] child have been severed is “whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” ’ [Cits.]” In the Interest of A. O. A., 172 Ga. App. 364, 365-366 (323 SE2d 208) (1984). “The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review . . . is not met.” In re B. D. C., 256 Ga. 511, 513 (350 SE2d 444) (1986). “ ‘ “(I)t is not proper to consider the question of termination of parental rights based solely upon a ‘welfare of the (child)’ test, without some required showing of parental unfitness, caused either by intentional or unintentional misconduct resulting in abuse or neglect of the (child), or by what is tantamount to physical or mental incapacity to care for the (child).” (Cit.)’ [Cit.]” (Emphasis supplied.) In the Interest of T. A. L & L. I. L., 177 Ga. App. 846, 847 (341 SE2d 496) (1986).

“There was clear and convincing evidence in the instant case that appellant is mentally and emotionally incapable of caring for her child. See generally In re S. R. J., 176 Ga. App. 685 (337 SE2d 444) (1985); In the Interest of T. R. G., 162 Ga. App. 177 (290 SE2d 523) (1982). ‘The trial court’s order contained detailed findings which supported the conclusions necessary to justify the termination of appellant’s parental rights. Those findings were supported by clear and convincing evidence. (Cit.)’ In re D. C. & J. T. C., 176 Ga. App. 30, 32 (335 SE2d 148) (1985). ‘(T)he trial court specifically found that the deprivation of the (child) was continuing and was likely to continue into the future. There is sufficient “clear and convincing evidence” to support that finding. (Cit.)’ ... In the Interest of T. A. L. & L. I. L., supra at 847. Accordingly, the trial court did not err in terminating appellant’s parental rights.” (Emphasis deleted.) In re A. N. Y., 181 Ga. App. 499 (353 SE2d 8) (1987). See also In the Interest of J. R., 202 Ga. App. 418 (414 SE2d 540) (1992).

2. Appellant’s contentions concerning actions or inactions taken by her former attorneys are unsupported by the record and without merit.

Judgment affirmed.

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

Assistant Attorney General, Teresa E. Lazzaroni, Staff Attorney, Robert E. Hall, for appellee.


author: Birdsong, Presiding Judge.

text:
    A93A1237.
    BELINS v. THE STATE.
    (435 SE2d 675)
   Birdsong, Presiding Judge.

Herbert Aurel Belins was tried before a jury and found guilty of aggravated assault, in violation of OCGA § 16-5-21 (a) (2). He appeals from the judgment of conviction and sentence. Held:

1. Belins enumerates the general grounds. On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the adjudication of guilt is supported by sufficient competent evidence. Bohannon v. State, 208 Ga. App. 576 (1) (431 SE2d 149). The evidence, while in conflict, shows that appellant, standing on his own property, aimed and fired a shotgun at the teenage victim who was operating a four-wheel all-terrain vehicle on the adjacent public highway. The victim described seeing Belins run out of his home, reach for something, and then raise this object to his shoulder. The victim heard what he thought was a gunshot and then felt a stinging in his left rear shoulder blade, where a pellet had become imbedded. Belins admitted firing his shotgun at crows on that day and at the time alleged but vehemently denied shooting at the victim.

A person commits the offense of aggravated assault when he assaults with a deadly weapon, which, when used offensively, is likely to or actually causes serious bodily injury. OCGA § 16-5-21 (a) (2). The act of intentionally firing a gun at another, in the absence of justification, is sufficient to support a conviction for aggravated assault under this statute. Steele v. State, 196 Ga. App. 330, 331 (2) (396 SE2d 4). The evidence adduced below authorized a rational trier of fact reasonably to find proof of appellant’s guilt of aggravated assault beyond a reasonable doubt, under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See Cox v. State, 205 Ga. App. 375 (1) (422 SE2d 68). The enumeration of the general grounds is without merit.

2. Invoking Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215), appellant specifically requested access to written statements made by any witnesses interviewed by the police and generally demanded all material known to the State which was exculpatory or favorable to the accused. The prosecutor filed a certificate of compliance indicating that the accused had been supplied with a copy of the indictment, an updated witness list, a medical report, and the incident report. After the verdict and sentencing, the attorneys conducted a debriefing or question-and-answer session with the members of the jury. During this session, the prosecutor made first mention of a pretrial oral unrecorded statement by the victim, Bryan Martin, to the effect that Martin had been shooting guns with his friend, Brad Yother, earlier on the day in question. As a special ground for his motion for new trial, Belins urged that this statement should have been disclosed to the defense by the prosecution. The overruling of his motion on this ground is enumerated as error.

“ ‘There is no general constitutional right to discovery in a criminal case, and Brady did not create one. . . .’ [Cit.] [Due process does not require] that ‘as a matter of constitutional law everything must be disclosed which might influence a jury.’ [Cit.]” Castell v. State, 250 Ga. 776, 782 (2) (301 SE2d 234). However, “suppression by the prosecution of evidence favorable to the accused which is material to either guilt or punishment violates due process.” Shearer v. State, 259 Ga. 51 (1) (376 SE2d 194). Georgia law does not provide that statements given prior to trial by key prosecution witnesses be generally made available for inspection by the defendant in criminal cases, unless such evidence is exculpatory. Walter v. State, 256 Ga. 666, 668 (1) (352 SE2d 570); Grissom v. State, 187 Ga. App. 653, 655 (2) (371 SE2d 137). Exculpatory or favorable witness statements are subject to disclosure under the due process constraints imposed upon state criminal prosecutions by the Fourteenth Amendment. Wilson v. State, 246 Ga. 62, 65 (1) (268 SE2d 895); Holbrook v. State, 162 Ga. App. 400, 401 (1) (291 SE2d 729). Accord Hicks v. State, 232 Ga. 393, 395 (207 SE2d 30).

The victim’s statement that he and his friend had been shooting earlier in the day does not in any way exonerate Belins. It does not contradict the victim’s testimony which directly implicated Belins, establish an alibi for Belins, or show the impossibility of the victim’s version of events. At best, it admits indirectly of the bare possibility that the victim was shot earlier than he testified by someone other than the actor identified by the victim under oath. “[T]o prevail on the basis of Brady v. Maryland, [supra], the appellant must indicate the materiality and the favorable nature of the evidence [discovered after trial]. [Cits.]” Hamby v. State, 243 Ga. 339, 340 (2) (253 SE2d 759). “The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U. S. 97, 109-110 (III) (96 SC 2392, 49 LE2d 342). Accord Wallin v. State, 248 Ga. 29, 33 (6) (279 SE2d 687). The trial court did not err by refusing to grant a new trial on this asserted basis.

Belins further urges that the statement was subject to disclosure as impeaching and was within the bounds of his general Brady request. Impeachment evidence showing bias or interest on the part of a key prosecution witness falls within the Brady rule. United States v. Bagley, 473 U. S. 667, 676 (II) (105 SC 3375, 87 LE2d 481), citing Giglio v. United States, 405 U. S. 150, 154 (92 SC 763, 31 LE2d 104). Accord Allen v. State, 128 Ga. App. 361 (196 SE2d 660). However, impeaching evidence is material in the constitutional sense “only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, supra at 682 (III).

The pretrial statement at issue is not material impeachment evidence as to the victim, because he never testified on this point. The statement does not indicate that the friend, with whom the victim was shooting earlier, committed perjury at trial. This witness testified on cross-examination that he could not recall whether they had been shooting. The inability to confront the companion with the victim’s pretrial statement so as to attempt impeachment on a collateral issue is wholly insufficient to establish a reasonable probability that, had the statement been disclosed, the result of the proceeding would have been different so as to undermine confidence in the outcome of the trial. The trial court did not err in overruling appellant’s motion for new trial on the ground that the prosecution failed to disclose material impeachment evidence.

