text:
    A97A0125.
    McTAGGART v. THE STATE.
    (483 SE2d 898)
   Eldridge, Judge.

Appellant, James David McTaggart, was tried on three counts of solicitation for murder. In Count 1, appellant was charged with soliciting Terry Haas on May 19, 1994, to murder Theresa Morris. In Count 2, appellant was charged with soliciting Terry Haas on May 19, 1994, to murder Nancy McTaggart. In Count 3, appellant is charged with soliciting Pat Richards on May 18, 1994, to murder Theresa Morris. Nancy McTaggart is appellant’s former wife, who had been after him about back child support and who had him tried and convicted of committing an aggravated assault upon her just prior to the incident in the case sub judice.

The incident in the case sub judice was precipitated upon appellant’s belief that Theresa Morris, with assistance and encouragement from Nancy McTaggart, burglarized his home, took some 45 rifles, shotguns, and pistols, and sold them in Alabama. Pat Richards, a friend that owed appellant money, was told by appellant that the debt would be forgiven and that he would be paid an additional $1,500 if he would kill Nancy McTaggart. Appellant gave Richards a loaded pistol and told him to commit the murder or appellant would kill him. Richards became frightened and called the police, who began an undercover operation using Detective Terry Haas as “Bo,” an alleged hit man from south Georgia. On May 24, 1994, Bo telephoned appellant and discussed carrying out the murders of the two women who had been placed in protective custody. During the tape-recorded conversation, appellant told Bo that he wanted them killed that day and wanted to have evidence that they were dead.

Bo called the next day to tell appellant that the murders were completed, that he had Polaroid photos of the bodies, and that he wanted the $2,500 promised for doing the murders. Appellant stated that he was leaving for Tennessee and would see him later. The police, from their surveillance, knew that appellant had not left town; the police became concerned that appellant would kill the women himself if he learned that they were still alive. They obtained an arrest warrant and took appellant into custody. After being given the Miranda rights, appellant agreed to talk to Detective John Mark Dawes and other detectives. After about 30 minutes of warmup questioning, the detectives tape recorded appellant’s responses to their questions, which tape was transcribed on August 11, 1994, and was 30 pages long.

Appellant was indicted on September 8, 1994. Plea and arraignment was held on October 10, 1994. Jury selection began for trial on February 28, 1995. The trial began on March 1, 1995. The verdicts of guilty on Counts 1 and 2 and not guilty on Count 3 were returned on March 3, 1995. On June 28, 1995, the appellant was sentenced to five years to serve on each count to run consecutively. Motion for new trial was filed on July 6, 1995. An amended motion for new trial was filed on February 12, 1996. The amended motion for new trial was heard and denied on February 13, 1996. Notice of appeal was filed on February 14, 1996.

1. The first enumeration of error is that the trial court abused its discretion in failing to grant a continuance of the trial date.

Appellant was arrested on a warrant on May 25, 1994. Appellant has been represented by defense counsel since May 26, 1994, when a release on bond was sought. Appellant was indicted on September 8, 1994, and was arraigned on October 10, 1994. The first notice of trial was filed on November 17 for trial calendars on November 28 and December 5, 1994. A defense conflict letter caused the case to be continued. On December 27, notice for trial calendars on January 9, 1995, was given, but this also was continued based upon a defense motion. By court order the case was set on February 16 for trial on the calendars for February 20 and 27, 1995. A defense motion for a continuance from the February 20 calendar was granted.

Although the prosecution had made extensive discovery disclosures on September 8, 1994, the prosecution made a supplemental discovery disclosure dated February 17, 1995, which was not received until February 21. Defense counsel orally moved at the calendar call of February 27 for yet another continuance because certain witnesses were out of town until March 2 and others could not be found; the defense contention was that the prosecution discovery was late so that the appropriate witnesses had to be called late. Defense counsel in this oral motion did not disclose the identities of all the witnesses; did not state that the witnesses were under subpoena; did not disclose the nature and substance of their testimony in order to demonstrate relevance and materiality; and did not state when these witnesses would, if ever, be available for trial. While denying the motion for a 30-day continuance, the court continued the case until Wednesday, March 1, the day before the witnesses that had been found were supposed to be available. Thereafter, the defense put only appellant up to testify, despite the fact that the defense case was not put on until Thursday, March 2, when even the out-of-town witnesses were supposed to be available.

OCGA §§ 17-8-20 and 17-8-22 require that defense counsel show due diligence when making application for a continuance and that the trial judge in the exercise of sound legal discretion shall grant or deny “as the ends of justice may require,” such continuance. Under OCGA § 17-8-25, certain criteria must be shown by the movant in obtaining a continuance based on the absence of witnesses. Appellant failed to make the proper showing. In this case, the witnesses were not under subpoena; there was no offer of proof made so that the trial judge could exercise his sound discretion in determining whether the evidence was relevant and material or merely cumulative or impeaching; and there was no showing that the witnesses were not absent with permission of counsel or that the witnesses would be available at the next trial term of court.

