text:
    A92A0079.
    ADDIS v. THE STATE.
    (416 SE2d 837)
   Sognier, Chief Judge.

Jerry Addis was convicted of burglary and he appeals, enumerating the general grounds.

At appellant’s bench trial, Terrón Bonner testified that he was walking home at approximately 10:00 p.m. on the evening of February 27, 1990 when he observed a man, later identified as appellant, kicking the door of a church. Bonner called the police and, shortly thereafter, flagged down a passing patrol car occupied by Atlanta police officers Robert Wheeler and William Hanrahan. The officers testified they noticed that boards had been pried loose from a back window and heard loud noises coming from inside the church. They did not enter the building but identified themselves as police officers and ordered whoever was inside to come out. Appellant exited the church through the window in response to the police officers’ order and was arrested. The Rev. Julia Dunham, the church’s pastor, testified that the church had been locked on the evening in question and that appellant was not a member of the church and was not authorized to be in the church on that evening. She testified that there had been several burglaries at the church and that inside the church were silver candlesticks, a brass incense burner, and several other valuable items. Appellant testified that he had come onto the church grounds to relieve himself behind a tree, but denied entering the church.

OCGA § 16-7-1 provides, in pertinent part, that “[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or . . . any other building . . . .” The indictment charged appellant with entering the church “with intent to commit a theft therein.” On appeal, appellant concedes that there was evidence of an illegal entry, but contends the State failed to prove the essential element of intent to commit theft as alleged in the indictment. We do not agree.

Whether appellant entered the church with the intent to commit theft was a matter for the factfinder’s decision, based on the facts and circumstances proved at trial. Bradshaw v. State, 172 Ga. App. 330, 332 (323 SE2d 253) (1984). “The presence of valuables inside the premises can support an inference of intent to steal, particularly when no other motive is apparent.” (Citations and punctuation omitted.) McNair v. State, 190 Ga. App. 412, 413 (1) (379 SE2d 424) (1989). We do not agree with appellant that no inference of intent to commit theft could be made because nothing was taken from the church and it is possible that he entered the church to sleep there. The fact that appellant may have failed to accomplish his intended purpose does not render a finding of burglary improper, see Poole v. State, 130 Ga. App. 603, 605 (2) (203 SE2d 886) (1974) and appellant’s testimony that he lived with his parents and was on his way to his girl friend’s home renders it improbable that he entered the church to sleep. Accordingly, as no other motive was apparent, given Pastor Dunham’s testimony regarding the presence of valuables we find that the trial court, as the finder of fact, was authorized to infer intent to commit theft. Bradshaw, supra. We find the evidence sufficient to have authorized appellant’s conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Bradshaw, supra at 332-333.

Decided March 9, 1992.

J. Robert Joiner, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Charles W. Smegal, Carl P. Greenberg, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A92A0852.
    MURPHY v. QUINTER.
    (417 SE2d 223)
   Sognier, Chief Judge.

After Sharlene Quinter obtained a judgment against him in magistrate court, Brant Murphy appealed to the State Court of Cobb County. Judgment in favor of Quinter was entered in that court on November 8, 1991. The record does not reflect any timely filed motion for new trial. See OCGA § 5-5-40 (a). Murphy filed his notice of a direct appeal to this court on December 16, 1991.

Pretermitting the application of OCGA § 5-6-35 (a) (11), the record establishes that Murphy’s notice of appeal was not filed within 30 days after entry of the judgment from which he sought to appeal and that he made no application for an extension of time for filing the notice. Therefore, Murphy has not followed the requirements set forth in OCGA § 5-6-38 (a) and because this court does not have jurisdiction over this appeal, see Bowen v. Clayton County Hosp. Auth., 160 Ga. App. 809, 810 (288 SE2d 232) (1982), Murphy’s appeal is dismissed.

Decided March 9, 1992.

Brant Murphy, pro se.

Stanley W. Levitt, for appellee.

Judgment dismissed.

McMurray, P. J., and Cooper, J., concur.


author: Judge Arnold Shulman.

text:
    A91A1472, A91A1572.
    RICE v. CROPSEY (two cases).
    (416 SE2d 786)
   Judge Arnold Shulman.

Acting in her capacity as guardian of the person and property of her aunt, Mary Ivey King Hollis, the appellant, Barbara Rice, brought suit against the appellee, Sandra Jones Cropsey, seeking to recover damages for various acts of misconduct allegedly committed by Cropsey both in her dealings with the appellant’s aunt and in connection with her discharge of her duties as executrix of the estate of the aunt’s deceased daughter, the aunt being the latter’s sole heir. The appellant also sought an injunction against the appellee to prevent her “from creating discord between [the appellant] and her ward.”

The appellee denied the allegations of the complaint and counterclaimed for damages for abusive litigation. The case was tried before a jury, which returned a verdict in favor of the appellee on both claims, awarding her attorney fees in the amount of $15,000 and punitive damages in the amount of $125,000, with the stipulation that these sums were to be “paid per [the appellant] individually.” The trial judge entered judgment accordingly, following which the appellant, acting in her representative capacity as her aunt’s guardian, filed a motion for new trial. Acting in her individual capacity, she also filed a motion to set aside the judgment, contending that the court lacked jurisdiction over her in her individual capacity because she had not initiated the litigation in that capacity and had never been added as a party in that capacity. The trial court entered an order denying both motions. Acting in her representative capacity, the appellant then filed an appeal to the Supreme Court from the denial of the motion for new trial; and, acting in her individual capacity, she applied to this court for discretionary review of the denial of her motion to set aside. We granted the application for discretionary appeal, and the Supreme Court transferred to us the appeal from the denial of the motion for new trial.

1. Although the appellee did not specifically state in her abusive litigation counterclaim that she was seeking to hold the appellant personally liable on that claim, it was obvious that she was seeking to do so, inasmuch as the counterclaim was based on the appellant’s own tortious conduct and therefore could not have resulted in a judgment against her ward’s estate. Cf. Hundley v. Pendleton, 9 Ga. App. 268 (70 SE 1115) (1911) (holding that, “[a]s a general rule, the estate of a decedent is not liable for tortious acts of an administrator or executor, committed in the course of the administration of the estate.”) Furthermore, the pretrial order which was entered in the case specified that the counterclaim was being pursued against the appellant in her individual capacity; and, as noted by the trial court, the appellant “raised no issue of non-joinder and did not object in the pretrial order to the prayer for relief against [her] individually.”

“ ‘A pretrial order “. . . when entered, controls the subsequent course of the action unless modified at the trial to prevent manifest injustice.” OCGA § 9-11-16 (b). “ Tf a claim or issue is omitted from the order, it is waived.’ ” [Cit.]’ [Cit.]” Long v. Marion, 257 Ga. 431, 433 (360 SE2d 255) (1987). While the appellant complains that she had a constitutional right to service of process in her individual capacity, she was obviously no stranger to the action, having initiated it; and merely changing the capacity in which a party is involved in a lawsuit does not necessarily equate to adding a new party. It has been held, for example, that “[a] suit against one described as X, administratrix of the estate of Y, deceased, is a suit against X individually, [cit.] the additional words being merely descriptio personae." Horn v. Wright, 157 Ga. App. 408, 409 (278 SE2d 66) (1981).

The defenses of lack of personal jurisdiction, insufficient service of process, and improper venue may all be waived by failure to assert them in a responsive pleading. See OCGA § 9-11-12 (b). It follows that they may also be waived if they are omitted, without objection, from the pre-trial order. See Long v. Marion, supra; Georgia Power Co. v. O’Bryant, 169 Ga. App. 491 (313 SE2d 709) (1984). Under the circumstances, we hold that the trial court did not err in entering judgment against the appellant in her personal capacity for the abusive litigation damages.

2. The award of punitive damages must, however, be reversed. The appellant filed her complaint in December of 1988, and the appellee filed her answer and counterclaim in February of 1989. Thus, the counterclaim was governed by Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), rather than by OCGA § 51-7-80 et seq., which took effect on April 3, 1989. See OCGA § 51-7-85. In an abusive litigation claim governed lay Yost v. Torok, “[p]unitive damages are . . . excluded, as the tort itself is designed as a deterrent.” Id. at 95, fn. 3. The judgment of the trial court is accordingly reversed with direction that judgment be entered against the appellant only for that portion of the jury’s award which did not constitute punitive damages, i.e., $15,000.

3. The contentions advanced by the appellant in the appeal which she filed in her representative capacity from the denial of her motion for new trial are extremely difficult to decipher, inasmuch as this appeal consists of 50 separate enumerations of error which have been grouped together in seemingly haphazard fashion for the purpose of argument. Such a practice is, of course, violative of Rule 15 (c) (1) of this court, which requires that “[t]he sequence of argument or arguments . . . shall follow generally the order of the enumerations of errors, and shall be numbered correspondingly.” Moreover, the argument presented in support of these enumerations of error often consists merely of one or more legal citations followed by a conclusory statement to the effect that the alleged errors were harmful, with no explanation as to why they were harmful or why the rulings at issue constituted an abuse of discretion by the trial court. Furthermore, as was the case in Wilson v. Malcolm T. Gilliland, Inc., 198 Ga. App. 616 (402 SE2d 291) (1991), the appellant’s brief does not include a succinct and accurate statement of facts as required by Court of Appeals Rule 15 (a) (1), “with the result that we have had to rely on the briefs filed by the appellee[] and the [judgment] entered by the trial court for an overview of the case.” Id. at 618 (1).

With respect to the appellant’s contention that the verdict was contrary to the evidence, suffice it to say that the jury was authorized to conclude from the evidence presented at trial that the appellee had, out of the goodness of her heart and without monetary incentive, worked diligently and selflessly for several years to care for the appellant’s aunt and her daughter, while the appellant’s interest in her aunt’s affairs did not manifest itself until after she received notice, following the daughter’s death, that the aunt had substantial financial assets. The jury was additionally authorized to conclude from the evidence that the appellee had not been guilty of any misconduct either in her dealings with the aunt or in the administration of the aunt’s daughter’s estate. To the extent that the remaining enumerations of error asserted by the appellant in her appeal from the denial of the motion for new trial present anything for review, we hold that they establish no ground for reversal.