3. Appellant attempted to impeach the victim’s credibility by asking him about “any disciplinary] problems, [had he] been suspended from school?” Over the State’s relevancy objection, this line of questioning was disallowed. This evidentiary ruling is enumerated as error.

The stated reason for attempting this line of questioning was to show that, because of the victim’s history of unruly and disruptive behavior in school, he had a motive to fabricate the appellant’s responsibility for the injury. In this regard, appellant’s reliance upon Hamilton v. State, 185 Ga. App. 536 (1) (365 SE2d 120) is misplaced. There, the juvenile victim of an alleged rape previously was adjudicated delinquent and was subject to certain conditions of probation. Hamilton claimed that the juvenile’s conduct was voluntary. He sought to show the alleged victim had fabricated her version of events to avoid revocation of probation. Thus, the fact that she was subject to probation revocation was relevant and material to show the bias of self-interest or self-preservation.

- Here, the mere fact that the victim may have been disciplined previously at school does not itself demonstrate the possibility of subsequent additional disciplinary action arising out of this extracurricular event as would provide Martin with a motivation to fabricate Belins’ involvement in the shooting, for reasons of self-interest or self-preservation. “The scope of cross examination is not unlimited. The extent of permissible cross examination lies within the sound discretion of the [trial] court. [Cits.] An irrelevant or immaterial line of inquiry may be curtailed. [Cits.]” Decker v. State, 139 Ga. App. 707, 708 (2) (229 SE2d 520). The trial court did not abuse its discretion in restricting this irrelevant line of inquiry on cross-examination. Pace v. State, 157 Ga. App. 442, 444 (2) (278 SE2d 90).

Decided August 19, 1993

Reconsideration denied September 15, 1993

John J. Capo, for appellant.

C. Andrew Fuller, District Attorney, Ben L. Leutwyler III, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1253.
    ARNOLD v. McKIBBINS.
    (435 SE2d 685)
   Birdsong, Presiding Judge.

Annie Rae Arnold appeals the contempt order of the superior court. Plaintiff/appellee Rupearllar McKibbins initiated suit averring claims to quiet title, and claims for trespass and damage to shrubs, intentional infliction of emotional distress, and tortious interference with contract relations. Appellant Arnold answered and filed a counterclaim for abusive litigation pursuant to Yost v. Torok, 256 Ga. 92 (344 SE2d 414). The trial court entered a consent order, finding, inter alia, that (a) the hedges were the property of appellee and her successors; (b) appellee had the responsibility for maintenance of the hedges at a height not to exceed five feet; (c) appellee had the responsibility for trimming the hedges except on the side fronting appellant’s property. It also ordered both appellant and appellee “to have no contact of a harassing, intimidating, molesting or annoying nature, included but not limited to words or gestures.” The order further provided: “The parties acknowledge that they have been admonished in open court that failure to comply with any term of this agreement shall be deemed a contempt of court and may be punished by fine and/or incarceration,” and held “all remaining claims of the parties are dismissed without prejudice.”

Thereafter, appellee filed a petition for contempt averring that appellant had violated the consent order by directing a young man in her employ to cut the top of the hedges despite appellee’s admonition that such action was in violation of the consent order, and that the employee cut the top of the hedges. Appellee/petitioner further averred that this action was taken for the purpose of harassing, intimidating, molesting and annoying said appellee. Appellant, pro se, filed a response and “counter petition” asserting, inter alia, that appellee was in contempt of court, seeking to deter appellee from future harassing-type conduct, and praying for damages for the infliction of mental anguish and emotional stress, “prompted by [appellee’s] frivolous, harassing, intimidating, molesting and annoying petition to cite in contempt.” Held:

1. Appellant’s assertion that the trial court erred in issuing a rule nisi, bearing a date of December 11, 1992 (apparently due to clerical error), and filed November 13, 1992, is without merit. Appellant claims the rule nisi is invalid because appellee’s contempt petition was not supported by citation of authority as required by USCR 6.1; the trial court considered the petition without the requisite showing of the legal standard required for a holding of contempt; and appellee failed to present evidence to the court sufficient to shift the burden to appellant to show cause why she should not be held in contempt. USCR 6.1 on its face pertains to motions “made prior to trial.” A petition of contempt is not a “motion made prior to trial” within the meaning of USCR 6.1. Moreover, a trial judge is presumed to know the law, Rowe v. Rowe, 195 Ga. App. 493 (2) (393 SE2d 750), and would not abuse his discretion by declining to dismiss a motion for failure to comply with the citation provisions of USCR 6.1. Moreover, the record does not establish that the trial judge prejudicially applied an erroneous legal standard. Further, appellant’s contention that there was no stipulation to the facts contained in appellee’s affidavit accompanying her petition is without merit; assuming arguendo, USCR 6.1 had been applicable, it does not require that facts contained in affidavits be stipulated. Also, appellant by his factual assertion in his brief that “no evidence other than [appellee’s] unstipulated allegations of fact accompanied said petition,” is an admission in judicio that the petition was accompanied by an affidavit of fact. Weir v. McGill, 203 Ga. App. 431, 432 (417 SE2d 57); Bannister v. State, 202 Ga. App. 762, 766 (415 SE2d 912); West v. Nodvin, 196 Ga. App. 825 (397 SE2d 567). Appellant’s other assertions in support of this enumeration likewise are without merit.

2. The superior court did not err in not finding appellee and her attorney in contempt of its order of August 26, 1992. No response was required of appellee to appellant’s response and counter petition, as the trial court did not require one. OCGA § 9-11-12 (a). Moreover, averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided. Chan v. W-East Trading Corp., 199 Ga. App. 76, 80 (5) (403 SE2d 840). The trial judge in this case was the factfinder. The transcript of evidence does not establish, as a matter of law, that appellee was in contempt of the consent order. “ ‘ “ ‘A trial judge sitting without a jury is entitled to have his judgment considered as a verdict by a jury’ ” ’ ” (Collier v. South Carolina Ins. Co., 205 Ga. App. 323, 324 (422 SE2d 52)); accordingly, it would be inappropriate for this court to substitute its judgment for that of the trial court regarding the weight of evidence and witness credibility.

3. Appellant asserts “ ‘[a]n order or judgment that merely declares the rights of the parties, without any express command or prohibition, is not one which may be the basis of contempt proceedings.’ ” Ogletree v. Watson, 223 Ga. 618, 619 (2) (157 SE2d 464). We accept this as a correct statement of law; however, the order in this case does contain an “express command or prohibition” within the meaning of Ogletree, supra.

4. Contrary to appellant’s contentions, the trial court did not capriciously issue summary punishment. Compare Jackson v. State, 225 Ga. 553, 557 (4) (170 SE2d 281) and Young v. Champion, 142 Ga. App. 687, 690 (2) (236 SE2d 783). Appellant was found in contempt following a hearing. Appellant received adequate notice and a hearing at which she was accorded the right of confrontation and a meaningful opportunity to respond to the allegations of contempt; she was not denied any right of due process. Compare McDaniel v. State, 202 Ga. App. 409, 411 (414 SE2d 536) where appellant was deprived of the basic due process components of reasonable notice and meaningful opportunity to respond. Moreover, the mere fact that appellant appeared at the hearing pro se does not constitute a denial of due process; at the hearing, appellant cross-examined opposing witnesses, testified in her own behalf, asserting a defense of mistake of fact as to which hedges were included within the consent order, and offered photographs of the hedges in support of her contentions. This enumeration that appellant was denied rights of liberty and property without due process is without merit.