Further, defense counsel made no showing of due diligence in trial preparation or that they had conducted their own discovery, instead of relying solely upon the prosecution. See Mojica v. State, 210 Ga. App. 826 (437 SE2d 806) (1993); Davis v. State, 204 Ga. App. 657 (420 SE2d 349) (1992). Defense counsel failed to reveal that the witnesses had identities, that they were under subpoena, and that the witnesses were to testify as to relevant and material facts set forth in a proffer of proof. See Dorsey v. State, 203 Ga. App. 397 (416 SE2d 879) (1992); Hulett v. State, 150 Ga. App. 367 (258 SE2d 48) (1979). Counsel failed to show that he reasonably could expect to have the witnesses present in court without undue delay. Miller v. State, 208 Ga. App. 20 (430 SE2d 159) (1993).

Each of the statutory grounds for a continuance based upon an absent witness is absolute, so that the failure to substantially comply is a ground to deny a continuance. Curry v. State, 177 Ga. App. 609 (340 SE2d 250) (1986); Brown v. State, 169 Ga. App. 520 (313 SE2d 777) (1984); McNabb v. State, 69 Ga. App. 885 (27 SE2d 246) (1943). The trial court is entitled to know what relevant and material evidence the witness will prove in order to exercise discretion in ruling. Mell v. State, 69 Ga. App. 302 (25 SE2d 142) (1943); see also Wiggins v. State of Ga., 84 Ga. 488 (10 SE 1089) (1890); Griffin v. State of Ga., 26 Ga. 493 (1858). The testimony cannot be merely cumulative or impeaching, and the court must have the testimony proffered to establish that it is not. Daniel v. State, 180 Ga. App. 179 (348 SE2d 720) (1986). For the proffer to justify a continuance, it should appear that no other witness can provide such relevant and material evidence. Hill v. State, 91 Ga. 153 (16 SE 976) (1893). If the witness is the sole witness for the defense, then a continuance should be granted. Teat v. State, 181 Ga. App. 735 (353 SE2d 535) (1987).

In the case sub judice, absent a satisfaction of each of the statutory grounds, the trial judge did not abuse his discretion in denying a continuance. Garrett v. State, 202 Ga. App. 463 (414 SE2d 693) (1992). Moreover, this Court cannot find abuse in the trial court’s exercise of discretion when all of the statutory requirements have not been met, because the absence of any one of such conditions would justify the trial court’s denial. Vaughan v. State, 210 Ga. App. 381 (436 SE2d 19) (1993). Thus, we find that the trial court did not abuse its discretion in denying the continuance of trial.

2. The second enumeration of error is that the trial court erred in admitting evidence of prior difficulties between appellant and appellant’s wife, who was named in the indictment as one of the victims of the solicitation of murder charge.

Evidence of the prior difficulties between appellant and Nancy McTaggart is highly probative, i.e., relevant and material, for several reasons: first, it provides both a motive and intent to solicit her murder; second, it corroborates statements that appellant made publicly that he would not mind seeing her “bumped off”; third, it demonstrates identity and the capability to commit a violent crime against Nancy McTaggart, or any other woman that he hates, i.e., Theresa Morris; fourth, such prior course of conduct shows a violent habit or difficulties in his relationship with Nancy McTaggart; and fifth, such prior conduct and statements provide an explanation for appellant’s modus operandi in hiring a hit man so that he could establish an alibi, since he had threatened to kill McTaggart when he got out of jail for the prior aggravated assault conviction. Any of the foregoing reasons would be sufficient for such evidence to be admissible.

A hearing under Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991), on the prior similar offense of aggravated assault was held, during which the investigating officer described finding a bullet hole in the front door, arresting appellant, and having appellant state, “just wait, when I get out of jail, I’m going to kill her.” This admission against penal interest demonstrated a direct nexus between the aggravated assault charge and the solicitation for murder charge because appellant made the statement in retaliation for his arrest on the aggravated assault against Nancy McTaggart. Appellant knew he would be the prime suspect and would have to establish an alibi for the period of time when she was murdered; thus, his prior statement explained appellant’s motive, intent, and course of conduct, as well as his modus operandi.

In the case sub judice, the trial court did not give the prosecution the opportunity to state the reasons why the prior similar transaction was being tendered, but ruled the evidence admissible. The prosecution failed, at the Williams hearing, to articulate orally what it had done previously in written notice, i.e., state the proper purposes for the admission of the prior crime. At the close of the hearing, the trial court afforded the defense an opportunity to object, but the defense made no further general or specific objection to the court’s ruling; such objection was, therefore, waived. Skiver v. State, 213 Ga. App. 424, 425 (1) (444 SE2d 836) (1994); Kincer v. State, 208 Ga. App. 360, 361 (430 SE2d 597) (1993); Jackson v. State, 205 Ga. App. 513, 514 (422 SE2d 673) (1992); Hunter v. State, 202 Ga. App. 195, 196-197 (3) (413 SE2d 526) (1991).