Judgment reversed with direction in Case No. A91A1472. Judgment affirmed in Case No. A91A1572.

Carley, P. J., and Beasley, J., concur.

Decided February 24, 1992

Reconsideration denied March 10, 1992

Susan M. Hartwig, Kathleen Lillis, Vernon W. Duncan, for appellant.

Beck, Owen & Murray, Richard L. Collier, for appellee.


author: Pope, Judge.

text:
    A91A1720.
    MOSLEY v. THE STATE.
    (416 SE2d 736)
   Pope, Judge.

Appellant/defendant J. W. Mosley appeals from his conviction for selling cocaine. Construing the evidence in the light most favorable to support the jury’s verdict, the evidence shows that an undercover drug agent approached defendant and sought to purchase $20 worth of cocaine. The defendant walked behind a building and soon returned and told the agent “he . . . [did not] have a twenty but he had a fifty.” The agent told him that he would take it. Defendant again went behind a building and emerged with a chunk of crack cocaine, which he sold to the agent for $50.

1. Defendant urges us to find that the trial court erred in admitting evidence concerning a prior similar transaction. “Evidence of similar crimes is admissible [when] its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact. However, before it is admissible, two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime’. Second, there must be sufficient similarity or connection between the independent crime and the offense charged.” (Citations, emphasis and punctuation omitted.) Hall v. State, 198 Ga. App. 434 (1) (401 SE2d 623) (1991). The similar transaction evidence complained of involved the defendant’s conviction for the sale of cocaine to an undercover drug agent. That evidence meets the two conditions for the admittance of similar transaction evidence.

2. The defendant also raises a Batson challenge to the jury selection process in this case. Defendant is black. Two black jurors were chosen for the defendant’s jury panel; one of the two served as an alternate. In Aldridge v. State, 258 Ga. 75 (4) (365 SE2d 111) (1988), the Georgia Supreme Court held “the defendant in Batson type cases has the burden to complete the record with information revealing the racial composition of the panel from which the jury was selected, the racial breakdown of the strikes of both parties, and the racial composition of the resulting jury.” Id. at 77.

The record before us is not sufficient to determine if defendant has made a prima facie showing of Batson error. Moreover, and pretermitting the question of whether the defendant has presented a prima facie case, the record supports the trial court’s findings that the State used its peremptory challenges to remove jurors for legitimate, racially-neutral reasons. Lee v. State, 258 Ga. 481 (2) (371 SE2d 389) (1988). The prosecutor used all ten of his strikes, seven to strike black potential jurors and three to strike white potential jurors. The trial court asked the prosecutor to articulate racially neutral reasons for his strikes, a procedure approved by the Georgia Supreme Court in Williams v. State, 258 Ga. 80, 81, n. 2 (365 SE2d 408) (1988). As he was stating the reasons he struck certain jurors the prosecutor identified two of the people struck as white males. With regard to the other jurors, the prosecutor articulated such racially neutral reasons as jurors stating that they knew the defendant or that a member of their family had a problem with crack cocaine. There was only one juror that the prosecutor did not offer a reason for why he was struck. The record does not reflect and the defendant has made no showing of the race of that potential juror. Accordingly, we find this enumeration of error to be without merit. See Hayes v. State, 261 Ga. 439, 441-442 (1) (405 SE2d 660) (1991).

3. Defendant argues that the trial court erred in allowing testimony that defendant’s photograph was among those kept by the local police as known drug dealers. The record reveals that this testimony was first elicited by defendant’s counsel during cross-examination of the undercover agent to whom the defendant allegedly sold drugs. The defendant did not object to that testimony. “A party cannot complain of error that his own conduct aided in causing. [Cit.]” Jones v. State, 198 Ga. App. 881, 883 (403 SE2d 867) (1991).

4. Defendant contends that the trial judge erred in concluding it had no discretion to probate, suspend or defer a portion of the mandatory life sentence imposed on defendant in this case. OCGA § 16-13-30 (b) makes it “unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.” (Emphasis supplied.) OCGA § 16-13-30 (d) further provides “any person who violates subsection (b) of this Code section with respect to a controlled substance in Schedule I or a narcotic drug in Schedule II shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 30 years. Upon conviction of a second or subsequent offense, he shall be imprisoned for life.” (Emphasis supplied.)

Defendant concedes that OCGA § 16-13-30 (d) makes a life sentence mandatory when a person has twice been convicted of selling cocaine, like defendant. Defendant further argues, however, that the statute does not contain language that limits the trial judge’s ability to suspend, probate or defer a part of the sentence, and therefore the trial court erroneously concluded that it could not alter defendant’s sentence. As the State correctly asserts, this statute must be read with OCGA § 17-10-1, which generally allows trial judges to suspend or probate sentences. That statute does not apply to sentences for conviction of certain crimes in which the legislature has dictated that life imprisonment must be imposed. Thus, the trial court correctly held that it lacked discretion to suspend, probate or defer a portion of defendant’s life sentence. Compare State v. Baldwin, 167 Ga. App. 737 (4) (307 SE2d 679) (1983) with Knight v. State, 243 Ga. 770 (2) (257 SE2d 182) (1979).

Decided January 15, 1992

Reconsideration denied March 10, 1992

Edwards & Middleton, Brenda C. Youmas, for appellant.

Joseph H. Briley, District Attorney, Alberto C. Martinez, Jr., Assistant District Attorney, for appellee.

5. Defendant argues that the mandatory sentencing requirement of OCGA § 16-13-30 (d) is so unreasonable, arbitrary and capricious as to be violative of the due process clause of the United States Constitution. The Georgia Supreme Court has twice upheld this statute against similar constitutional challenges. Tillman v. State, 260 Ga. 801 (400 SE2d 632) (1991); Grant v. State, 258 Ga. 299 (2) (368 SE2d 737) (1988).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A91A2075.
    LOWE v. THE STATE.
    (416 SE2d 750)
   Andrews, Judge.

Lowe was indicted for armed robbery along with two co-defendants and appeals his conviction. Evidence showed that Lowe and several accomplices robbed the victim at gunpoint, taking the victim’s money and automobile.

While Lowe and co-defendant Delk were both incarcerated prior to trial, Delk received an unsigned letter with a return address from the jail where Lowe was being held. The letter personally and affectionately refers to Delk, advises her to have her lawyer withdraw a statement she had previously given to the police relating to the robbery, describes a different version of events exonerating the anonymous author of responsibility for the robbery, and appears to encourage Delk to adopt the version of events described in the letter.

To prove Lowe wrote the letter, the State obtained a warrant to search his prison cell, where he was being detained prior to trial, for “papers and documents containing the handwriting of the [defendant].” Pursuant to the warrant executed on February 6, 1991, the State seized several papers containing Lowe’s handwriting, and compared the handwriting on the seized papers to the letter. Based on the comparison, the State introduced the letter at trial along with expert testimony to prove Lowe wrote it. The seized papers were not introduced into evidence. On January 17, 1991, Lowe filed a request pursuant to OCGA § 17-7-210 that he be provided a copy of any statement given by him while in police custody. The State provided Lowe with a copy of the letter and the seized papers on the day the trial commenced on March 11, 1991.

Three of Lowe’s four enumerations of error have to do with the State’s introduction into evidence of the unsigned letter received by co-defendant Delk and expert testimony linking the letter to Lowe. He argues on appeal: (1) that the trial court erred in not granting his motion to suppress the fruits of the search which enabled the State to show he wrote the letter; (2) and (3) that pursuant to the State’s failure to timely comply with his OCGA § 17-7-210 request, the trial court should have barred admission of the letter and the expert testimony based on the seized handwriting samples; and (4) that the evidence was insufficient.

1. There was no error in the denial of Lowe’s motion to suppress. In the motion Lowe claims that the warrant was obtained without probable cause, the items sought in the warrant were not particularly stated, and the seized items were protected as “private papers” under OCGA § 17-5-21 (a) (5).

Contrary to the State’s contentions, we conclude that a warrant for the search was required. Although in Hudson v. Palmer, 468 U. S. 517 (104 SC 3194, 82 LE2d 393) (1984), the Supreme Court held in a 5-4 decision that a prisoner has no reasonable expectation of privacy in his prison cell that enables him to invoke the protection of the Fourth Amendment, that decision was rendered in the context of a “shakedown” search conducted by prison authorities, and was largely based on the conclusion that a prisoner’s expectation of privacy must always yield to “the paramount interest in institutional security.” Id. at 528. The purpose of this prosecutor instituted search was not to maintain security and discipline in the prison, but to further the State’s effort to obtain a conviction against a pre-trial detainee. We will not apply the rationale of Hudson to deprive the defendant of all Fourth Amendment protection where no institutional need is served by the search. Accord United States v. Cohen, 796 F2d 20 (2d Cir. 1986) (pre-trial detainee “retains an expectation of privacy within his cell sufficient to challenge the investigatory search ordered by the prosecutor” for the purpose of gathering evidence to bolster the State’s pending case); State v. Neely, 462 NW2d 105, 112 (Neb. 1990); see also LaFave, Search & Seizure, Vol. 4, § 10.9 (2d ed. 1987).

The affidavit given by an investigating officer in support of the application for a search warrant describes the reported armed robbery including the involvement of Delk and three accomplices, states that Delk has given a statement implicating Lowe and another co-defendant as two of the accomplices, and describes the letter received by Delk, including the suggestions that she withdraw her statement and adopt a proposed version of events related to the robbery. The affidavit indicates that the letter is unsigned so that it is necessary to determine who wrote it by comparing the letter to known handwriting samples of Lowe and the other co-defendant implicated by Delk.