5. Appellant argues there is nothing in the record to support the trial court findings that the judge left his bench, utilized appellant’s table, and demonstrated in three dimensions the prohibition against appellant’s cutting the top of the hedges. Suffice it to say appellee testified that at the consent order hearing: “The consent order that we just got from the judge specifically states that she cannot touch the top of the hedges. She can only go on the part fronting to her. The judge came out of his chambers’ chair and came down ... at that table ... at the front and explained [the consent order] to us specifically. I was asked not to cut the hedges. . . . My son was given permission by the judge to cut the hedges. ... At that time, he asked us did we understand everything. . . . [E] very thing was ironed out at this same courtroom at this same table. ... He wrote the consent up. ... At that particular time, [appellant] stated that she understood. I understood and we signed the consent order.” This testimony substantially addresses the same matters stated on the hearing record by the trial judge. Assuming arguendo that the trial court erred by stating on the record the manner in which he instructed the parties as to the terms of the consent order, such error was rendered harmless by the duly admitted, substantially cumulative testimony of appellee regarding such instructions. See Chester v. State, 162 Ga. App. 10, 14 (290 SE2d 117); accord Platt v. Nat. Gen. Ins. Co., 205 Ga. App. 705, 710 (1) (423 SE2d 387).

Decided August 20, 1993

Reconsideration denied September 15, 1993

Ann R. Arnold, pro se.

Mohr & Farnham, Bill M. Mohr, for appellee.

6. The appellate standard of review of a criminal contempt conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. In re Smith, 205 Ga. App. 857, 858 (424 SE2d 45). On appeal an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737).

Applying the above standard and rule, we find that a rational finder of fact could conclude, beyond a reasonable doubt, that appellant had committed an act of contempt. Further, we will not disturb the trial court’s finding that “this court is not convinced by defendant’s representations of a misunderstanding regarding the requirements of the subject consent order.” The rejection of appellant’s claim of mistake was based on the weighing of the evidence and determination of witness credibility; we will not reverse the trial court as to such matters where, as here, a factfinder could conclude, beyond a reasonable doubt, that appellant was in contempt. Accordingly, the trial court did not err in finding appellant in contempt.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1508.
    FULTON COUNTY v. THREATT et al.
    (435 SE2d 672)
   Birdsong, Presiding Judge.

Fulton County appeals the order of the trial court, filed in January 1993, granting the motion of J. W. Threatt, Jr., and other appellees to set aside a judgment entered on August 10, 1976, awarding condemnees $5,285.23 and condemning certain land for purposes of a permanent sewer easement and temporary construction easement.

Fulton County commenced this condemnation action by filing a complaint in rem in July 1976. Condemnees Threatt and Ace Sand Company filed an answer; a special master was appointed who ultimately entered an award in favor, inter alia, of condemnees in the amount of $5,285.23; the superior court entered an order confirming this award and vesting title to the easements in Fulton County in August 1976. The record reflects that condemnees filed no exceptions to the award. See generally Leach v. Ga. Power Co., 228 Ga. 16, 21-22 (183 SE2d 755). On August 10, 1976, condemnee Threatt filed a timely notice of appeal. However, on August 23, 1976, Threatt voluntarily applied for and thereafter obtained the $5,285.23 award, which had been paid into the registry of the court. On April 9, 1979, Threatt subsequently dismissed his appeal with prejudice. On January 16, 1990, a Fulton County acquisition specialist was assigned a project to coordinate certain easement acquisition; his review of the files revealed that an easement across Threatt’s property had been acquired by condemnation in 1976. On March 3, 1990, Fulton County notified Threatt, by certified mail return receipt requested, of its intention to begin construction of the sewer line; sewer line installation commenced on July 25, 1992. The Fulton County land department file and the acquisition specialist’s file on Threatt’s property revealed no evidence of any complaints having been filed with the land department regarding the 1976 acquisition of the easement by condemnation. Fulton County commenced construction in and usage of the easement area on July 25, 1992. Condemnees initiated no further action in this case until its motion to set aside the 16-year-old judgment was filed on September 18, 1992. Thereafter, before the superior court, condemnees attacked the judgment as being inconsistent and void on its face; however, the record reflects they did not contest the adequacy of the $5,285.23 award. The trial court granted the motion and set aside the condemnation judgment. Held:

Pretermitting whether the original condemnation judgment contained either an amendable or non-amendable defect (compare Leach, supra at 20), or was, for any legal cause, void on its face, voidable, or valid, is the issue whether condemnees are estopped nevertheless from attacking the 16-year-old judgment by reason of their conduct. We find condemnees are estopped.

1. Regarding the issue of estoppel, the controlling precedent is Wrege v. Cobb County, 203 Ga. App. 241 (416 SE2d 562). The ultimate issue litigated before the superior court, during the motion to set aside, was that of the county’s right to condemn the property; the record establishes that the issue of adequacy of compensation for the taking was not effectively litigated. As held in Wrege, supra at 242, and contrary to appellee’s contentions, by accepting payment for the property, condemnees are broadly estopped from contesting not only the county’s right to condemn the property but also the validity of the taking. The condemnees’ acceptance of payment after an award estops the condemnees thereafter from urging objections to the condemnation proceedings (see Central of Ga. R. Co. v. Bibb Brick Co., 149 Ga. 38, 39 (2) (99 SE 126)), to the necessity of the taking, or to the validity of the condemnation proceedings (see Williams v. City of LaGrange, 213 Ga. 241, 244 (2) (98 SE2d 617)). That is, they are es-topped from directly or indirectly protesting the condemnation itself. See Tingle v. Ga. Power Co., 150 Ga. App. 867, 868 (258 SE2d 668). However, if timely pursued, acceptance of payment would “in no way preclude[ ] one from protesting the value amount of the award.” (Emphasis supplied.) Id. at 868, n. 1.

Additionally, by withdrawing the money without timely protesting the validity of the award, appellant was acquiescing sub silentio as to the enforceability of the award, and perforce, the adequacy of the description therein contained. Moreover, appellant’s act of voluntarily dismissing his appeal is further conduct evincing such acquiescence. To allow appellant to prevail under these circumstances would be contrary to the well-established appellate rule that a party cannot suffer what he deems to be an injustice during the course of a trial, hoping for an acceptable result, and then after the trial first state his objection to the procedure followed. See Bruce v. State, 259 Ga. 798 (2b) (387 SE2d 886); Bolden v. Carroll, 239 Ga. 188 (1) (236 SE2d 270). Appellant, however, did more than silently suffer; he engaged in a litigative procedure inconsistent with his current claims. Accordingly, invocation of the doctrine of estoppel is clearly appropriate in this instance.

2. Condemnees long ago withdrew their appeal with prejudice; a new appeal cannot now be commenced. However, condemnees assert that, because the judgment is void on its face, it can be attacked at any time. Although OCGA § 22-2-113 (a) provides thát the tender, payment, or acceptance of the amount of the award shall not prevent any party from prosecuting an appeal, this provision is not applicable in this case. First, appellee withdrew his original appeal with prejudice, and therefore this statutory provision has no application to the situation before us. Secondly, assuming this case can be classified as an appeal within the meaning of this Code section, this statutory “language is not applicable to appeals in which the condemnee challenges the right to condemn, [the validity of the condemnation proceeding or order, or otherwise directly or indirectly protests the condemnation itself,] as opposed [merely to challenging] the amount of the award.” Wrege, supra at 242. Third, condemnees consistently have claimed that the condemnation judgment is void on its face due to apparent inconsistencies as to the description of the property or property interests being condemned. These inconsistencies should have been readily apparent to condemnees when the judgment was entered in 1976 and, certainly apparent by the time they timely filed their notice of appeal. In Marshall v. Marshall, 257 Ga. 494, 495 (360 SE2d 572), the trial court granted a motion to set aside a final judgment of divorce finding that an absence of personal jurisdiction over the wife amounted to a non-amendable defect on the face of the record. In reversing judgment, the Supreme Court held: “ ‘(A) petition in equity would have been to no avail if [the husband] knew or should have in the exercise of reasonable diligence discovered’ ” the ground for setting aside the judgment, and nevertheless failed to raise it timely on appeal. Id. at 495. “ ‘This same diligence rule applies where appellant uses a motion to set aside the judgment and he is precluded from using the ground which he had known or could have discovered through reasonable diligence.’ ” (Citations omitted.) Id.; see Lee v. Henson, 198 Ga. App. 701, 702 (402 SE2d 548); see generally Gregory, Georgia Civil Practice, Judgment § 7-5 (D) (1). We conclude the rule of estoppel in Wrege, supra, applies whether the judgment is void on its face or merely voidable. An appellant cannot slumber on his rights, lull the opposing party into a false sense of litigative security, and then years later obtain a set aside of a judgment on a ground that should have been discovered through exercise of due diligence and timely appealed.