However, even if this issue has been properly preserved, the court saw the obvious purposes for admission, went through a Williams determination on the record and stated “I am being presumptuous. . . . Am I to assume that you are seeking to introduce into evidence the similar transactions of which we just heard?” The prosecutor confirmed this and stated that he thought the court would allow him to state his reasons. The trial judge responded, “No, that’s satisfactory with the court, your statement to that affect.” The trial court then went on to conduct a Williams analysis, finding that: (1) the appellant committed the prior acts; (2) sufficient similarity existed between the independent offense and the offense charged so that proof of the former tended to prove the latter; and (3) any prejudice that resulted was outweighed by the probative value in the current trial. The trial court found that the Williams factors had been sufficiently established to admit evidence of the prior conduct. The prosecution confirmed that the court’s findings included the purpose asserted by the state and offered to make further tender if necessary, but the court declined. Defense counsel did not object to this procedure and stood mute.

At trial and during the hearing in the case sub judice, the state presented detailed evidence showing the nexus between the two crimes, that the former directly led to the latter, so that such evidence would be independent of the Williams analysis. Nevertheless, the Williams criteria was satisfied, not only at the hearing, but also at trial. While the procedure used by the trial court did not allow the prosecution to articulate, in its own words, the state’s reasons for introducing the prior similar crime, the prosecutor affirmed on the record, after the court articulated both the purpose for introduction and the Williams analysis, that the court’s rationale was why the prosecution sought introduction of such evidence. This procedure went forward without objection by the defense to the failure of the prosecution to state in its own words the purposes for introduction of the evidence and, had there been an objection timely made, the trial court would have allowed the prosecutor to state such reasons as the prosecution offered to do, instead of simply adopting the court’s rationale. The essential purpose of conducting the Williams analysis is to ensure that there exists a legitimate, probative purpose in introducing an independent criminal act and that there exists sufficient similarity to make the probativeness outweigh any prejudice as a consequence to injecting character into the case. The record demonstrates that everyone at the hearing knew the obvious reason for the introduction of this evidence; thus, the trial court anticipated the purpose, and the prosecutor merely agreed with the court. The defense stood mute. The rights of appellant were safeguarded, the essential purpose of a Williams hearing was met, and the decision of the trial court was correct to allow the evidence of the other crime into evidence.

This Court is aware that in Stephan v. State, 205 Ga. App. 241, 243-244 (2) (422 SE2d 25) (1992), we held that where the prosecutor introduces a similar transaction at trial in violation of the ten-day rule under Uniform Superior Court Rule 31.1, fails to state the purpose for which the evidence was admitted and the trial court instructs the jury on all permissible purposes, such combination of factors requires reversal. However, in Love v. State, 214 Ga. App. 351, 352 (1) (447 SE2d 698) (1994), we clarified such holding so that, when Williams has been complied with in a USCR 31.3 (B) hearing, the trial court has made a determination of admissibility, and a limiting instruction specifies the legitimate purpose or purposes for which the jury may consider the prior similar crime, under such circumstances there is no error in a broader jury charge which encompasses multi-purposes.

The trial court in the case sub judice, at the request of defense counsel, charged the jury “for the purpose of illustrating, if it does so illustrate, intent, guilty knowledge, motive, method or scheme of operation and it is not to be considered for any other purpose.” The defense made no objection to this limiting instruction and did not reserve the right to object later. In the case sub judice, unlike the facts and circumstances of Stephan, supra, there exists all of the purposes set forth in the charge, with supporting evidence, so that the evidence was admissible for any one or all purposes to be considered by the jury.

Moreover, the purposes for the introduction of such evidence were known to the defense since October 19, 1994. Such written notice stated that the proper purposes were “to show course of conduct, scheme, bent of mind, and motive,” which were supported by evidence, not only at the hearing, but also at trial. The Supreme Court in Matula v. State, 264 Ga. 673, 675 (3) (449 SE2d 850) (1994) held that substantial compliance with the purposes of Williams is all that is required when there has been notice as to a proper purpose, evidence, hearing, and a judicial determination of the admissibility. Accord Harris v. State, 222 Ga. App. 52, 53-54 (2) (473 SE2d 232) (1996); White v. State, 213 Ga. App. 429, 430-431 (1) (445 SE2d 309) (1994). Thus, for all of these reasons above, there was no error in the instant case.