Based on the application a warrant was issued to search Lowe’s jail cell for “papers and documents containing the handwriting of the [defendant],” and alleging that the papers and documents were in violation of OCGA § 16-8-41 (armed robbery) and OCGA § 16-10-72 (subornation of perjury). Given all the circumstances set forth in the affidavit, a fair probability was shown to believe that one of Delk’s two co-defendants wrote the letter, and that a search of Lowe’s jail cell would produce evidence of his handwriting for purposes of comparison. In determining whether probable cause exists under the totality of the circumstances, the task of the magistrate is to make a practical, common sense decision that there is a fair probability the items sought will be found in a particular place, and the duty of the reviewing court is to ensure that there was a substantial basis for the determination. Mize v. State, 173 Ga. App. 327, 328 (326 SE2d 782) (1985). Doubtful cases are resolved in favor of the preference for warrants. Mincey v. State, 180 Ga. App. 898, 900 (350 SE2d 852) (1986). Under these standards, there was a sufficient probable cause for issuance of the warrant. Moreover, the handwriting samples sought in the warrant were described with sufficient particularity where, because of their nature, only a generic description was possible. Dugan v. State, 130 Ga. App. 527, 533-534 (203 SE2d 722) (1974).

The seizure of papers to obtain a sample of Lowe’s handwriting did not violate the “private papers” exception to the permissible scope of search warrants under OCGA § 17-5-21. A search warrant may issue for the seizure of “[a]ny item, substance, object, thing, or matter, other than-the private papers of any person, which is tangible evidence of the commission of the crime for which probable cause is shown.” OCGA § 17-5-21 (a) (5). Even if the documents were Lowe’s private papers, they were seized only for the purpose of comparing the handwriting style contained therein with the letter to Delk. The content of the seized papers was not introduced at trial or otherwise used by the State to advance prosecution of Lowe. Although a defendant may not be compelled to give a handwriting sample, a defendant has no reasonable expectation of privacy in existing examples of the physical characteristics and style of his handwriting, nor does the State’s use of such handwriting sample constitute a violation of a defendant’s Fifth Amendment protection against self-incrimination. Reeves v. State, 139 Ga. App. 214, 215 (228 SE2d 201) (1976); Hudson v. State, 188 Ga. App. 684 (374 SE2d 212) (1988); State v. Armstead, 152 Ga. App. 56 (262 SE2d 233) (1979); Guy v. State, 138 Ga. App. 11 (225 SE2d 492) (1976). The creation of a “private papers” exception by the Legislature pursuant to the Searches & Seizures Act, Ga. L. 1966, pp. 567, 568 (OCGA § 17-5-21) was clearly intended to promote a privacy interest in the contents of documents which were not actual instrumentalities of a crime. See Tuzman v. State, 145 Ga. App. 761, 766 (244 SE2d 882) (1978). The statute must be construed in light of the Georgia Constitutional provisions granting immunity from unreasonable searches and seizures which are substantially the same as the Fourth Amendment provisions of the United States Constitution. Pruitt v. State, 123 Ga. App. 659, 661-664 (182 SE2d 142) (1971). The principal purpose of these constitutional provisions is to protect privacy not property interests. Warden v. Hayden, 387 U. S. 294 (87 SC 1642, 18 LE2d 782) (1967). Since no privacy interest exists in the physical characteristics of one’s handwriting, and the documents were seized not for their content but only for the purpose of obtaining a handwriting sample, there was no violation of the privacy interests undergirding the statute.

2. Lowe claims that because the State failed to timely provide him with a copy of the letter to Delk pursuant to his OCGA § 17-7-210 request, the trial court erred by ruling the letter was admissible. It is undisputed that Lowe’s attorney obtained a copy of the letter over a month prior to trial from counsel for one of the co-defendants. Under these circumstances, Lowe can demonstrate no harm, and thus no cause for reversal. Tyson v. State, 165 Ga. App. 22-23 (299 SE2d 69) (1983).

3. Lowe further contends that because the State failed to timely provide him with copies of the samples pursuant to OCGA § 17-7-210, the trial court erroneously allowed the State to use the seized handwriting samples. The seized papers containing Lowe’s handwriting were not introduced into evidence. Only the expert testimony comparing the handwriting on the seized documents was introduced. Nevertheless, Lowe contends that the seized papers were his in-custody statements and were used by the prosecution in the sense that they provided the comparison basis for the expert testimony. OCGA § 17-7-210 “protects an accused from the introduction at trial of incriminating or inculpatory statements made by him while in custody unless he has been furnished with written copies of these statements prior to trial.” Wallin v. State, 248 Ga. 29, 32 (279 SE2d 687) (1981). Documents merely demonstrating the physical characteristics and style of the defendant’s handwriting do not qualify as such statements within the meaning of OCGA § 17-7-210.

4. As to Lowe’s contention that the evidence was insufficient, the victim and an accomplice identified him as a perpetrator of the armed robbery, and his fingerprints were found inside the victim’s stolen car. The evidence was sufficient for any rational trier of fact to find, beyond a reasonable doubt, that the defendant was guilty of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Sognier, C. J., Birdsong, P. J., Carley, P. J., Pope, Beasley, Cooper, JJ., and Judge Arnold Shulman, concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as it is my view that the warrant for the search of defendant’s jail cell was issued for the unlawful purpose of seizing “private papers” in violation of OCGA § 17-5-21 (a) (5).

The majority relies heavily on a Fourth Amendment analysis in determining that the warranted search of defendant’s jail cell was proper. It is my view that such an analysis is unnecessary. “After all, ‘Georgia has long granted more protection to its citizens than has the United States. . . .’ Creamer v. State, 229 Ga. 511, 515 (192 SE2d 350). And, although Georgia cannot provide less protection for its citizenry, it can provide more. Id.” Smith v. City of East Point, 183 Ga. App. 659, 660 (1) (359 SE2d 692).

One of defendant’s accomplices received an anonymous letter with a return address from the jail where defendant was incarcerated. The letter personally and affectionately refers to the accomplice and advises the accomplice to “make sure the lawyer withdraw [sic] your statement ok because you was scared and didn’t know what you was saying ok. . . .” The letter suggests circumstances which exonerate the anonymous author from criminal liability relating to any theft or armed robbery and the anonymous author seems to encourage the accomplice to adopt the account of events which is described in the letter.

Investigator Christy Liss of the DeKalb County District Attorney’s Office executed an “AFFIDAVIT AND APPLICATION FOR A SEARCH WARRANT” for defendant’s jail cell and deposed therein as follows: “ON OCTOBER 10, 1990, RANDOLPH NEWBY, SR., REPORTED BEING ROBBED AT GUNPOINT BY THREE BLACK MALES IN HIS ROOM AT THE MOTEL SIX, 2565 WESLEY CHAPEL ROAD, DEKALB COUNTY, GEORGIA. MR. NEWBY STATED THAT HE HAD PICKED UP A PROSTITUTE NAMED KAREN DELK AND HAD GONE WITH HER TO HIS ROOM. HE STATED THAT THE MALES ENTERED HIS ROOM, ROBBED HIM AND TIED HIM UP USING A TELEPHONE CORD. MS. DELK WAS LOCATED AND ARRESTED BY THE DEKALB COUNTY POLICE A SHORT TIME AFTER THE ALLEGED ROBBERY. KAREN DELK HAS GIVEN A STATEMENT CONFIRMING THAT ROBBERY DID OCCUR AND IMPLICATING TERRY EUGENE BROWN AND [DEFENDANT] AS BEING TWO OF THE ROBBERS.

“ON JANUARY 31, 1991, MS. DELK’S ATTORNEY GAVE THE DEKALB COUNTY DISTRICT ATTORNEY’S OFFICE A COPY OF THE LETTER WHICH WAS RECEIVED BY MS. DELK IN THE DEKALB JAIL. THE LETTER CONTAINS WHAT APPEARS TO BE A PROPOSED VERSION OF THE FACTS OF THE ALLEGED ROBBERY. IT ALSO INSTRUCTS MS. DELK TO ‘MAKE SURE THE LAWYER WITHDRAW [sic] YOUR STATEMENT OK BECAUSE YOU WAS SCARED AND DIDN’T KNOW WHAT YOU WAS SAYING . . .’ THE LETTER SEEMS TO INDICATE THAT ONE OF MS. DELK’S CO-DEFENDANT’S MAY BE ATTEMPTING TO INFLUENCE WHAT SHE MAY TESTIFY TO AT TRIAL. THE LETTER IS UNSIGNED, SO IT IS NECESSARY TO DETERMINE WHO WROTE IT. THE BEST METHOD WOULD BE TO OBTAIN THE KNOWN WRITING OF TERRY EUGENE BROWN AND [DEFENDANT] AND HAVE IT COMPARED TO THE LETTER.”

A search warrant was issued for defendant’s jail cell, providing for the seizure of “PAPERS AND DOCUMENTS CONTAINING THE HANDWRITING OF THE [DEFENDANT].” The search warrant alleged that these papers and documents “are in violation of. . . O.C.G.A. Section 16-8-41[, the Code section defining armed robbery, and]; O.C.G.A. Section 16-10-72[, the Code section prohibiting subornation of perjury or false swearing].” The warrant was executed and a search of defendant’s jail cell revealed handwriting samples which matched the handwriting of the anonymous letter.

A search warrant may issue for the seizure of “[a]ny item, substance, object, thing, or matter, other than the private papers of any person, which is tangible evidence of the commission of the crime for which probable cause is shown.” OCGA § 17-5-21 (a) (5). “If private papers constitute merely ‘tangible evidence’ of the commission of a crime, they are not seizable. § 3 (e) Searches and Seizures Act, Ga. L. 1966, pp. 567, 568 (Code Ann § 27-303 (e) [now OCGA § 17-5-21 (5)]).” Tuzman v. State, 145 Ga. App. 761, 766 (2) (244 SE2d 882).

Decided February 17, 1992

Reconsideration denied March 10, 1992

R. Stephen Roberts, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Gregory J. Lohmeier, Assistant District Attorneys, for appellee.

In the case sub judice, defendant’s “private papers” were the object of the warrant for the search of his jail cell. Further, the documents seized from defendant’s jail cell were used as the basis for admission of circumstantial evidence that defendant committed the crimes charged. Consequently, it is my view that the trial court erred in failing to suppress evidence derived from the illegal search of defendant’s jail cell.

       Even weighed against the needs of institutional security, a prisoner retains certain fundamental rights of personal privacy. See McCullough v. State, 177 Ga. App. 741 (341 SE2d 241) (1986).