Decided August 17, 1993

Reconsideration denied September 15, 1993

Weiner, Yancey & Dempsey, Beryl H. Weiner, Bryan P. Hilton, for appellant.

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, for appellees.

Judgment reversed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1641.
    CASORIA v. THE STATE.
    (435 SE2d 678)
   Birdsong, Presiding Judge.

Vincent Antonio Casoria was charged with two counts of aggravated assault upon a police officer, driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1), fleeing and attempting to elude, and having no insurance. He was acquitted of the aggravated assault charges; the court directed a verdict of “not guilty” as to the no insurance count. But appellant was convicted of DUI and fleeing to elude. His sole enumeration of error is that the trial court erred in admitting in evidence two prior DUI convictions as similar transaction evidence.

Appellant salesman met a customer at a Holiday Inn; appellant was in the lounge for “quite a while” and consumed alcohol.

The manager testified, based on 19 years experience as lounge manager, and having seen individuals in various stages of intoxication, that appellant was so intoxicated that “when he got up off the stool he stumbled and he would slur his words.” Appellant was also staggering. The manager also testified that he would not have offered to put appellant into two cabs and to pay for them if he had “thought he’d been able to drive.”

Appellant, who claimed he was fearful of the police due to witnessing the prior fatal shooting of his neighbor by sheriff’s deputies, initially yielded to the blue light signal; however, appellant fled when the officer approached him with his revolver exposed to view. During the pursuit, appellant swerved his car toward a police car a couple of times to prevent it from passing him and at one point collided with a police car. After a brief chase, during which appellant “picked up speed and began to go south ... in a reckless manner and a high rate of speed” weaving his car from left to right, he was pulled from his car, handcuffed, sprayed with a cayenne pepper-based substance known as “Cap-Stun” when he resisted arrest.

At trial and over repeated objection, testimony and documentary evidence of appellant’s two prior DUI convictions were introduced.

Pursuant to USCR Rule 31.1 and 31.3, the State entered a written motion to present evidence of similar occurrence and requested a hearing prior to trial. A hearing was conducted and the evidence was ultimately admitted. Held:

We find controlling Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638). Compare Simon v. State, 182 Ga. App. 210 (2) (355 SE2d 120). Appellant did not contest that he was the perpetrator of the prior DUI convictions, and the record establishes sufficient similarity even under the standards of Simon, supra. The State advised the court before the evidence was introduced that the similar transaction evidence was being offered to show appellant’s “common scheme, his driving under the influence in the same locations, in Whitfield County around the Holiday Inn and then on South 41 at Brickyard and at Threadmill, down in that same area”; it was also offered to show motive and a course of operation (driving modus operandi) of appellant. The State affirmatively stated on the record that the offenses were not being introduced merely to show that “since [appellant’s] done it one time he’s going to do it again the next time.” The court took the motion to exclude this evidence under advisement and subsequently entered a preliminary ruling (prior to allowing the evidence to go before the jury) that there existed sufficient similarity between the prior incidents and this incident. The court’s preliminary findings included that all incidents occurred on the same route and occurred either in late evening or early morning. It further included that one of the prior incidents involved the same vehicle (a Firebird) and in the other instance, appellant was driving a Ford Thunderbird; none of the prior incidents was unduly remote in time, the earliest DUI offense being only 22 months prior to the case at bar and the most recent being 16 months earlier. The court further elicited from appellant’s counsel a statement on the record agreeing that there exists no dispute concerning identity in either of the prior incidents. Additionally, the court stated on the record, without contradiction by appellant’s counsel, that appellant’s defense would involve the defendant’s motive in fleeing from the officers, and that the evidence of prior similar transactions also was relevant as to motive. The preliminary findings of the trial court were substantially supported not only by the State’s statement of expected testimony but by evidence of record presented in the presence of the jury. We find no error, prejudicial or otherwise, in the admission of this evidence.

Decided August 19, 1993

Reconsideration denied September 15, 1993

Waycaster, Corn & Morris, Marcus R. Morris, for appellant.

Jack O. Partain III, District Attorney, Kurt A. Kegel, Bert Poston, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1700.
    MARTIN v. SCHINDLEY.
    (435 SE2d 716)
   Birdsong, Presiding Judge.

Appellant Susan Martin, f/k/a Susan Schindley, appeals the order of the superior court granting appellee Alan R. Schindley’s motion to dismiss.

The parties who were formerly married are owners of certain real property. Incorporated in their final judgment and decree of divorce was a separation agreement executed May 5, 1989, purporting to provide for division of the real property with appellee remaining in residence. The agreement pertinently provides: “The equity will be divided between the parties as follows: The husband shall live in the marital homeplace for the next two years, and he will be required to pay all mortgage, tax, insurance, and other expenses associated with the homeplace. Two years from the date [of the agreement], the husband shall have the option to buy the interest of the wife for . . . $8,066.10. Exercise of said option should be by notice to the wife . . . within 60 days of the date the option period begins. ... If husband does not exercise said option, the wife shall have the option to buy the husband’s share [at an equity price formulae not here applicable]. ... If the husband decides to vacate the premises prior to two years from the date of this agreement, the wife shall have the option of moving in. . . . Should she move in, the roles reverse in the previous paragraphs. . . . When any contingency occurs which triggers payment of equity, the spouse to whom the equity is paid shall execute a warranty deed to the spouse remaining in the house. . . . This agreement shall be submitted to the Court in any divorce action pending between them for its approval, and the provisions hereof shall, if the Court approves, be incorporated in, merged with, and become a part thereof.” The agreement was silent regarding the effect of neither party exercising their option to buy, and the parties are in disagreement whether either of them exercised their option.

In July 1991, appellee filed a petition for bankruptcy in the Bankruptcy Court for the Northern District of Georgia. On Schedule B of the petition in bankruptcy, appellee scheduled a one-half interest in the property; on Schedule A, he scheduled a secured claim for the mortgage of the property to Standard Mortgage Company; on Schedule A-3, he listed appellant as an unsecured creditor for a “1989 property settlement” claim in the amount of $8,066.10. The 1989 property settlement did not reference the one-half interest or the debt to Standard Mortgage. Appellant declined to respond to the filing of the bankruptcy. Appellee reaffirmed the debt to Standard Mortgage and was subsequently discharged in bankruptcy; appellant did not appeal that discharge. Appellee claims that by duly filing the bankruptcy petition he gave appellant notice of his intent to remain in possession and to exercise his option.

Appellant thereafter filed a complaint for equitable partitioning of the property in superior court. The trial court granted appellee’s motion to dismiss, finding the agreement did not per se accomplish a division of the property, that neither party exercised an option in the manner required by the decree, and that the bankruptcy discharged the ($8,066.10) obligation under the final judgment and decree. Appellant enumerates three errors. Held:

Decided September 1, 1993

Reconsideration denied September 15, 1993

William I. Sykes, Jr., Susan D. Brown, for appellant.

1. Examination of the record in its totality, including appellant’s complaint, as amended, and all appellate briefs, we find that the substance and effect of appellant’s complaint for equitable partitioning of the property (see generally Cain v. Moore, 207 Ga. App. 726, 727 (2) (429 SE2d 135)) is to attack indirectly the discharge in bankruptcy as it pertains to appellant’s so-called equity claim for the subject property and, additionally, whether the $8,066.10 constituted a discharge-able debt. Appellant elected neither to participate in the bankruptcy proceeding nor to appeal timely the discharge in bankruptcy.