This Court notes that, although the parties argue this issue under a Williams analysis, the facts and circumstances of this case require that an analysis be made, not under Williams as a prior similar transaction, but under Maxwell v. State, 262 Ga. 73, 74-75 (2) (414 SE2d 470) (1992), as prior difficulties between the parties where the issue is not similarity with an independent crime, but the existence of a nexus between the prior conduct and the subsequent crimes, between the same people, arising from their difficulties with each other. USCR 31.3 (B) applies to a Maxwell analysis and was fully satisfied in this case, because the trial court made a judicial determination that the prior aggravated assault, death threat, and physical assault which was committed in order to induce a withdrawal of the charge of aggravated assault had a probative connection with the instant crime of solicitation to murder the same victim. Cooper v. State, 256 Ga. 234, 235 (347 SE2d 553) (1986). These quarrels, threats, and the assault, continuing up to the present offense, “may shed some light upon the motive for the homicide and may, therefore, be admissible.” Maxwell, supra at 75; see also Gunter v. State, 243 Ga. 651, 656 (256 8E2d 341) (1979). Under Maxwell, supra, the focus of the analysis is not necessarily on the similarity of the crimes against the victim by the perpetrator, but is, essentially, the connectedness of the crimes and parties so that proof of the former tends to prove the latter. Chastain v. State, 260 Ga. 789, 790-791 (3) (400 SE2d 329) (1991); Harris v. State, supra at 54. Under Maxwell, supra, the proper purpose for the introduction of a prior difficulty between the parties must be, at a minimum, “motive,” but there may be other proper purposes as well. If an independent criminal act does not arise between the parties, then it would have to come under Williams, supra. However, unlike similar transactions, prior difficulties between the parties are not independent acts or occurrences, but are connected acts or occurrences arising from the relationship between the same people involved in the prosecution and are related and connected by such nexus. See Rainwater v. State, 256 Ga. 271, 272 (1) (347 SE2d 586) (1986); Mitchell v. State, 254 Ga. 353, 355 (5) (b) (329 SE2d 481) (1985); see also Stewart v. State, 263 Ga. 843, 847-850 (440 SE2d 452) (1994) (Hunt, P. J., dissenting).

Finally, we note that it has long been the law in this state that “if evidence is duly admissible under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evidentiary theories.” Boatright v. State, 192 Ga. App. 112,116 (6) (385 SE2d 298) (1989). Thus, if a trial court holds a hearing outside the presence of the jury and finds that evidence of prior criminal conduct is directly probative of and related to any issue in the case, then it would be admissible, although it does not satisfy the connectedness requirement of Maxwell or the similarity requirement of Williams', if the evidence is admissible under any legitimate evidentiary theory, then it comes into evidence as an exception to the general rule regarding the character of the defendant. See Satterfield v. State, 256 Ga. 593, 598 (351 SE2d 625) (1987); Spurlin v. State, 228 Ga. 2, 5 (4) (183 SE2d 765) (1971); Campbell v. State, 215 Ga. App. 14 (449 SE2d 366) (1994); Owen v. State, 202 Ga. App. 833, 835 (415 SE2d 537) (1992); Chambers v. State, 201 Ga. App. 245, 246 (410 SE2d 771) (1991), rev’d on other grounds, 262 Ga. 200 (415 SE2d 643) (1992); Boatright v. State, supra at 116; Simmons v. State, 186 Ga. App. 886 (369 SE2d 36) (1988). In the case sub judice, the evidence about which appellant complains was not just a prior difficulty between the parties, but was part of the cause of the conduct that led directly to the offense for which appellant was charged. Thus, it was admissible. Burger v. State, 242 Ga. 28, 32 (247 SE2d 834) (1978); Spurlin, supra at 5; Presley v. State, 177 Ga. App. 611, 614 (340 SE2d 253) (1986).

In the case sub judice, the requirements of Maxwell, supra, had been fully satisfied, and the trial court did not err in the admission of such testimony regarding the prior difficulties between the parties under any other evidentiary theory.

3. The third enumeration of error is that the trial court erred in admitting appellant’s custodial statement when it had not been timely delivered to the defense in response to a proper written request.

This case was docketed prior to January 1, 1995, the effective date of the repeal of the prior criminal discovery act; this Court has applied the repealed OCGA § 17-7-210 to such cases. See Livingston v. State, 222 Ga. App. 298 (474 SE2d 1) (1996); Holland v. State, 221 Ga. App. 821 (472 SE2d 711) (1996); Matthews v. State, 221 Ga. App. 129 (470 SE2d 518) (1996).

OCGA § 17-7-210 (b) states that the prosecution shall provide “all relevant and material portions of the defendant’s statement” if oral, or partially oral, upon timely written request. Where a reasonable and fair summary is timely provided to the defense, such summary will satisfy the requirements of the statute. Lewis v. State, 183 Ga. App. 41 (357 SE2d 862) (1987); Johnson v. State, 177 Ga. App. 705 (340 SE2d 662) (1986); see also Van Kleeck v. State, 250 Ga. 551 (1) (299 SE2d 735) (1983). Such written summary must fairly cover all “relevant and material portions of defendant’s statement” both as to incriminatory matters, exculpatory matters, or impeachment by contradictory matters. Reed v. State, 163 Ga. App. 364, 365 (295 SE2d 108) (1982). “The purpose of the discovery statute (OCGA § 17-7-210) is to inform the defendant in writing of all relevant and material portions of his own statement that the State may rely upon to the defendant’s disadvantage.” Lewis v. State, supra at 42; accord Bowe v. State, 201 Ga. App. 127, 129 (2) (410 SE2d 765) (1991). Unlike the facts in Holland v. State, supra, in the case sub judice, the five-page summary provided to the defense on September 21, 1994, of the May 24, 1994 custodial interview fairly summarized all of the “relevant and material” portions of the tape-recorded interview, which comprised 30 pages. The prosecution mailed to the defense a copy of the transcript dated February 17, 1995, but it was not received by the defense until February 21. The tape in its entirety was played for the jury. The trial court heard extensive argument as to whether or not the entire transcript was delivered the requisite ten days prior to trial. However, such matter is irrelevant, because a fair summary of all “relevant and material” portions of the custodial statement of appellant had been provided on September 21, 1994, so that the delivery of the actual transcript prior to trial was not required by the statute, with which the prosecution had already complied in a timely manner. Further, appellant fails to point to any portion of the transcript as being relevant and material which was not contained in the summary.