       We assume for purposes of this discussion, without deciding, that the letter written to Delk was a statement under OCGA § 17-7-210. See Walraven v. State, 250 Ga. 401, 405-406 (297 SE2d 278) (1982); compare Franklin v. State, 166 Ga. App. 375, 377-378 (304 SE2d 501) (1983).


author: Birdsong, Presiding Judge.

text:
    A91A2158.
    THE STATE v. SMALLS.
    (416 SE2d 531)
   Birdsong, Presiding Judge.

The State of Georgia appeals the suppression of evidence in this trial of Vincent Smalls for possession of cocaine with intent to distribute. The record shows that Smalls’ motion to suppress originally was dismissed for failure of counsel to appear at hearing in November 1989. New counsel was appointed in February 1990 and trial of the case was convened April 25, 1990. At the call of the case, Smalls’ new counsel resurrected the motion to suppress. The trial judge heard the motion after the jury was impaneled and sworn and suppressed the evidence upon a finding that police lacked probable cause to stop or arrest Smalls because they had not received a tip from a reliable informant and did not see him engage in criminal activity with their own eyes. Held:

1. Smalls contends the State has no right to this appeal because the motion to suppress was heard after the jury was impanelled and sworn. OCGA § 5-7-1 (4) provides the State may make a direct appeal from an order, decision or judgment “sustaining a motion to suppress evidence illegally seized in the case of motions made and ruled upon prior to the impaneling of a jury.” Ergo, Smalls contends this ruling was not directly appealable because the motion to suppress was not heard “prior to the impaneling of a jury.” Id.

The trial court in this case did not dismiss the indictment or bar further prosecution, but merely commented that its ruling suppressing the evidence would probably end the case but that the State had a right to appeal. This was not a case like State v. Brown, 198 Ga. App. 239, 241 (401 SE2d 295), where the trial court improperly barred futher prosecution. Other cases cited by Smalls are similarly inapt.

The provision in § 5-7-1 (4) as to direct appealability of a ruling on motion to suppress made “prior to the impaneling of the jury” was framed to allow the State to appeal such error “before attachment of jeopardy.” State v. Strickman, 253 Ga. 287, 288 (319 SE2d 864). But for OCGA § 5-7-1, certain rulings would be interlocutory and not directly appealable. Double jeopardy is the point Smalls is trying to make by relying upon this statute. He in effect contends that because the ruling terminated the proceedings “after the jury was impaneled and sworn,” even if this “termination” was “improper,” subsequent prosecution (including this appeal) is barred. See OCGA § 16-1-8 (a) (2).

Smalls has overlooked paragraph (e) of OCGA § 16-1-8, which deals with the parallel situation of an “improper termination” of a prosecution which will bar further prosecution. OCGA § 16-1-8 (e) provides: “Termination under any of the following circumstances is not improper: (1) The accused consents to the termination or waives by motion to dismiss or other affirmative action his right to object to the termination.” (Emphasis supplied.) Applying that parallel principle to this case, we find the record shows clearly that Smalls’ counsel, though appointed two months prior to the trial date, waited until trial to resurrect the motion to suppress which had been dismissed in November 1989. When at trial Smalls’ counsel reasserted the motion to suppress on grounds that Smalls’ first attorney had abandoned him, the State suggested impaneling the jury before hearing the motion; Smalls’ counsel did not object but proceeded directly to argue the motion to suppress, which was granted. Smalls consented to that “termination” and by his affirmative action waived his right to object to the termination. This was his own motion to suppress which he insisted on raising at trial and failed to ask for a hearing before trial; although the State would have been wise not to suggest impaneling and swearing the jury beforehand, Smalls readily consented to this arrangement. As to a defendant’s waiver by his own actions of the right to claim jeopardy, see State v. Abdi, 162 Ga. App. 20 (288 SE2d 772), affirmed 249 Ga. 827 (294 SE2d 506).

2. The trial court erred in suppressing the evidence for lack of probable cause. The police responded to an anonymous telephone call from someone “inside the Frazier Homes area, around 524 Frazier Homes, to be exact, in reference to a group of black males standing between the two buildings, selling crack cocaine. They didn’t specify any names or anything, just a group of black males.” Plainclothes officers were dispatched directly to the location to see if they could catch the persons in the act. They entered the Frazier Homes area on foot and saw six or eight subjects “loitering around the two buildings.” Several subjects ran away pursued by police; they were not caught. Two subjects, including Smalls, did not run but walked away when the plainclothes officers approached. The officers asked if they could talk to Smalls and he agreed. The officers asked him his name, what he was doing there, and where he lived. “For safety,” one officer asked him to take his hands out of his pockets; when he did so the officer patted him down and felt a large sum of money in his pocket. The officer asked Smalls “if I could look at the money in his pocket, and he went into the pocket to get the money out. At that time I said, wait a minute, do you mind if I get it out, and I went in and got the money out of his pocket. ... He did not ever say I couldn’t get the money out.” One dollar bill had some beige chalky substance embedded in it that “appeared to be cocaine.” The officer performed a field test on the dollar bill and found it positive for cocaine. Appellee Smalls was not arrested at this time.

Another officer found a medicine bottle leaning against one of the buildings to which the officers had been called, 524 Gwinnett Street, Frazier Homes. When the police approached, Smalls and another subject were about ten feet from the bottle, walking away from it. Smalls denied knowing anything about the bottle. The bottle was seized and its contents tested positive for cocaine. Smalls was arrested four days later after fingerprints lifted from the bottle were found to match fingerprints of Smalls which were on file.

The trial court determined that the police had no probable cause in the first place to approach a group of individuals when they saw no criminal activity. Admittedly the call received by police was not from a reliable informant, but was an anonymous tip. “ ‘This court has always given the concerned citizen informer a preferred status insofar as testing the credibility of his information. [Cits.]’ 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 . . . facts from which it can be concluded that the anonymous tipster is, in fact, a ‘concerned citizen.’ [Cit.]” State v. Brown, 186 Ga. App. 155, 157 (366 SE2d 816).

The anonymous phone call did not by itself give sufficient probable cause to support the issuance of a search warrant (State v. White, 196 Ga. App. 685 (396 SE2d 601)), but we are not required to find probable cause in this anonymous telephone call in this case, for no search warrant was obtained, and no search was made, merely on the basis of the anonymous phone call. That police receive information which does not amount to probable cause does not require them to shrug their shoulders and make no inquiry, but rather the circumstances may justify investigation. Johnson v. State, 197 Ga. App. 538, 539-540 (398 SE2d 826). This anonymous tip, while not amounting to probable cause, was sufficient to warrant a visual inspection of the public premises for investigation based on the police officers’ common experiences as to drug activity in such residential areas. They found a group of persons as described in the phone call; as they approached the public area, some of the persons in the group fled running; others, including Smalls, attempted to leave the scene more slowly. This attempt to leave the scene was assessable as flight, which being evidence of consciousness of guilt (see Carter v. State, 180 Ga. App. 269 (349 SE2d 19)) in the circumstances gave rise to an “articulable suspicion” that Smalls was engaged in criminal activity and authorized police to stop appellee Smalls briefly for investigation. Flight in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search (Banks v. State, 187 Ga. App. 280, 282 (370 SE2d 38)); certainly these circumstances gave rise to an articulable suspicion that a criminal act may have been occurring so as to authorize a brief investigatory stop. The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause for arrest simply to shrug his shoulders and allow a criminal to escape. Reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop. State v. Baker, 197 Ga. App. 1, 2 (397 SE2d 554). The investigatory stop in this case was justified by objective manifestation that appellant was engaged in criminal activity. Id.; United States v. Cortez, 449 U. S. 411, 417 (101 SC 690, 66 LE2d 621). Compare Johnson v. State, supra, where the defendant was stopped solely on the basis of an anonymous phone tip even though, on investigation of the tip, no suspicious activity was observed. See also State v. Baker, supra; Jones v. State, 187 Ga. App. 421, 423 (370 SE2d 784). Appellant was not then arrested, but the brief pat-down “for safety” disclosed the bulge of money; Smalls consented to let police remove the money “and he [Smalls] went into the pocket to get the money out,” but the officer preferred to get it out himself. When he pulled the money from Smalls’ pocket, it was with Smalls’ consent, and he found the dollar bill embedded with cocaine. There was nothing illegal about this search or seizure since it was with effective consent, and that evidence need not have been suppressed.

As for the legality of the cocaine bottle as evidence, the discovery of this bottle leaning against the building ten feet from Smalls was not the result of the brief investigatory stop and pat-down of Smalls that night. It was observed by police in plain sight in a place where police were constitutionally authorized to be. See May v. State, 181 Ga. App. 228 (351 SE2d 649); Griffin v. State, 180 Ga. App. 189, 190 (348 SE2d 577). Indeed, Smalls disclaimed any ownership or knowledge of the bottle; evidently it had been abandoned. Deych v. State, 188 Ga. App. 901, 902 (374 SE2d 753); Ramsey v. State, 183 Ga. App. 48, 50 (357 SE2d 869). Appellant was not arrested, searched, or detained that night on the basis of discovery of this bottle. He was not arrested until four days later, after the independent discovery of fingerprints on the bottle containing cocaine which matched the fingerprints of Smalls already of file. Discovery of this bottle did not come out of a search of Smalls, illegal or otherwise (id.), even though it had his fingerprints on it, and we see no reason why it may not be used as evidence in a prosecution against him, along with the other evidence in the case, including the fact that the bottle was found near him as he was walking away from it. The trial court erred in suppressing this evidence on grounds of lack of probable cause in that police did not see Smalls sell cocaine.

Decided February 24, 1992

Reconsideration denied March 10, 1992.

Spencer Lawton, Jr., District Attorney, John T. Garcia, Assistant District Attorney, for appellant.

Wisenbaker & McCusker, Stephen M. McCusker, for appellee.

Judgment reversed.

Pope and Cooper, JJ., concur.


author: Cooper, Judge.

text:
    A91A1625.
    KING v. THE STATE.
    (416 SE2d 842)
   Cooper, Judge.

Appellant was tried by a jury and convicted of trafficking in cocaine, a violation of the Georgia Controlled Substances Act. His motion for new trial was denied, and this appeal follows.