An appellate court will not reverse a correct ruling of the trial court regardless of the reason, if any, given therefor. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673). A party cannot do indirectly what the law does not allow to be done directly. Kingsmill Village Condo. Assn. v. Homebanc Fed. Sav. &c., 204 Ga. App. 900, 902 (2a) (420 SE2d 771). Moreover, a party cannot complain of a verdict, judgment, ruling, or order that his own legal strategy, trial procedure or conduct aided in causing. See Perryman v. Rosenbaum, 205 Ga. App. 784, 790 (423 SE2d 673).

2. Additionally, appellee contends that “appellant is guilty of laches for her failure to respond as a properly listed creditor in the bankruptcy. She cannot now, in an equitable [action], reopen the bankruptcy.” We agree.

A party, having a good defense in law who from negligence or legal strategy fails to set it up at the proper time, must accept the consequences of his own laches; he cannot go into equity to be relieved from the consequences of his own omission. See Peacock v. Walker, 213 Ga. 628, 630 (100 SE2d 575). “It is a hornbook concept that equity aids the vigilant, not he who slumbers on his rights.” Floyd S. Pike Elec. Contractors v. Williams, 207 Ga. App. 86, 89 (2d) (427 SE2d 67).

“We must interpret the law and apply it with an even hand; the appellate process affords us no latitude to make adjustments for the ill-earned good fortune of the lucky or the heart-rending misfortune of the unlucky.” Floyd S. Pike Elec., supra at 89 (2e).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.

Dodd & Kinsey, Jack E. Dodd, James B. Kinsey, for appellee.


author: Johnson, Judge.

text:
    A93A1316.
    EATON v. THE STATE.
    (435 SE2d 756)
   Johnson, Judge.

James Randall Eaton appeals from his conviction of possession of marijuana with intent to distribute.

1. Eaton contends that the trial court erred in denying his motion to suppress evidence of marijuana and other items seized from his property pursuant to a search warrant because the affidavit filed in support of the warrant did not establish probable cause. The affidavit was the only evidence presented to the magistrate, who issued the warrant on October 10, 1991. The attesting officer swore in his affidavit that in 1989 the police seized marijuana plants growing near Eaton’s residence and several days later the officer received a telephone call from an anonymous tipster claiming that the plants belonged to Eaton. In 1990 the officer received telephone calls from two more anonymous tipsters, one claiming to have seen marijuana plants growing near Eaton’s house and the other claiming to have witnessed Eaton in his house selling marijuana. The officer also stated in the affidavit that within the 72-hour period preceding October 10, 1991, he had received yet another call from an anonymous tipster who claimed to have seen marijuana being prepared for sale at Eaton’s residence sometime during that 72-hour period and to have seen marijuana in Eaton’s residence on another occasion.

“In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, we employ the totality of the circumstances analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by [the Georgia Supreme] [C]ourt in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984), with the admonition that prudence counsels that Gates be considered as the outer limit of probable cause. Under that analysis, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In addition, [the Georgia Supreme] [C]ourt has cautioned attesting officers and magistrates to make every effort to see that supporting affidavits reflect the maximum indication of reliability.” (Citations, punctuation and emphasis omitted.) Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992). Here, the attesting officer and the magistrate failed to make the effort required to see that the affidavit reflects the maximum indication of reliability. Based on the unreliable information in the affidavit, the magistrate did not have a substantial basis for concluding that marijuana and items used for growing and distributing it would be found on Eaton’s property.

The information concerning the tips in 1989 and 1990 is unreliable because it is stale. “[T]he time within which proof of probable cause must be considered by the magistrate must be of facts closely related to the time of the issuance of the warrant so as to justify such finding at that time.” (Emphasis in original.) Maxwell v. State, 127 Ga. App. 168, 170 (193 SE2d 14) (1972). “The question is one of reasonability: Is the lapse of time so long that it is no longer reasonable to believe that the same conditions described in the affidavit remain at the time a warrant is issued? [Cit.]” Tuzman v. State, 145 Ga. App. 761, 764 (2) (244 SE2d 882) (1978). The attesting officer failed to specify in his affidavit when the anonymous tips in 1989 and 1990 were received. Depending on the exact dates of the tips in 1990, they could have been received anywhere from nearly a year to two years before the warrant was issued in October 1991, while the 1989 tip could have been anywhere from nearly two years to three years old by the time of the warrant. These lapses of time are so long that it was no longer reasonable for the magistrate to believe that the same conditions described in these anonymous tips remained at the time she issued the warrant.

Moreover, all of the anonymous tips set forth in the affidavit are unreliable because the independent investigation done by the police in an effort to corroborate the details of the tips was insufficient; they corroborated only that Eaton lived where the tipsters said he did. “Our decisions applying the totality of circumstances analysis have consistently recognized the value of corroboration of details of an informant’s tip by independent police work. [Cit.]” (Punctuation omitted.) State v. Stephens, 252 Ga. 181, 183 (311 SE2d 823) (1984).

The affiant also failed to present any facts upon which the magistrate could have determined the veracity of any of the informants. “An informant’s veracity, reliability, and basis of knowledge are highly relevant in determining the value of his report and while these elements are not entirely separate and independent elements to be rigidly exacted in every case, they are closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is probable cause to believe that contraband or evidence is located in a particular place.” (Citations and punctuation omitted.) State v. White, 196 Ga. App. 685, 687 (396 SE2d 601) (1990); State v. Brown, 186 Ga. App. 155, 157-158 (2) (366 SE2d 816) (1988). The affidavit before this magistrate contained absolutely no information concerning the veracity of the informants who made tips in 1989 and 1990. As to the informant of October 1991, the attesting officer described him as a “concerned citizen” who had never previously given such information to the police, is mature, regularly employed and without a criminal record. At the motion to suppress hearing, however, the officer admitted that he did not know the identity of the informant and that the sole basis for this description was what the informant himself told the officer on the phone.

Decided September 15, 1993.

McArthur & McArthur, John J. McArthur, Jeffrey A. Rothman, for appellant.

Alan A. Cook, District Attorney, W. Kendall Wynne, Jr., Assistant District Attorney, for appellee.

“This court has always given the concerned citizen informer a preferred status insofar as testing the credibility of his information. However, before an anonymous tipster can be elevated to the status of concerned citizen, thereby gaining entitlement to the preferred status regarding credibility concomitant with that title, there must be placed before the magistrate facts from which it can be concluded that the anonymous tipster is, in fact, a concerned citizen.” (Citations and punctuation omitted.) State v. White, supra at 686-687. Here, no facts were placed before the magistrate from which she could have found that any of the informants were concerned citizens. The only evidence given to the magistrate was the affiant’s conclusory statement that the informant of October 1991 was a concerned citizen. That will not suffice. All of the informants are merely anonymous tipsters, not entitled to preferred status regarding the credibility of their information. The complete lack of information about all of the informants relegated the information they supplied to the status of rumor. Based on the affidavit presented, the magistrate did not have probable cause to issue the search warrant. The trial court therefore erred in denying Eaton’s motion to suppress.'

2. Because of our decision in Division 1 of this opinion, we need not address Eaton’s remaining enumerations of error.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.


text:
    A93A1612.
    LANDRUM v. THE STATE.
    (436 SE2d 40)
   Birdsong, Presiding Judge.