The prosecution timely satisfied OCGA § 17-7-210 by providing the summary, so that the defense was adequately warned in advance that the state would use his statement to his disadvantage. The trial court did not err in allowing the custodial statement of appellant to be introduced into evidence.

4. The fourth enumeration of error is that the trial court erred in denying appellant’s request to charge the jury on the law of “attempt” as a lesser included offense of the crimes charged in the indictment.

OCGA § 16-4-7 (a) states that “[a] person commits the offense of criminal solicitation when, with intent that another person engage in conduct constituting a felony, he solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.”

The Supreme Court, in State of Ga. v. Davis, 246 Ga. 761, 762-763 (2) (272 SE2d 721) (1980), construed this statute to mean, that “only a relatively overt statement or request intended to bring about action on the part of another person will bring a defendant within the statute. Furthermore, in light of our holding . . . that the statute only embraces language which creates a clear and present danger that a felony will be committed, the phrase 'or otherwise attempts to cause such other person to engage in such conduct’ is construed as meaning ‘or otherwise creates a clear and present danger of such other person perpetrating a felony.’ ”

The evidence at trial shows that all of the elements of the crime of solicitation to murder had been shown. See Meadows v. State, 190 Ga. App. 662, 663 (1) (380 SE2d 326) (1989); see also Norris v. State, 176 Ga. App. 164, 167-168 (6) (335 SE2d 611) (1985). The crime of solicitation is complete when the accused with intent, mens rea, engages in the overt act of asking another to commit a felony, actus reus. There exists no lesser criminal offense, either in law or in fact, such as attempt to solicit a felony. See Shuler v. State, 195 Ga. App. 849 (1) (395 SE2d 26) (1990); Weaver v. State, 176 Ga. App. 639, 640-641 (3) (337 SE2d 420) (1985).

The trial court did not err in refusing to charge on criminal attempt to solicit to murder, which charge is not supported in law or fact.

5. The fifth enumeration of error is that the trial court erred in sua sponte responding to the jury’s request to send them copies of the charges by stating that he would be unable to do so without first informing appellant of the jury’s question and the court’s proposed reply.

When counsel and appellant returned to the courtroom for a recharge, the trial court informed defense counsel of the earlier note and the court’s response. Defense counsel did not make an objection to such communication at the earliest opportunity and raises such issue for the first time on appeal. Thus, such alleged error was waived, and we will not consider it. Johnson v. State, 254 Ga. 591, 596-597 (5) (331 SE2d 578) (1985); see also Williams v. State, 251 Ga. 749, 797-798 (11) (312 SE2d 40) (1983); Warner v. State, 232 Ga. 523, 525-526 (1) (207 SE2d 466) (1974).

6. The sixth enumeration of error was that the trial court failed to recharge the jury, upon request by the defense, with an instruction on the law of criminal intent which included language that the appellant was not presumed to have acted with criminal intent.

Decided March 11,1997.

Daniel L. Henderson, for appellant.

Upon request by the jury, the court recharged the jury, twice, on the essential element of intent. Defense counsel requested that the court recharge the jury that the defendant should not be presumed to act with criminal intent. The trial court refused to give such additional charge. In the original charge to the jury, the trial court gave the following instructions to the jury: “This defendant will not be presumed to have acted with criminal intent. But you may find such intent or the absence thereof upon a consideration of words, conduct, demeanor, motive, and other circumstances connected with the act for which the accused is being prosecuted.”

This Court, in Miller v. State, 221 Ga. App. 718 (472 SE2d 697) (1996), held that there was no error on recharge when the trial court refused to recharge in the same language requested by appellant, after a charge that the defendant shall not be presumed to act with criminal intent. There, as in the case sub judice, the original charge contained such language.

Grimes v. State, 199 Ga. App. 152, 153 (2) (404 SE2d 324) (1991), is distinguishable on the facts, because the jury asked for a recharge on the possible verdicts which included several charges as well as lesser included offenses, and the trial court, in giving the full range of possible guilty verdicts, failed to include the possibility of a not guilty verdict, which was tantamount to a direction to the jury to find the defendant guilty. See Miller v. State, supra.