The evidence adduced at trial reflects that on June 24, 1989, an agent with the Georgia Bureau of Investigation received the following information from a confidential informant: that on that day an automobile with a Florida license tag was going to be travelling through Banks County, Georgia; that the occupants of that automobile would be a black male and black female; that at approximately 1:30 p.m., the occupants of the Florida car would arrive at the country store on Highway 63, where they would meet a late model yellow Buick occupied by two black males, one of whom was the confidential informant; and that the Florida car would be carrying a large quantity of cocaine. Based on the information given by the confidential informant, the GBI along with local law enforcement officers began surveillance of the country store. At approximately 1:32 p.m., a yellow late model Buick occupied by two black males, one of whom was the confidential informant, arrived at the country store. The driver of the Buick waited at the store for a few minutes before he left and headed north on Highway 63 toward 1-85. The GBI agent followed the Buick for about a mile, and after about a mile, he saw the driver of a white car travelling south wave at the Buick. The driver of the Buick made a U-turn and began to follow the white car. When the agent turned his car around to continue following the Buick, he saw that the white car had a Florida tag and was occupied by a black male and a black female. The agent radioed ahead to other officers, who stopped the white car. Appellant was driving the white car, and upon request, he consented to a search of the car by the officers. The woman in the car, Deloise Glasper (“Glasper”) exited the passenger side of the car and took her purse which had been on the floorboard of the car. The agent noticed that Glasper clutched the purse close to her side as she exited the car. The agent asked Glasper twice if he could search her purse and instead of responding, Glasper looked at appellant. When the officer asked a third time for permission to search the purse, Glasper again looked at appellant, and appellant stated that he did not care. Glasper then allowed the agent to search the purse which revealed a clear plastic bag containing suspected cocaine. Tests subsequently performed on the substance revealed the presence of 263 grams of cocaine with a purity of 41 percent. Appellant and Glasper were indicted jointly for trafficking in cocaine. Glasper entered a plea of guilty prior to appellant’s trial. Appellant testified and denied any knowledge of the drugs found in Glasper’s purse; however, the State called Glasper in rebuttal and she testified that appellant gave her the cocaine to put in her purse.

1. Appellant first contends that the information provided by the confidential informant did not provide the officers with probable cause to search the vehicle; therefore, the trial court erred in denying his motion to suppress the fruits of that search. Appellant erroneously argues that the officers needed probable cause before conducting a search of his vehicle. “ ‘ “We have repeatedly held that an authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has ‘reasonable’ grounds for such action. . . . [Cit.]” Stiggers v. State, 151 Ga. App. 546 (1) (260 SE2d 413) (1979). The record does not contain a transcript from the hearing on the motion to suppress. However, the testimony at trial discloses that the officers had a reasonable articulable suspicion which justified a stop of the vehicle to investigate the circumstances. Walton v. State, 194 Ga. App. 490 (2) (390 SE2d 896) (1990). Following the stop of the vehicle, there was a valid consent for the search of the vehicle and the purse, and we find no error in the denial of the motion to suppress. “Further, we must assume, absent the availability to us of whatever material the court considered while hearing evidence on the motion, that the court properly exercised its judgment and discretion in denying appellant’s motion to suppress. [Cit.]” Fudge v. State, 184 Ga. App. 590 (1) (362 SE2d 147) (1987).

2. In his second enumeration of error, appellant contends that the trial court erred in admitting evidence of his bad character. In response to the prosecutor’s questions about whether he knew the price of crack cocaine, appellant made the following statement. “I don’t smoke marijuana. I don’t snort, shoot, or base no cocaine.” The trial court ruled that appellant had placed his character in issue and allowed the prosecutor to cross-examine appellant about a prior conviction involving drugs. “Although we agree that [appellant] did not put his character into issue within the meaning of OCGA § 24-9-20 (b), it was proper to allow evidence of his prior drug possession charge to disprove his [statements] that he did not use drugs.” Sanders v. State, 199 Ga. App. 671 (3) (405 SE2d 727) (1991). The prosecutor’s questioning of appellant regarding his prior conviction went no farther than necessary to rebut appellant’s unsolicited denial of drug use, and we find no error. See Beauchene v. State, 194 Ga. App. 222 (2a) (390 SE2d 116) (1990). Appellant also contends that the trial court erred in allowing one of the State’s witnesses to testify as to a prior armed robbery conviction of appellant. When Glasper was asked whether she had ever served time in prison, she responded that she had served time with appellant for armed robbery. The witness’ non-responsive answer to the prosecutor’s question, although negatively impacting on appellant’s character, did not improperly place his character in issue. See Jones v. State, 257 Ga. 753, 759 (363 SE2d 529) (1988).

3. Appellant contends in his third enumeration of error that the trial court erred in denying his motion for directed verdict made at the close of the State’s case. The trafficking statute in effect at the time of appellant’s arrest authorized a conviction for trafficking upon proof of either actual or constructive possession of 28 or more grams of cocaine. See OCGA § 16-13-31 (a) (1) as amended by Ga. L. 1988, p. 420, § 2. See also White v. State, 196 Ga. App. 813 (4) (397 SE2d 299) (1990). “ ‘A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.’ [Cits.]” Lockwood v. State, 257 Ga. 796, 797 (364 SE2d 574) (1988). The arresting officer testified that he asked Glasper three times if he could search her purse, and Glasper would not respond, but looked at appellant as if to say “What do you want me to say?” It was when appellant responded that he did not care that Glasper allowed the search. The search of the purse also revealed a Pac-tel beeper receipt in appellant’s name and an address book designating appellant as the owner of the book. Based on the above facts, we find that there was some evidence from which a jury could conclude that appellant had constructive possession of the contents of Glasper’s purse. “[I]t is not error to deny a motion for directed verdict of acquittal when a rational trier of fact, viewing the evidence in a light most favorable to the State, could have found the essential elements of the crime beyond a reasonable doubt. [Cit.]” Dukes v. State, 195 Ga. App. 776 (1) (395 SE2d 263) (1990).

Decided March 10, 1992.

Jerry C. Gray, for appellant.

Timothy G. Madison, District Attorney, for appellee.

4. In his final enumeration of error, appellant contends that the trial court erred in charging the jury that any person “who is knowingly in actual possession of 28 grams or more of cocaine or any mixture with a purity of ten percent or more of cocaine commits the offense of trafficking in cocaine.” Appellant argues that the charge was an incorrect statement of the law and did not adequately inform the jury on what constituted possession. The record reflects that following the trial court’s charge, appellant’s counsel objected to the trial court’s failure to give certain charges. However, appellant’s counsel did not object to the charge now complained of or to the trial court’s failure to charge on what constitutes possession. Appellant cannot object to some charges and reserve his right to object to other charges. Laster v. State, 196 Ga. App. 854 (2) (397 SE2d 191) (1990). “ ‘In the absence of an objection to the alleged improper charge or reservation of the right to object, the asserted error is waived.’ [Cits.]” Laster, supra at 856.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Andrews, Judge.

text:
    A91A1978.
    SWEAT v. THE STATE.
    (416 SE2d 845)
   Andrews, Judge.

Sweat was tried and convicted of four counts of armed robbery, four counts of possession of a firearm during commission of a crime and one count of aggravated assault. He appeals, contending that the trial court committed the following six errors.

1. In his first enumeration of error, Sweat contends that the trial court abused its discretion by allowing a witness for the prosecution, Investigator Vincent, to remain in the courtroom in violation of the sequestration rule under OCGA § 24-9-61.

In Mullen v. State, 197 Ga. App. 26,, 27 (2) (397 SE2d 487) (1990), the court stated: “[t]he record reveals that when appellant’s counsel objected to Vincent’s presence, the prosecutor stated he needed Vincent’s assistance during the trial and that to compel him to testify first would require the State to present its case out of sequence. This court previously has held that in similar circumstances, the exception of a witness from the rule of sequestration does not constitute an abuse of the trial court’s discretion, e.g., Mathews v. State, 183 Ga. App. 224 (1) (358 SE2d 639) (1987); Fowler v. State 179 Ga. App. 492, 493 (2) (347 SE2d 322) (1986). . . .” Id. at 27-28. Here, the prosecuting attorney stated that the witness was needed to aid in the presentation of the case and that in the orderly presentation of the case could not testify first and we find no error.

2. In his second enumeration of error, Sweat claims that the trial court erred by denying his motion for a mistrial by allowing the prosecution to improperly place his character in issue. He bases this claim upon testimony from a police officer which generically described the procedure used for fingerprinting individuals. The record does not support Sweat’s contention that his character was placed in issue and this enumeration is without merit.

3. Sweat next contends that the trial court erred by refusing to allow one of the prosecution witnesses to refresh his recollection from a police report prepared by another officer. Although the law requires no showing that the officer himself prepared the report, see Ussery v. State, 195 Ga. App. 394 (3) (393 SE2d 522) (1990), nevertheless “[i]n order to swear positively from the paper, it is essential that the witness should at some time have had personal knowledge of the correctness of the memorandum.” (Punctuation and citations omitted.) Mincey v. State, 257 Ga. 500, 505 (6) (360 SE2d 578) (1987); see generally OCGA § 24-9-69. In the instant case, the officer testified that he had no such personal knowledge and there was no error.

4. Sweat claims that the trial court erred by failing to grant his motion for severance requesting a separate trial from his co-defendant. Sweat has failed to articulate any specific reason for severance and he has failed to show any actual prejudice or denial of due process which resulted from the failure to sever.

“OCGA § 17-8-4 provides that when two or more defendants are jointly indicted for a felony less than capital, defendants may be tried jointly or separately in the discretion of the trial court. Our Supreme Court has found that the trial judge must exercise his discretion in each particular case, but the burden is on the defendant requesting the severance to do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process. They set forth a three-part standard: (1) Will the number of defendants create confusion of the evidence and law applicable to each individual defendant? (2) Is there a danger that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court? (3) Are the defenses of the defendants antagonistic to each other or to each other’s rights? We answer each question in the negative. We find no error.” (Punctuation and citations omitted.) Sims v. State, 186 Ga. App. 74, 75 (4) (366 SE2d 406) (1988); see also Sims v. State, 195 Ga. App. 631 (394 SE2d 422) (1990).