Ken Landrum appeals his conviction for child molestation and aggravated child molestation of three children who are his step-nephew, E. L., age thirteen, and his nieces, D. L., age ten, and A. L., age five. All incidents were alleged to have occurred between January 1, 1989 and July 30, 1990. Held:

1. The State’s motion to dismiss the appeal is denied.

2. Appellant contends the trial court erred by denying his plea in bar to the charges regarding A. L., because those acts were originally charged against appellant in juvenile court as acts committed while he was under the age of 17, and were not transferred to superior court. The juvenile court transferred to superior court the charges regarding E. L. upon finding that those acts occurred while appellant was under 17 years of age (OCGA § 15-11-2 (2) (A)) and were within the jurisdiction of the juvenile court and amenable to transfer.

Contrary to what appellant infers, the trial court did not transfer jurisdiction of the charges regarding the niece, D. L., as it found those acts occurred while appellant was 17 years old and not within juvenile court jurisdiction. OCGA §§ 15-11-2 (2) (A); 15-11-5 (a) (1). This means the charges regarding D. L. were under the superior court’s original jurisdiction. Nothing prevented the superior court from prosecuting appellant for those acts and appellant does not so contend. However, appellant urges that because the juvenile court “decline[d] to take any action” as to the charges regarding his other niece, A. L., jurisdiction of those charges was never transferred to the superior court.

The reason the juvenile court “decline[d] to take any action” as to the charges regarding A. L. was that there was no evidence presented as to when those acts were committed, so the juvenile court could not determine that those acts occurred when appellant was under 17 years of age. At the bottom of appellant’s contention that superior court could not have jurisdiction of the charges regarding A. L. unless they were transferred by juvenile court is his presumption that the acts were committed when'he was younger than 17 and that the juvenile court therefore had jurisdiction; or he assumes that if the juvenile court considers the matter it assumes some sort of jurisdiction of which it must divest itself by transferring the charges to superior court. However, the juvenile court’s finding that no evidence was presented that the acts were committed when appellant was younger than 17 amounts to a finding that the juvenile court did not have exclusive original jurisdiction. OCGA § 15-11-5 (a); see § 15-11-5 (d). Therefore, the superior court had original jurisdiction of those acts. It was not necessary to transfer the charges to that court, and the trial court did not err in denying appellant’s plea in bar to prosecution in that court for his acts against A. L.

It follows that the trial court did not err in reading to the jury the indictment as to A. L. The trial court’s corrective action limiting the jury’s consideration to acts committed after appellant’s seventeenth birthday cures any possible defect in prosecution of appellant for acts against A. L.

3. The trial court did not err in denying appellant’s pretrial request that he have 42 jurors in the array rather than 30 jurors as now provided by OCGA § 15-12-160, enacted Ga. Laws 1992, p. 1981, § 1. Nothing in this statute, as amended, indicates that it is intended to have retroactive application. Appellant has not persuaded us that the right to 12 additional jurors in the array is a substantive right; indeed, the legislature has determined that 30 jurors are sufficient to satisfy the criminal defendant’s due process and procedural rights. Moreover, this challenge to jury array was not in writing (OCGA § 15-12-162), so the trial court does not err in denying it. Terrell v. State, 201 Ga. App. 628, 629 (411 SE2d 779); King v. State, 201 Ga. App. 391, 392 (3) (411 SE2d 278).

4. The trial court did not commit reversible error in stating in the presence of the jury the law concerning the child hearsay exception as set forth in OCGA § 24-3-16. The trial court was merely explaining the basis of its ruling allowing certain testimony based on “indicia of reliability,” and did not overtly express an opinion on the credibility of the witness or the truth of the evidence thus admitted. See Wills v. State, 169 Ga. App. 260 (312 SE2d 367). Moreover, the court later instructed the jury not to consider any ruling made by the court in its verdict, and adequately instructed the jury in their role as judges of the credibility of witnesses.

5. Appellant contends the trial court erred in denying him a thorough and sifting cross-examination of a witness as to an investigation in another city, and in sustaining the State’s objection to cross-examination of the witness as to how and when E. L. first made his accusation against appellant. Appellant contends his questions pertained to the witness’ explanation for the delay in issuing warrants, but the record shows the questions were directed to reveal sexual activity of other persons than appellant or molestation of one of the victims by other persons, which were irrelevant to appellant’s guilt in this case. Chastain v. State, 180 Ga. App. 312 (349 SE2d 6), aff’d 257 Ga. 54 (354 SE2d 421). The trial court did not abuse its discretion in this matter. Moore v. State, 251 Ga. 499 (307 SE2d 476).

6. The trial court did not err in refusing the written request to charge that sexual battery is a lesser included offense of child molestation and aggravated child molestation. The requisite of sexual battery is mere “physical contact” with certain parts of the body (OCGA § 16-6-22.1), which is akin to simple battery. OCGA § 16-5-23. Even if sexual battery can, as a matter of fact, be included in child molestation, the trial court was not required to so charge the jury. According to the evidence appellant committed child molestation or he did nothing; he did not merely have “physical contact” with parts of the victims’ bodies rather than fondle them with intent to arouse or satisfy his sexual desires. See Brooks v. State, 197 Ga. App. 194 (397 SE2d 622). Nothing to the contrary is held in Green v. State, 206 Ga. App. 539 (426 SE2d 65).

Decided September 15, 1993.

Greene & Greene, Barry B. Greene, for appellant.

T. Joseph Campbell, District Attorney, D. Scott Smith, Assistant District Attorney, for appellee.

7. Appellant contends the trial court erred in allowing the victims’ father and stepfather to testify that he would not believe appellant’s testimony on oath. Appellant put his character in issue by offering his own witnesses to attest to his good character, thus opening the door for the State to submit evidence in rebuttal. Chadwick v. Smith, 227 Ga. 753 (182 SE2d 896). That appellant, questioning his own witnesses, did not go so far as to ask if they would believe him under oath does not prevent appellee from asking the same in rebuttal to appellant’s good character evidence.

8. We find the evidence sufficient to persuade the rational trier of fact of appellant’s guilt of the offenses charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). On appeal of a guilty verdict, the defendant no longer enjoys a presumption of innocence, for the jury has made its determination; we do not weigh the evidence again but adjudge it in favor of the jury’s finding. See Miller v. State, 201 Ga. App. 374, 375 (411 SE2d 112); Belcher v. State, 201 Ga. App. 139, 142 (410 SE2d 344). The jury has reconciled the evidence and has determined the truth of it; therefore, appellant is not entitled to a retrial merely because, in his estimation, it was a “close” case.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1490.
    ROBINSON v. THE STATE.
    (435 SE2d 718)
   Birdsong, Presiding Judge.

Kory Robinson, a/k/a Keyland Robertson, was tried before a jury and found guilty of armed robbery. He appeals from the judgment of conviction entered on the jury’s verdict of guilt. Held:

1. The attention of appellate counsel is drawn to Court of Appeals Rule 11 (e), limiting to 50 pages the length of a brief in criminal appeals, except upon written application directed to the clerk and authorized by the court.

2. Appellant’s first two enumerations of error fail to specify any error alleged to have been committed by the trial court. See OCGA § 5-6-51 (4). It is, however, evident that he complains of the order of the trial court overruling his motion for new trial on the ground of ineffective assistance of trial counsel. Where it is apparent from the notice of appeal, the record, the enumerations of error, or any combination of the foregoing, what errors are sought to be asserted upon appeal, the appeal shall be considered notwithstanding that the enumerations of error fail to enumerate clearly the errors sought to be reviewed. Contractors Mgt. Corp. v. McDowell-Kelley, 136 Ga. App. 116, 117 (1) (220 SE2d 473). The attention of appellate counsel is further drawn to Court of Appeals Rule 15 (a) (3), providing that the portion of the brief containing the argument and citation of authorities “shall include a concise statement of the applicable standard of review for each issue presented in the brief.”

3. At the motion for new trial, appellant argued that trial counsel failed to investigate the case, failed to prepare and present pretrial motions, failed to insist on pretrial evidentiary rulings, failed to interview and prepare witnesses, failed to interpose appropriate objections, and failed to present adequately researched requests to charge.