“The need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial judge.” Peebles v. State, 260 Ga. 165, 167 (5) (a) (391 SE2d 639) (1990). “When the jury requests a charge or recharge on a particular point, the trial court has discretion to also give or not give additional instructions.” Patterson v. State, 264 Ga. 593, 594 (2) (449 SE2d 97) (1994). “In determining whether the recharge contained error, it is fundamental that we must look at not only the recharge but the original charge as well, as jury instructions must be read and considered as a whole in determining whether the charges contain error.” Taylor v. State, 195 Ga. App. 314, 315 (1) (393 SE2d 690) (1990); see Hambrick v. State, 256 Ga. 688, 690 (3) (353 SE2d 177) (1987).

A review of the charge and recharge demonstrates that the trial court did not abuse its discretion, and we so find.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

Thomas J. Charron, District Attorney, Nancy I. Jordan, Debra H. Bernes, Ann B. Harris, Assistant District Attorneys, for appellee.

       Since the analysis is similar, then there was no harm to appellant, because the Williams analysis is far stricter than under Maxwell.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A97A0198.
    HOLLIS v. THE STATE.
    (484 SE2d 54)
   Smith, Judge.

Paul James Hollis, Jr. was convicted on charges of attempted rape, OCGA §§ 16-6-1, 16-4-1; simple battery, OCGA § 16-5-23 (a) (2); and criminal trespass, OCGA § 16-7-21 (b) (3). His motion for new trial was denied, and he appeals.

1. Hollis asserts the general grounds with respect to his conviction for attempted rape. Construed to support the verdict, the evidence presented showed that Hollis approached the victim at her home while she was unloading laundry from her car, entered on the pretext of using the telephone, and ripped the telephone off the wall. He threw the victim to the floor, tore and attempted to rip off her clothes, bit her on the thigh, and kicked and beat her while repeatedly describing the explicit sexual acts, including rape, that he intended to perform on her. The victim struggled, inflicting scratch wounds on Hollis’s face, arms, and neck; she eventually escaped to a nearby convenience store. The police escorted her back to her home, where Hollis was discovered hiding in the bushes. He fled but was apprehended a short distance away, and the victim positively identified him at the scene. His face and neck were extensively scratched.

The elements of the crime of attempted rape are that the accused “(1) intended to have forcible and non-consensual carnal knowledge of the victim; and (2) took a substantial step toward committing rape; but (3) failed to consummate the rape. OCGA §§ 16-4-1, 16-6-1; McGinnis v. State, 183 Ga. App. 17, 18 (358 SE2d 269) (1987).” Lumsden v. State, 222 Ga. App. 635, 637 (4) (475 SE2d 681) (1996). Hollis suggests that we should believe his version of the encounter in preference to that given by the victim, but this Court has no authority to do so. "On appeal of a criminal conviction, the appellant is no longer indulged with the presumption of innocence, for the jury has rendered its verdict; we do not weigh the evidence or determine the [witnesses’] credibility but construe the evidence to uphold the verdict. Thus, we only determine whether the evidence is such as to enable any rational trier of fact to find the defendant guilty of the crime charged beyond a reasonable doubt.” (Citation omitted.) Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2d 377) (1990), aff’d, 261 Ga. 311 (404 SE2d 787) (1991). We find that a rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of attempted rape under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Lumsden, supra; Mathis v. State, 184 Ga. App. 455, 456-457 (1) (361 SE2d 856) (1987); Helton v. State, 166 Ga. App. 662, 663 (1) (305 SE2d 592) (1983).

2. In his second enumeration, Hollis contends the trial court improperly excluded evidence of a charge of simple battery against the victim that was pending at the time of trial. We disagree. This evidence could not be used to impeach the victim with proof of her bad character because evidence of specific acts is not the proper method of doing so. Kennard v. State, 180 Ga. App. 522 (1) (349 SE2d 470) (1986). While a witness may be impeached by showing conviction of a crime involving moral turpitude, this evidence was improper for three reasons: Hollis failed to present record evidence rather than testimony, simple battery is not a crime involving moral turpitude, and the evidence here showed merely an arrest. “Even competent proof of an offense not involving moral turpitude, or incompetent proof of an offense involving moral turpitude, such as a mere indictment or a charge or an arrest or a trial and acquittal, are not legal methods of impeachment.” (Citations and punctuation omitted.) Syfrett v. State, 210 Ga. App. 185, 187 (4) (435 SE2d 470) (1993).

Chandler v. State, 261 Ga. 402, 407 (3) (b) (405 SE2d 669) (1991), though not cited by Hollis, allows the admission of evidence of violent acts by the victim against third persons under certain limited circumstances. Such evidence, however, is admissible only if, among other requirements, the defendant claims justification as a defense. Id.; see OCGA § 16-3-20. Hollis testified at trial, but he never made any claim amounting to justification. He did not contend, for example, that the victim attacked him or that he struck and kicked her as the result of provocation. He claimed instead that they met at a gas station and drank beer together, she invited him in to her home to drink more beer, then “started screaming on [him]” and falsely accused him of trying to rape her. He denied having struck her, and he contended the scratches and marks on his body were from his work as a tree surgeon or from running into a barbed wire fence rather than injuries inflicted by the victim. Under these circumstances, Hollis cannot rely upon the rule established in Chandler.