5. In his fifth enumeration of error, citing Garrett v. State, 184 Ga. App. 593 (5) (362 SE2d 150) (1987), Sweat claims that the trial court erred in that its instructions to the jury were confusing and left the jury with the impression that it was necessary either to find Sweat guilty on all counts or not guilty on all counts and omitted the possibility of finding him guilty on some counts and not on others.

We have reviewed the record and find that the trial court read the jury each count of the indictment separately and clearly explained several times that in order to convict it was necessary to prove each element of each crime in the indictment. With respect to the verdict, the court also explained that it was necessary to make a finding on each individual count. The charge in its entirety adequately advised the jury that the counts against appellant were separate and distinct and this enumeration is without merit. See, e.g., Suggested Pattern Jury Instructions, Vol. II Criminal Cases, § FF (2).

6. Finally, Sweat contends that the trial court erred in allowing the prosecution in closing argument to inform the jury that various witnesses did not testify due to the failure of the defense to call them as witnesses and that this improperly shifted the burden of proof to the accused. It is important to note that Sweat does not appear to contend, nor does the record support the argument that the prosecutor referred in any manner to Sweat’s failure to testify. “Though the prosecutor may not comment on a defendant’s failure to testify, it is not error, nor is it improper for the prosecutor to reflect upon the failure of the defense to present any evidence to rebut the proof adduced by the State. Thus, there was no error if the prosecutor’s comments in this case were merely directed toward appellant’s failure to rebut the State’s evidence against him.” Martin v. State, 193 Ga. App. 581, 585 (4) (388 SE2d 420) (1989); McGee v. State, 260 Ga. 178 (391 SE2d 400) (1990); see also Williams v. State, 200 Ga. App. 84 (3) (406 SE2d 498) (1991). Accordingly, this enumeration is without merit.

Decided March 10, 1992.

Ronnie K. Batchelor, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A91A2024.
    SARTIN v. THE STATE.
    (416 SE2d 572)
   Pope, Judge.

Defendant was convicted by a jury of one count of possession of cocaine and one count of possession of cocaine with intent to distribute. He appeals his convictions and the denial of his motion for new trial.

The record establishes that on February 24, 1990, Commander Bill Whitener of the Rome/Floyd Metro Drug Task Force received a telephone call from a reliable informant that defendant was at the County Line Tavern with a large amount of cocaine. Defendant was also said to be driving a blue Camaro with Georgia tag number CLH414. Commander Whitener enlisted the assistance of four other police officers who took turns driving by the County Line Tavern at different times during the evening to confirm that the blue Camaro was parked in the lot. Later in the evening, Commander Whitener set up surveillance on the location.

At about 11:00 p.m., defendant left the bar alone, got into the blue Camaro, and proceeded to drive north on Highway 27. After defendant drove past Commander Whitener, the officer fell in behind the Camaro and followed defendant in a Chevrolet Blazer. The other three officers fell in behind Commander Whitener. After the caravan proceeded for several miles, defendant began driving at erratic speeds, speeding up and slowing down at irregular intervals. When the officer’s vehicle moved within three car lengths of defendant’s vehicle, the Blazer’s headlights illuminated the inside of the Camaro. The officer observed defendant’s hand go up and make a throwing motion toward the passenger window of the Camaro. Commander Whitener also saw a bag fly out the passenger window of the Camaro. The officer immediately stopped his Blazer and started searching for the bag. The other officers continued to follow defendant’s vehicle until defendant pulled over to the side of the road. Two of the officers observed defendant leaning across the console of the Camaro, and he appeared to be rolling up the passenger window. Eventually Commander Whitener found a large clear plastic bag containing 14 individual clear plastic bags of cocaine about 15-20 feet from the edge of the road. He radioed the other officers and told them to arrest defendant for violation of the Georgia Controlled Substances Act. After one of the officers detected an odor of alcohol on defendant’s breath, defendant was also charged with DUI. During trial, defendant moved for a directed verdict on the DUI count, which was granted by the trial court.

1. Defendant’s first enumeration of error is not supported by argument, reference to the transcript, or citation of authority. Thus, this enumeration is deemed abandoned. Court of Appeals Rule 15 (c); Grier v. State, 198 Ga. App. 840, 842 (2) (403 SE2d 857) (1991).

2. Defendant next argues the trial court erred in allowing into evidence the 14 bags of cocaine found by Commander Whitener. On appeal, defendant asserts four reasons why the cocaine was inadmissible: (1) the State failed to connect the cocaine to defendant; (2) the State failed to prove the chain of custody; (3) the State failed to prove that all 14 bags contained cocaine; and, (4) the State failed to prove probable cause for stopping defendant.

We first address whether defendant properly raised each of these grounds during trial. Our review of the transcript reveals when the State sought to introduce the cocaine into evidence, defense counsel stated: “I have no objection subject, of course, to it being tied up.” When the State rested its case, the defense counsel raised an objection to the admission of the cocaine, this time stating: “It has not been connected up ... It has not been gotten from the Rome Metro Task Force office to the crime lab, never. There is no witness to connect that up, please the Court, and that’s a fact.” Although the trial court stated that it had not interpreted defense counsel’s first comment as an objection to the chain of custody, but rather a question as to the cocaine’s “connection with the defendant, connected to the defendant because it had been thrown out of the automobile,” the trial court nevertheless determined the chain of custody had been adequately proven by the State. Although we are hard pressed to see how defense counsel’s first comment constituted a proper objection to the admissibility of the cocaine on any grounds, we will consider the first and second grounds raised by defendant on appeal because the trial court specifically addressed both of these grounds during trial. Since the other two grounds were never raised by defendant at trial, they will not be considered for the first time on appeal. See Proveaux v. State, 198 Ga. App. 119 (4) (401 SE2d 12) (1990).

(a) Defendant argues the State failed to connect the cocaine directly to defendant. Commander Whitener testified at trial that he saw a bag fly out the passenger window of defendant’s vehicle. The plastic bag, containing 14 smaller bags of a white powder, was immediately recovered approximately 15 to 20 feet from the edge of the road near the location where the officer had seen it thrown. Two of the officers who stopped defendant’s vehicle testified that when they stopped defendant’s vehicle, he appeared to be rolling up the passenger window of the Camaro. The evidence was sufficient to enable a rational trier of fact to connect the contraband to defendant. See Carswell v. State, 201 Ga. App. 746 (412 SE2d 572) (1991).

(b) Defendant argues the trial court erred by allowing the cocaine to be admitted into evidence because the State failed to properly establish the chain of custody of the cocaine. Commander Whitener testified that after defendant was arrested, the officer returned to the Task Force office and weighed the large plastic bag. The gross weight of the bag was approximately 19 grams. He also testified that he locked the bag up inside the vault at the Rome/Floyd Metro Task Force and on February 28, 1990, delivered it to Officer Ward, the evidence custodian at the Rome Police Department. Officer Ward did not testify at trial, but GBI Agent David Abbot testified that on March 21, 1990, he received a brown paper bag sealed with staples from Officer Ward and immediately placed the bag in his unworked evidence locker at the GBI Crime Lab, where it remained until he was ready to analyze the contents. When the brown paper bag was opened, he found a plastic bag containing 14 corners of plastic bags filled with white powder. The gross weight of the large plastic bag was 18.8 grams. Because Officer Ward did not testify at trial, defendant argues the State failed to properly prove the chain of custody of the cocaine.

“Where the State seeks to introduce evidence of a fungible nature, it need only show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The fact that one of the persons in control of a fungible substance does not testify at trial does not, without more, make the substance or testimony relating to it inadmissible. The trial court was authorized to conclude that the [S]tate had met its burden with respect to the establishment of the chain of custody in the present case. [Cit.] ‘There being, at most, bare speculation of tampering or substitution, the trial court correctly admitted the cocaine into evidence. [Cit.]’ [Cit.]” Williams v. State, 199 Ga. App. 122, 123 (2) (404 SE2d 296) (1991).

3. Defendant argues that the trial court erred by allowing the State to introduce similar transaction evidence of his prior convictions of possession of cocaine, possession with intent to sell and trafficking in cocaine. On appeal, defendant asserts three reasons why the similar transaction evidence was inadmissible: (1) there was not sufficient similarity between the offense charged and the prior offenses; (2) his prior convictions were not final because defendant had appealed his convictions to this court; and, (3) the State failed to attach copies of the documentation pertaining to his prior convictions in accordance with Uniform Superior Court Rules 31.1 and 31.3 (B).

(a) The similar transaction evidence presented at trial showed that on or about May 22, 1989, Commander Whitener received information from a reliable informant that defendant had a large amount of cocaine in his possession and was driving a blue Ford pick-up truck with Georgia tag number YH1530. Commander Whitener set up a surveillance on the truck, and after defendant got in the vehicle and drove away, the officer instructed a marked patrol unit to stop defendant. The Task Force recovered 31 bags of cocaine from defendant, weighing approximately 40 grams. At the time of his prior arrest, defendant admitted the cocaine was his.

“The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. Thus, the requisite similarity between the two incidents depends on the purpose for which the evidence is being presented.” (Punctuation and citations omitted.) Sams v. State, 201 Ga. App. 109, 110 (1) (410 SE2d 330) (1991).

The independent crimes and the crimes charged were drug offenses involving defendant’s possession of a substantial amount of cocaine. Moreover, all charges stemmed from a tip received from a reliable informant that defendant possessed a large quantity of cocaine and was driving an identified vehicle. The only difference between the two incidents was that at the time defendant was arrested for the present crimes, he attempted to get rid of the contraband when he realized he was being followed by police officers. We conclude there was sufficient similarity between the offenses charged and the independent crimes. “The evidence was admitted for the limited purpose of illustrating [defendant’s] state of mind, and the trial court gave appropriate limiting instructions. Accordingly, we find no error. [Cit.]” Willis v. State, 199 Ga. App. 658, 659 (1) (405 SE2d 739) (1991).