“ ‘ “When inadequate representation is alleged, the critical factual inquiry ordinarily relates to . . . whether the defendant had a defense which was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; [and] whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy.” (Cit.)’ [Cit.] Generally, ‘the burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below “an objective standard of reasonableness” and (2) there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Cit.)’ . . . [Cit.] The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. [Cit.]” Jackson v. State, 209 Ga. App. 53 (7) (432 SE2d 649) (1993).

As to each of these claims, “[w]e have reviewed the transcript of that hearing (at which trial counsel testified) [as well as the trial transcript] and find sufficient evidence to support the trial court’s conclusion that [appellant] failed to show ineffectiveness under the standards of Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). [Cit.]” Scott v. State, 263 Ga. 300 (2) (432 SE2d 107) (1993). The extent of pretrial investigation of the case and counsel’s consultation with the accused was subject to conflicting evidence, such that the trial court’s determination as to these alleged omissions is not clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641). Compare Jowers v. State, 260 Ga. 459, 462 (2) (396 SE2d 891). The failure to file pretrial motions demanding access to evidence is clearly harmless where the defense has obtained the informal cooperation of the prosecutor to review the State’s file. Thompson v. State, 203 Ga. App. 339 (2) (416 SE2d 755). The extent of cross-examination and decisions as to which witnesses to employ, whether to interpose certain objections, and which requests to charge to submit, are all within the realm of trial tactics and strategy, and usually provide no basis per se for a reversal of appellant’s conviction. Bridges v. State, 205 Ga. App. 664, 665 (2) (423 SE2d 293); Penaranda v. State, 203 Ga. App. 740, 742 (4) (417 SE2d 683). As to counsel’s failure to raise a “chain of custody” objection to the State’s introduction in evidence of the jacket identified by the victim as the one taken from him at gunpoint, we find no basis to conclude that trial counsel’s performance was inadequate. “Unlike more fungible articles, [this exhibit] could be identified upon mere observation; therefore, it was not necessary to trace [its] custody by requiring each custodian ... to testify. [Cits.]” Lord v. State, 134 Ga. App. 683, 684-685 (2) (215 SE2d 493). The fact that appellant and his present counsel now claim they would have conducted the trial differently does not establish ineffectiveness of trial counsel. Nolan v. State, 204 Ga. App. 170, 172 (3) (419 SE2d 72). As to the failure to request complete recordation of the proceedings, appellant has failed to show that, but for this omission, the result at trial would have been different. See Womack v. State, 260 Ga. 305, 306 (1) (393 SE2d 232). Alleged acts of professional misconduct in unrelated matters and cases fail to establish inadequacy or prejudice to this appellant arising out of this criminal prosecution. See Bryan v. Granade, 257 Ga. 219 (357 SE2d 92).

4. As a separate basis for establishing trial counsel’s ineffectiveness, appellant urged that trial counsel suborned perjury in violation of Disciplinary Standards 4 and 45, Rule 4-102 (d) of the State Bar of Georgia. It is alleged that counsel instructed appellant’s mother to swear falsely regarding a birth certificate indicating that her child was born under the name Keyland Denard Robertson, to avoid introduction of prior convictions obtained against appellant under that name.

At the hearing on appellant’s motion for new trial, trial counsel denied suborning perjured testimony. Appellant’s mother admitted to swearing falsely at trial. Accordingly, the trial court, as the finder of fact on such a motion, was authorized to disregard her testimony entirely. OCGA § 24-9-85 (b). Moreover, contrary to appellant’s assertion, the truth of an allegation that counsel violated ethical considerations, directory rules, and disciplinary standards would not automatically relieve appellant of the burden to show harm resulting from the alleged misconduct. See O’Melia v. State, 255 Ga. 476, 479 (4) (339 SE2d 586); Hudson v. State, 250 Ga. 479, 482 (1) (299 SE2d 531). See also Davis v. Findley, 262 Ga. 612 (422 SE2d 859). “Under the Strickland standard, breach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel.” Nix v. Whiteside, 475 U. S. 157, 165 (IIB) (106 SC 988, 89 LE2d 123). Compare Tarwater v. State, 259 Ga. 516, 518 (383 SE2d 883). The trial court did not err in this instance by overruling appellant’s motion for new trial on the basis of alleged ineffective assistance of counsel.

Decided September 1, 1993

Reconsideration denied September 16, 1993

Mary Erickson, Michael Mears, for appellant.

Lewis R. Slaton, District Attorney, Nancy A. Grace, John M. Turner, Jr., Assistant District Attorneys, for appellee.

5. The victim identified appellant as the man who robbed him of jewelry and clothing at gunpoint. This is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), to authorize a rational trier of fact reasonably to find proof of appellant’s guilt of armed robbery beyond a reasonable doubt. Jones v. State, 205 Ga. App. 711, 714 (5) (423 SE2d 393); Thomas v. State, 205 Ga. App. 329, 330 (1) (422 SE2d 54). Although appellant adduced evidence of alibi at his motion for new trial, this merely corroborated the original testimony of appellant’s mother that he had purchased in her presence a jacket similar to the one stolen from the victim. Notably, the efforts of appellate counsel still failed to adduce a receipt for the jacket allegedly purchased. This additional evidence fails to generate a reasonable doubt as to appellant’s guilt that was not otherwise presented to the jury at trial. Accordingly, appellant has failed to establish a necessary element of his challenge under the standard of Strickland v. Washington, supra. Stamey v. State, 194 Ga. App. 305, 306-307 (1c) (390 SE2d 409). It follows that appellant’s contention that trial counsel’s failure to move for a directed verdict deprived him of reasonably effective assistance of counsel also is without merit. Galloway v. State, 165 Ga. App. 536, 537 (3) (301 SE2d 894).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A1679.
    MARKS v. THE STATE.
    (435 SE2d 703)
   McMurray, Presiding Judge.

Defendant Marks appeals her conviction of the offense of voluntary manslaughter. Held:

1. The victim was defendant’s husband. Defendant relied upon a justification defense, and presented evidence that she had returned home one evening to find her husband intoxicated, belligerent, and argumentative. When defendant attempted to leave with the children, the husband removed them from her vehicle and took them into the house. Defendant followed them into the house and tried to get the younger child, a 13-month-old baby, from her husband. Every time defendant approached her husband, he would squeeze the baby, causing the child to scream. Defendant testified that she was concerned that her husband would kill the baby. The victim was killed by a gun shot wound to the head.

Defendant enumerates as error the trial court’s refusal to permit her to introduce evidence concerning prior specific acts of violence committed by the victim against the family dog. A long-standing rule excluding evidence of a prior violent act by a victim against a third party was abandoned in Chandler v. State, 261 Ga. 402, 407 (3) (405 SE2d 669), and in its place the reasoning stated in the special concurrence of Justice Weltner in Lolley v. State, 259 Ga. 605, 607 (385 SE2d 285) was adopted for subsequent cases. Under the new rule, evidence of specific acts of violence by a victim against third parties is admissible where the defendant claims justification and certain advance notice of defendant’s intent to use such evidence is provided to the State.

Defendant made an offer of proof relating two incidents in which a neighbor observed the husband extend particularly brutal treatment to the dog, including dragging and kicking the animal, for no substantial reason. It is clear from the colloquy at trial, that the trial court’s analysis focused upon questioning the relevance of the evidence since the neighbor had not related these incidents to defendant. However, as pointed out by Justice Weltner, in Divisions (3) (b) (ii) and (3) (c) of the Lolley special concurrence, even where the defendant has no prior knowledge of -the decedent, evidence of his violent nature through specific acts of violence against third persons is relevant to establishing the credibility of the account of an incident related by a defendant. The trial court was not correct in concluding that defendant’s lack of knowledge of the previous incidents precluded the introduction of the evidence at issue.