3. Finally, Hollis alleges ineffective assistance of trial counsel in several respects. “In analyzing a claim of ineffective assistance of counsel, we note at the outset that a trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. [A defendant] must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. To establish ineffective assistance of counsel, a'defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel.” (Citations and punctuation omitted.) Williams v. State, 218 Ga. App. 785, 788 (3) (463 SE2d 372) (1995).

Hollis first complains that his trial counsel failed to object to a witness’s testimony regarding a statement made by Hollis. During his account of the arrest, the arresting officer volunteered that Hollis attributed the scratches on his body to a fight with another woman. This statement was not previously disclosed to Hollis’s counsel under the reciprocal criminal discovery provisions of OCGA § 17-16-4 (a) (1). Assuming without deciding that this testimony violated the discovery statute, the trial court’s decision that counsel’s failure to object did not affect the jury’s verdict is not clearly erroneous. As noted above, Hollis attributed scratches at one point to his work as a tree surgeon and at another point to a barbed wire fence. Hollis’s brother, however, while testifying on Hollis’s behalf, stated that he had no marks on his face or neck before the incident. The unrevealed statement was therefore merely cumulative of already conflicting testimony, and we cannot conclude as a matter of law that a reasonable probability exists that the jury would have reached a different verdict had counsel objected. See Strong v. State, 264 Ga. 837, 838-839 (3) (452 SE2d 97) (1995). Moreover, trial counsel testified that his failure to object or move for a mistrial was a strategic decision calculated to minimize the negative effect of the officer’s testimony. While Hollis “may now disagree with some of the tactical or strategic choices made by counsel during trial, such disagreements do not equate with inadequacy. [Cit.]” Cofield v. State, 216 Ga. App. 623, 627 (5) (455 SE2d 342) (1995).

Hollis also asserts that trial counsel was ineffective in failing to conduct a “thorough cross examination of the victim and police.” Trial counsel testified, however, that he conducted cross-examination of the State’s witnesses in accordance with his theory of the case, seeking to establish those facts which he thought most beneficial to Hollis. Counsel also testified that he was particularly cautious in cross-examining the victim because of the risk of appearing to berate or abuse her. Such decisions regarding the scope and focus of cross-examination provide perhaps the clearest example of tactical and strategic decisions on the part of trial counsel.

Finally, Hollis contends that trial counsel was ineffective in failing to call witnesses who might have bolstered his account of the incident. But on his motion for new trial, Hollis failed to support his claims with any testimony, affidavits, or proffer of the testimony of the witnesses. When a defendant fails to show what prospective witnesses’ testimony would be or that they would have agreed to testify if subpoenaed, it is impossible “to determine whether failure to call these witnesses would have indeed affected the outcome of [Hollis’s] trial.” Goodwin v. Cruz-Padillo, 265 Ga. 614, 616 (458 SE2d 623) (1995). Hollis must offer more than mere speculation that “other witnesses . . . may have had evidence which would have assisted Mr. Hollis’ case at trial.”

Decided March 11,1997.

Clarke & Pelletier, Alan S. Clarke, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Thomas A. Cole, Nancy I. Jordan, Assistant District Attorneys, for appellee.

In denying Hollis’s motion for new trial, the trial court concluded that trial counsel was not ineffective and that there was no reasonable probability the jury would have reached a different verdict. We do not find this conclusion to be clearly erroneous.

Judgment affirmed.

Beasley, J., and Senior Appellate Judge Harold R. Banke concur.


author: Birdsong, Presiding Judge.

text:
    A97A0341.
    CONTROLLED BLASTING, INC. v. RANGER INSURANCE COMPANY.
    (484 SE2d 47)
   Birdsong, Presiding Judge.

Appellant Controlled Blasting, Inc. (CBI) appeals from the order of the superior court granting appellee/insurer Ranger Insurance Company’s motion for summary judgment and denying the summary judgment motion of appellant. Appellant contends that the trial court erred in holding that coverage was specifically excluded under Section I, Coverage A, Section 2, Subparagraph m of the insured appellant’s comprehensive general liability policy.

CBI was insured by Ranger under two comprehensive general liability policies in effect from April 1, 1992 to April 1, 1993 and from April 1, 1993 to April 1, 1994, respectively. CBI filed suit in superior court seeking a declaratory judgment that these policies provided coverage and indemnification against the claims of Don Moorhead Construction, Inc. as to a counterclaim filed by Moorhead in a separate action brought by CBI in the state court.