(b) Defendant next argues the independent crime evidence was inadmissible at trial because there had not been a final disposition of his appeal in this court. “In order for a similar transaction to be admissible, it is not required that the transaction resulted in a conviction. [Cit.]” Tilley v. State, 197 Ga. App. 97, 98 (2) (397 SE2d 506) (1990). Thus, there was no error in this case. We also note that because this court ultimately affirmed defendant’s prior convictions in Sartin v. State, 201 Ga. App. 612 (411 SE2d 582) (1991), this argument has become moot.

Decided March 10, 1992.

John E. Sawhill III, James A. Robbins, Jr., for appellant.

Stephen F. Lanier, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

(c) The last of defendant’s arguments was never raised in the lower court. Therefore, it will not be considered on appeal. See Proveaux v. State, supra at (4).

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A2122.
    A91A2243.
    CORBIN v. THE STATE. SIMS v. THE STATE.
    (416 SE2d 848)
   Andrews, Judge.

Sims and Corbin appeal their convictions of possession of marijuana with intent to distribute and the appeals are considered together.

Viewed in favor of the verdict, the evidence showed that Corbin, a resident of a town near Fort Walton Beach, Florida, rented a car in Fort Walton Beach on the morning of July 29, 1990, to go to North Carolina to visit Sims, a friend of his father-in-law. Both men were experiencing financial difficulties. Although Corbin owned a car, he decided to rent one for the trip. Both men went to the airport rental office to pick up the car, paying a cash deposit. They took the rental car back to Sims’ residence where the car was loaded. When Sims placed his overnight bag in the trunk, he saw a plaid suitcase which he testified he believed to be Corbin’s. Corbin then drove them to Atlanta, a six-hour drive. They pulled off the expressway at 7:00 p.m. looking for gas. Officer Daniel pulled into traffic behind them, on his way home for his evening meal. He noticed Corbin make an abrupt turn without signalling and turned on his blue lights to pull him over. He approached the car and noticed that the license tag was from Florida and began with a “Y,” indicating a rental car. He also noticed a rental agency sticker as he walked toward the car.

Upon reaching the driver’s window, Officer Daniel noticed a very strong odor of freshly cut marijuana emanating from the car. Corbin appeared very nervous to the officer. Corbin was asked if he would consent to the officer’s searching the car and he agreed. At that point, Officer Daniel went to the other side of the car and asked Sims to get out. He noticed the odor from that side of the car also. Upon searching the car, the officer concluded the odor was coming from the trunk where he found two suitcases. Sims acknowledged that one was his and the officer found men’s clothing in it. Neither occupant claimed ownership of the large plaid suitcase containing 8 lbs., 4 oz. of freshly cut marijuana. The marijuana was still damp and was wrapped in a Fort Walton Beach newspaper dated July 26, 1990.

1. Corbin’s second enumeration and Sims’ third allege error in the denial of their joint motion for directed verdict. Sims’ first enumeration addresses the legal sufficiency of the evidence under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), which is the issue for this court in reviewing the denial of a motion for directed verdict. Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436) (1984). Defendants contended that the suitcase was the property of the person who rented the vehicle immediately before them. The fact that the jury did not accept this hypothesis as reasonable is not insupportable as a matter of law and the evidence was therefore sufficient. Carswell v. State, 201 Ga. App. 746, 747 (412 SE2d 572) (1991).

2. Both defendants filed motions to suppress below, based on their contentions that the stop was clearly pretextual and unreasonable under Brown v. State, 188 Ga. App. 184 (372 SE2d 514) (1988). Corbin’s first enumeration and Sims’ second allege error in the denial of their motions and will be addressed together.

Brown involved an officer’s observance and following of a vehicle on an interstate highway based solely on the drug courier profile. The officer followed the car until it made a quick lane change in order to get out of the officer’s lane of traffic and then stopped the vehicle, later obtaining consent, and found by one panel of this court not to have been voluntary because of the pretextual nature of the stop.

Here, the officer testified that Corbin made an abrupt turn off a surface street without signalling, a traffic violation, OCGA § 40-6-123, and that he stopped the car because of the traffic violation. While Corbin testified he did signal, the court below resolved these credibility issues adversely to him and we must accept these findings unless clearly erroneous. Hill v. State, 183 Ga. App. 654, 656 (2) (360 SE2d 4) (1987).

“The stop of a vehicle is authorized, and not pretextual, if the officer observed a traffic offense. [Cits.]” Gossett v. State, 199 Ga. App. 286 (1 a) (404 SE2d 595) (1991). “A rule requiring a law enforcement officer to forego making a traffic stop which he would otherwise be authorized to make merely because he suspects that the vehicle might be engaged in the transport of illicit drugs would have little to commend it, and we have previously declined the invitation to create such a rule.” (Citations omitted.) Polk v. State, 200 Ga. App. 17, 18 (406 SE2d 548) (1991).

There was no error in the denial of the motions to suppress.

Decided March 10, 1992.

Wynn, Pelham & Associates, Nelson H. Turner, for appellant (case no. A91A2122).

Walter J. Clarke, for appellant (case no. A91A2243).

Thomas C. Lawler III, District Attorney, C. Lane Graves, Assistant District Attorney, for appellee.

3. Corbin also contends that the court’s failure to give his requested charge on equal access requires reversal. There was no error. Bozeman v. State, 196 Ga. App. 743, 744 (6) (397 SE2d 30) (1990); Lockwood v. State, 184 Ga. App. 262, 265 (4) (361 SE2d 195) (1987), rev’d on other grounds, 257 Ga. 796 (364 SE2d 574) (1988).

Judgments affirmed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A91A2153.
    CAULEY v. THE STATE.
    (416 SE2d 575)
   Andrews, Judge.

Cauley was indicted for six counts of rape, eight counts of aggravated sodomy, three counts of child molestation and three counts of simple battery. He was convicted of one count of rape, three counts of simple battery, and acquitted on the remaining counts.

This appeal arises out of the following events. At the conclusion of the first day of Cauley’s trial, both the prosecution and defense had concluded their cases and the evidence was closed. On the morning of the second day, before closing arguments began, Cauley told the judge in the presence of the jury that he wanted to fire his attorney since the attorney had not called all of his witnesses. The jury was taken out of the courtroom and Cauley stated: “He refused to call my witnesses. I’ve got witnesses sitting here that this man hasn’t subpoenaed. He’s told every one of 'em to be here today. . . .”

The court instructed Cauley to be quiet and the jury was brought back and polled with respect to whether the outburst prejudiced them against him. At the conclusion of the jury questioning, Cauley struck defense counsel. He again complained that defense counsel would not call his witnesses. The jury was taken out of the courtroom again.

The court then stated that Cauley had the option of being quiet or of dismissing his attorney and making his own closing argument. Cauley stated that he wanted defense counsel to make the closing argument, but again inquired as to whether his witnesses could be called. At this point, the trial court stated that if Cauley was willing to waive the attorney/client privilege, his attorney could divulge to the court the reason he had not called the witnesses. After conferring with his lawyer, Cauley declined to relieve his attorney of the attorney/client privilege. The jury returned and the verdict against Cauley on four of the twenty counts was returned.

Because the ineffective assistance of counsel argument had already been raised, the trial court appointed appellate counsel to represent Cauley on the hearing of the motion for new trial. The motion for new trial was filed and included the claim that trial counsel was ineffective in that he failed to call material witnesses who could have provided an alibi defense for Cauley.

The trial court held an evidentiary hearing on the motion for new trial and on the ineffective assistance claim. Cauley testified at the hearing and claimed that four witnesses could all have testified that he was with them in Lyons, Georgia, on July 26, 1989, the date of the rape for which he was convicted. Cauley stated that he had provided this information to his trial counsel and that counsel failed to call the witnesses. In connection with this, Cauley submitted the unsworn statements of the witnessés in which they stated that they had seen Cauley on July 26.

Despite this alibi evidence, at trial Cauley had testified that he was at home with the victim on July 26. He conceded at the hearing that he failed to mention during his trial that he was in Lyons on that date, and he admitted that he did not testify that he had encountered the four witnesses on July 26. Furthermore, Cauley’s calendar, in which he recorded his daily activities, stated “Morgan’s Bridge” for the date July 26, 1989, but did not contain any reference to Lyons or to the four witnesses.

Cauley’s trial counsel also testified during the hearing on the motion for new trial. He stated that he and Cauley had discussed the alibi defense several times and recalled that Cauley had discussed activities at Morgan’s Bridge on July 26, but did not recall Cauley ever mentioning going to Lyons or seeing the witnesses on that date. The attorney recalled that he had spoken with at least one of the witnesses and that his discussion with this witness had not involved the Lyons alibi, but had focused on the character of the victim. The attorney testified that the witnesses he did not call were those whom he thought would not be helpful to the defense.

In a lengthy order, the trial court found that defense counsel had adequately investigated the case, the court denied the motion for new trial and found that the claim of ineffective assistance was without merit.

1. In his first enumeration of error, Cauley claims that the trial court erred in denying him the constitutional right to compel witnesses to testify. This enumeration is without merit. At the point at which Cauley’s outburst began, the evidence was closed. Furthermore, defense counsel never indicated that he wished to call any additional witnesses. Pretermitting the question of whether the issue was properly preserved for our review, we find no abuse of the trial court’s discretion in the refusal to re-open the evidence. See generally Stewart v. State, 177 Ga. App. 740 (2) (341 SE2d 235) (1986). Cauley’s argument that he was forced to choose between his right to counsel and his right to call witnesses in his behalf is also without merit.

2. In his second enumeration of error, Cauley claims that trial counsel rendered ineffective assistance of counsel by failing to call favorable witnesses. “The determination as to which defense witnesses will be called is a matter of trial strategy and tactics.” Harris v. State, 198 Ga. App. 503 (1) (402 SE2d 62), reversed on other grounds 261 Ga. 386 (405 SE2d 482) (1991); see also Pilcher v. State, 170 Ga. App. 869 (4) (318 SE2d 640) (1984). “Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate.” (Punctuation and citations omitted.) Garrett v. State, 196 Ga. App. 872, 873 (1) (397 SE2d 205) (1990). “The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” Brogdon v. State, 255 Ga. 64, 67-68 (3) (335 SE2d 383) (1985).