Since the defendant did present a justification defense and did provide the appropriate notice to the State, the remaining issue is whether the rule adopted in Chandler is applicable when the victim’s prior act of violence is directed toward a family pet rather than a person. With all due deference to the many animal rights advocates who would argue that a man’s behavior towards his dog is a remarkably adept indicator of his character, we decline to extend the holding in Chandler beyond the circumstances of that case, that is, to the victim’s prior acts of violence towards a human person.

However, even if the victim’s behavior toward the dog is assumed to be illustrative of issues on trial, we find no harm in the exclusion of that evidence since it was, at most, cumulative of defendant’s evidence showing the victim’s violent behavior toward defendant and her children. It is highly unlikely that such evidence would have altered the verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869); Thompson v. State, 201 Ga. App. 646, 647 (3), 648 (411 SE2d 886); Washington v. State, 194 Ga. App. 756, 758 (4) (391 SE2d 718).

2. A Jackson-Denno hearing was held to determine the admissibility of a custodial statement made by defendant. See Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908). In her second enumeration of error, defendant challenges the factual conclusions reached by the trial court in determining that defendant’s statement was admissible. Specifically, defendant contends that the evidence shows that she was distraught at the time the statement was made and that the written statement she signed did not accurately reflect her remarks to police because she was not afforded an opportunity to examine it before signing. “In this type of situation, where the testimonial evidence concerning the factual circumstances of a statement is in direct conflict, the trial court is the trier of fact, whose resolution of factual issues such as the credibility of witnesses shall not be overturned unless clearly erroneous. Mathews v. State, 183 Ga. App. 224 (358 SE2d 639) (1987).” Jordan v. State, 187 Ga. App. 687, 689 (1) (371 SE2d 245). As the trial court’s ruling was not clearly erroneous, this enumeration of error is without merit.

3. Defendant’s next enumeration of error complains of the admission into evidence of five photographs and a videotape of the victim’s body. Even if somewhat repetitive, there was no error in the admission of this evidence which was relevant to the issues at trial. Mooney v. State, 243 Ga. 373, 394 (6) (254 SE2d 337); Florence v. State, 243 Ga. 738, 741 (4) (256 SE2d 467).

4. Defendant also contends that the trial court erred in permitting certain items to be sent out to the jurors for their use during deliberations. Insofar as defendant complains that the indictment should not have been sent out • since it included the names of the grand jurors, we find that this contention has been previously rejected in Byrd v. State, 186 Ga. App. 446, 451 (5) (367 SE2d 300).

Additionally, defendant argues that a gun and photographs of the body should not have been sent out since they were unnecessarily duplicative and prejudicial. This issue has already been addressed as to the photographs in Division 3 and the same reasoning is applicable to admission of the gun. This enumeration of error is without merit.

5. Finally, defendant contends that the trial court erred in overruling her objection to a jury charge on malice murder. We need not address whether the evidence authorized such a charge, since defendant was acquitted of murder and convicted of a lesser crime, voluntary manslaughter, in which malice is not an issue. Any error in the submission of the murder charge to the jury or the wording of the charge on malice murder was harmless. White v. State, 179 Ga. App. 276, 277 (2) (346 SE2d 91); Bennett v. State, 122 Ga. App. 604, 605 (4), 606 (178 SE2d 300).

Decided August 26, 1993

Reconsideration denied September 16, 1993

Robert L. Waller III, for appellant.

Daniel J. Porter, District Attorney, Phil Wiley, Pamela D. South, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A1715.
    NORFOLK SOUTHERN RAILWAY COMPANY et al. v. SPENCE.
    (435 SE2d 680)
   McMurray, Presiding Judge.

Plaintiff Spence’s amended complaint states claims under the Federal Employers’ Liability Act, 45 USC §§ 51-60 (“FELA”), for negligent infliction of emotional distress and for intentional infliction of emotional distress, and under the Hours of Service Act, 45 USCA § 61 et seq., for requiring plaintiff to work two jobs for periods of time in excess of the maximum hours permitted. Defendants Norfolk Southern Corporation, Norfolk Southern Railway Company and Central of Georgia Railway Company moved for summary judgment. A summary judgment was granted to defendant Central of Georgia Railway Company which had contended that plaintiff was not its employee while the motion for summary judgment of the remaining two defendants was denied. This appeal from the denial of their motion for summary judgment by defendants Norfolk Southern Corporation and Norfolk Southern Railway Company follows the grant of their application for interlocutory appeal. Held:

We granted the application for interlocutory appeal in order to address contentions that the infliction of emotional distress claims are not viable FELA claims and that, if they are, plaintiff has failed to begin his action within the statute of limitation. However, under guidance from our recent decision in Bowers v. Estep, 204 Ga. App. 615, 617 (2) (420 SE2d 336), we find that we need not reach these issues as this appeal may properly be decided upon the same basis as our earlier decision, that is, without deciding whether a plaintiff may assert a claim under FELA for negligent or intentional infliction of emotional distress, we hold that even if we allowed such a claim plaintiff Spence has failed to assert a claim that would entitle him to relief.

“Looking to common law developments for guidance, Urie v. Thompson, 337 U. S. 163, 174 (69 SC 1018, 93 LE 1282) (1949), we recognize that, as the Court noted in [Atchison &c. R. Co. v. Buell, 480 U. S. 557, 568-569 (107 SC 1410, 94 LE2d 563)], most states recognize the tort of intentional infliction of emotional distress, but ‘they vary in the degree of intent required to establish liability, and the level of physical manifestation of the emotional injury required to support recovery. Moreover, some States consider the context and the relationship between the parties significant, placing special emphasis on the workplace.’ (Footnotes omitted.) Id. The description of the tort given in the Restatement (Second) of Torts § 46 has been adopted by many jurisdictions and has been characterized as the general rule prevailing in the United States. Buell, supra at 568 n. 16. The Restatement, supra, provides that ‘one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress,’ id. at 71, and notes that ‘the cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ Id. at 72-73 (comment d). See [Netto v. Amtrak, 863 F2d 1210, 1214-1215].” Bowers v. Estep, 204 Ga. App. 615, 618 (2), supra.

The substance of plaintiff Spence’s allegations complain of the amount of work he was required to perform. These allegations are supported by evidence as to both the number and stressful nature of the tasks he was assigned, and as to his work schedule which included lengthy periods with no days off and workdays of 12 hours or longer without adequate breaks for meals and other personal needs. However oppressive this regimen may have been to plaintiff Spence, this was not that level of egregious or outrageous behavior which “justifiably results in that severe fright, humiliation, embarrassment, or outrage which no reasonable person is expected to endure. [Cits.]” Kornegay v. Mundy, 190 Ga. App. 433, 434 (379 SE2d 14). As a matter of law, the conduct at issue in the case sub judice does not support liability for negligent or intentional infliction of emotional distress. Bowers v. Estep, 204 Ga. App. 615, 617 (2), 618, supra. See also Visconti v. Consolidated Rail Corp., 801 FSupp. 1200, 1207 (2) (S.D.N.Y. 1992).

Decided August 19, 1993

Reconsideration denied September 16, 1993

Neely & Player, Edgar A. Neely, Jr., William C. Thompson, Laura A. Shaw, for appellants.

Agnew, Schlam & Bennett, Paul R. Bennett, Leroy Langston, for appellee.

Furthermore, insofar as plaintiff’s claim is predicated on 45 USCA § 61 et seq., it is not well founded. No private cause of action arises from violation of these statutory provisions. 45 USCA § 61 et seq.; United Transp. Union v. Lewis, 699 F2d 1109, 1113 (II) (11th Cir. Ala. 1983). The state court erred in denying the motion for summary judgment submitted by defendants Norfolk Southern Corporation and Norfolk Southern Railway Company.

Judgment reversed.

Johnson and Blackburn, JJ., concur.