In the instant case, the trial court’s conclusion that Cauley failed to meet the burden of proving that his attorney’s assistance was ineffective was correct. In addition to the fact that the attorney’s performance was not deficient, there was no showing that the alleged ineffectiveness prejudiced the outcome of the case. See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The record of the hearing on this claim established that the attorney’s investigation of the case was appropriate and that his trial strategy was reasonable and effective. See generally Reese v. State, 257 Ga. 624 (2) (361 SE2d 796) (1987).

“The burden is on the defendant to establish his claim of ineffective assistance of counsel. A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. The trial court’s finding in the instant case is not clearly erroneous.” Garrett, supra at 874. In fact, counsel was so successful that Cauley was acquitted on 16 of the 20 counts against him. It was not error to deny his motion for new trial on this ground.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.

Decided March 10, 1992.

Merritt & Rose, Charles P. Rose, Jr., for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.


author: Carley, Presiding Judge. Beasley, Judge,

text:
    A91A1471.
    SPIRES et al. v. KIM et al.
    (416 SE2d 780)
   Carley, Presiding Judge.

After their child was born with a congenital birth defect, appellant-plaintiffs, in their individual capacities and as next friends of their child, brought the instant tort action against appellee-defendants obstetrician and his professional corporation. In their individual capacities, appellants alleged a “wrongful birth” claim and, as the next friends of their child, they alleged a “wrongful life” claim. Appellants appeal from the order of the trial court granting appellees’ motion to dismiss for failure to state a claim.

1. Appellants alleged that they were deprived of the opportunity to abort their child by appellees’ negligent failure to conduct an additional sonogram and by appellees’ fraudulent failure to disclose that an additional sonogram had been recommended by other health care professionals. Although couched in terms of fraud, as well as negligence, these claims are for medical malpractice. “ ‘Wrongful birth’ and ‘wrongful life’ actions are both species of malpractice claims wherein relief is sought for allegedly negligent or intentional treatment or advice that has deprived the parents of the opportunity to abort a fetus and thereby avoid the birth of an impaired child. An action for ‘wrongful life’ is brought on behalf of an impaired child and alleges basically that, but for the treatment or advice provided by the defendant to its parents, the child would never have been born. An action for ‘wrongful birth’ is brought by the parents of an impaired child and alleges basically that, but for the treatment or advice provided by the defendant, the parents would have aborted the fetus, thereby preventing the birth of the child.” (Emphasis supplied.) Atlanta Ob. & Gyn. Group v. Abelson, 260 Ga. 711, 713 (398 SE2d 557) (1990). Our Supreme Court has held that “wrongful life” claims implicitly and “wrongful birth” claims explicitly “shall not be recognized in Georgia absent a clear mandate for such recognition by the legislature.” Atlanta Ob. & Gyn. Group v. Abelson, supra at 714. Subsequent to the Supreme Court’s decision on Abelson, no such clear mandate from the legislature -has been forthcoming. Accordingly, under the controlling precedent of the Supreme Court of Georgia, the trial court correctly dismissed the complaint for failure to state a claim upon which relief may be granted.

2. Although appellants urged below and now urge on appeal that the decision in Abelson is violative of their constitutional right of due process, that argument can, of course, be successfully advanced only in the Supreme Court because only that court is empowered to overrule that decision. The question thus becomes whether appellant’s advancement of this argument constitutes a viable predicate for transferring the instant case to the Supreme Court. In making that determination, it must be borne in mind that the Supreme Court “does not have jurisdiction of all constitutional questions, but only those which involve the construction of the Georgia and the United States Constitutions, or the constitutionality of state or federal laws.” Bowery Savings Bank v. DeKalb County, 239 Ga. 398, 399 (236 SE2d 757) (1977).

Appellants certainly do not raise any issue of constitutional construction. To the contrary, they contend that the United States Constitution has already been unambiguously construed insofar as their abortion rights are concerned and that the decision in Abelson is violative of that unambiguous construction. Thus, appellants do not seek a construction of any constitutional provision, but a reconstruction of the judicial decision in Abelson in light of certain constitutional provisions.

While the decision in Abelson may be the law of this state, it is not a state “law” so that the Supreme Court would have jurisdiction over any case wherein a constitutional challenge had been raised to its continued viability. See Maner v. Dykes, 183 Ga. 118, 121 (187 SE 699) (1936) (holding that, for purposes of jurisdiction in the Supreme Court, state “laws” are deemed to be only “enactments of the General Assembly”). Since appellants do not question the constitutionality of any state “law,” but merely urge that a judicial decision be overruled as contrary to certain constitutional provisions, jurisdiction would not be in the Supreme Court. “ ‘Jurisdiction is not vested in the Supreme Court merely because it is contended that an action or judgment is or would be contrary to some provision of the Constitution.’ [Cits.]” Aiken v. Richardson, 207 Ga. 735 (1) (64 SE2d 54) (1951).

The instant case is neither more nor less than a medical malpractice action and the constitutional provisions regarding the appeal of such a case could not be clearer. Medical malpractice actions and any other class of cases not otherwise enumerated in Art. VI, Sec. VI, Par. Ill are appealable to this court unless they fall within the ambit of Art. VI, Sec. VI, Par. II (1). If the Supreme Court had jurisdiction over the instant case pursuant to Art. VI, Sec. VI, Par. II (1), it would have jurisdiction over any and all cases not otherwise enumerated in Art. VI, Sec. VI, Par. Ill, based merely upon the invocation of a constitutional provision and the allegation that a prior opinion of the Supreme Court was, for some reason, violative of that constitutional provision. As noted, any contention that this court’s appellate jurisdiction can be evaded by such a loose construction of Art. VI, Sec. VI, Par. II (1) has long since been rejected. Appellants themselves have recognized and followed the applicable procedure for securing an appellate review of their case. They filed a timely notice of appeal to this court and have not requested a transfer of their case to the Supreme Court. Instead, they have acknowledged in their brief that Abelson “is binding upon this court [and that] these issues are appealed for purposes of perfecting the record on any Petition for Certiorari later filed.” This is, of course, the applicable procedure to be followed in any case wherein this court otherwise has jurisdiction and it is simply urged that controlling Supreme Court authority was wrongly decided. It is this court that has jurisdiction over this medical malpractice case and, in performance of our constitutional function, we hereby affirm the judgment based upon what we believe to be the controlling Supreme Court decision in Abelson. Under the constitution of this state, appellants can now seek a writ of certiorari on the ground that that Supreme Court decision should be overruled because it is violative of their due process rights.

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Cooper and Andrews, JJ., and Judge Arnold Shulman concur. Pope and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

I respectfully dissent. As to the constitutional claim, the majority rules that the due process ground must be advanced in the Supreme Court. I agree, but that means that the case should be transferred to the Supreme Court.

Plaintiffs raised a federal due process ground, in support of at least their wrongful birth claim, in the first brief below in opposition to the motion to dismiss. They also made an equal protection argument but did not identify it as such. In addition, they raised state and federal due process and equal protection grounds as to the medical malpractice claims and, if charitably construed, to the fraud claim, in their supplemental brief in opposition to the motion to dismiss, although they cited the wrong Georgia constitutional paragraph for the equal protection provision; it is in paragraph 2, not paragraph 1.

The trial court ordered dismissal of the entire complaint, sub silentio on the fraud count and as to the constitutional grounds; it refers only to Atlanta Ob. & Gyn. Group v. Abelson, 260 Ga. 711 (398 SE2d 557) (1990), as controlling.

Thus at least some of the constitutional grounds, minimally with respect to the medical malpractice claims, were raised and ruled on below. That makes them subject to appellate review. The Court of Appeals does not have jurisdiction to give that review because, although appellants are not challenging a statute as being unconstitutional, they are challenging the absence of a cognizable cause of action as being unconstitutional. The Supreme Court in Abelson refused to create a common law cause of action for wrongful birth, but it did not address the question of whether state or federal due process or equal protection would require the acknowledgment of such a cause of action even in the absence of statute. Appellee acknowledges that federal constitutional rights were not addressed by the Georgia Supreme Court in Abelson.

Of course, the Court did not rule that there was no common law cause of action for wrongful life, although in dicta it hinted that it would not create one. The third count, the claim of fraud, was not involved at all in the Abelson case.

This court would have to address the properly raised constitutional claims unless the phrase in Ga. Const., Art. VI, Sec. VI, Par. II (1), “[a] 11 cases involving the construction ... of the Constitution of the State of Georgia or of the United States ...” embraces the issues. The Supreme Court would have exclusive jurisdiction at least as to the wrongful birth claim, because plaintiffs are challenging on constitutional grounds the Supreme Court’s refusal to give legal cognizance to a claim for wrongful birth as a common law cause of action. The case should be transferred to it.

Maner v. Dykes, 183 Ga. 118, 121 (187 SE 699) (1936), is a case in which the constitutionality of a Public Service Commission rule was drawn into question. The court held that such was not a “law of the State of Georgia,” as that term was used in the 1916 Act amending the State Constitution with respect to appellate jurisdiction. Here the claim is that the lack of a statutory right of action violates the Federal Constitution, and that in the absence of such, the court is compelled to give common law cognizance to one.

It does not appear in Aiken v. Richardson, 207 Ga. 735 (64 SE2d 54) (1951), that appellant was challenging the constitutionality of the absence of a statutory right of action as here. The “plaintiff in error” in that case simply “attached certain orders or judgments of the trial court as being violative of stated provisions of the Constitution,” but the opinion does not disclose the grounds of that party’s challenge.

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

Decided February 20, 1992

Reconsideration denied March 11, 1992

William Q. Bird, for appellants.

Newton, Smith, Durden, Kaufold & McIntyre, Wilson R. Smith, for appellees.

       The majority opinion does not address the fraud count as a separate cause of action. It was presented by a First Amendment to Plaintiffs’ Complaint, pursued, dismissed by the court, and included in the appeal.

       Whether “a law,” as referred to in the 1983 Constitution of Georgia, Art. VI, Sec. VI, Par. II (1), has the same meaning as given by the Supreme Court to the 1916 amendment to the 1877 Constitution is not for us to say.