In early 1993, Moorhead subcontracted with CBI to remove rock lying in a sewer bed at the project site. CBI attempted to remove the rock using a product known as ANFO, an ammonium nitrate-based compound which after being inserted into a container was called a Samson Pak. At all times relevant to this lawsuit, the Samson Pak was manufactured and used by CBI. The Samson Pak was designed to allow ANFO and other explosives to be used in a “wet hole”; that is, to allow the use of explosives under conditions otherwise too wet for their effective use.

In the state court action, CBI sought recovery from Moorhead of certain sums which it contends were due and owing for drilling and blasting services performed for Moorhead on a certain sewer relief project. Moorhead counterclaimed against CBI asserting a breach of subcontract causing Moorhead to resequence and accelerate its work and compelling it to take certain other ameliorable actions. Moor-head specifically asserts that the ANFO used by CBI did not break any of the rock where it was used. CBI apparently contends that if its blasts did not break the rock, it would go back and reshoot; however, it could not continue on the project without the assurance that it would be paid.

During discovery in the state court action, Mr. Moorhead testified thát the “bulk” of its complaint against CBI was that the ANFO/ Samson Pak product did not work under the conditions encountered at the project site. CBI here asserts that, during discovery, it first learned that Moorhead’s claims were based primarily on the contention that CBI’s product did not perform as it should have and failed to break rock as necessary on the project site. Concluding that Moor-head’s counterclaim was primarily based on an alleged product failure, and having products-completed operations hazard insurance coverage, CBI notified its insurer, Ranger. Ranger declined to defend CBI as to the counterclaim and denied that the incident was covered under the terms of the general liability policies in view of its policy exclusion regarding unintended blasting.

The trial court granted appellee’s motion for summary judgment and denied appellant’s motion after finding that “coverage is specifically excluded under Section I, Coverage A, Section 2, Subparagraph m of the general liability policy at issue in this matter.” Held:

1. The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

2. Section I, Coverage A, Section 2, Subparagraph m of the applicable policy provides: This insurance does not apply to: “m. ‘Property damage’ to ‘impaired property’ or property that has not been physically injured, arising out of: (1) A defect, deficiency, inadequacy or dangerous condition in ‘your product’ or ‘your work’; or (2) A delay or failure by you or anyone acting on your behalf to perform a contract or agreement in accordance with its terms. This exclusion does not apply to the loss of use of other property arising out of sudden and accidental physical injury to ‘your product’ or ‘your work’ after it has been put to its intended use.”

An insurance policy is governed by the ordinary rules of contract construction. Southern Guaranty Ins. Co. &c. v. Goddard, 259 Ga. 257, 259 (379 SE2d 778); see generally Park ’N Go &c. v. U. S. Fidelity &c. Co., 266 Ga. 787, 791 (471 SE2d 500); Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308) (three-step process of contract construction); Duffett v. E. & W. Properties, 208 Ga. App. 484, 486 (2) (430 SE2d 858); American Southern Ins. Co. v. Golden, 188 Ga. App. 585, 586 (373 SE2d 652). We will examine the trial record and resolve appellant’s enumeration of error in light of the above legal principles.

“The policy involved in this case is a standard comprehensive general liability policy used extensively throughout the country.” Elrod’s Custom Drapery &c. v. Cincinnati Ins. Co., 187 Ga. App. 670 (371 SE2d 144). The “ ‘ “purpose of this comprehensive liability insurance coverage is to provide protection for personal injury or for property damage caused by the completed product, but not for the replacement and repair of that product.” ’ ” (Citations and punctuation omitted.) Id.

Moreover, the counterclaim, as amended, did not place appellee on reasonable notice, as required by notice pleading requirements of the Civil Practice Act (see generally Wade v. Polytech Indus., 202 Ga. App. 18, 21 (2) (413 SE2d 468)), of any claim for damages grounded in tort; rather, the counterclaim provided reasonable notice only of an averred breach of contract claim based on faulty workmanship. “The allegations of the complaint filed against [appellee] provide the basis for determining whether liability exists under the terms of the policy.” Glens Falls Ins. Co. v. Donmac Golf&c. Co., 203 Ga. App. 508 (417 SE2d 197), citing Great American Ins. Co. v. McKemie, 244 Ga. 84, 85-86 (259 SE2d 39). “[T]he correctness of an insurer’s decision to defend or not cannot be determined by ‘later-revealed facts’ of which the insurer has no knowledge or notice.” Id. at 85.

In Glens Falls, the policy at issue contained certain business risk exclusions — one of which was substantially similar to the exclusion contained in Section I, Coverage A, Section 2, Subparagraph m of the general liability policy in this case. Although Glens Falls, supra, is distinguishable from this case and not controlling as to its disposition, certain principles discussed therein are relevant to our holding. Specifically, the contractor bears the business risk “to replace or repair defective work to make the . . . project conform to the agreed contractual requirements. This type of risk is not covered by the [comprehensive general liability] policy, and the ‘business risk’ exclusions in the policy make this clear.” Id. at 511. “The coverage (applicable under the [comprehensive general liability] policy) is for tort liability for . . . (injury to persons and damage to other property) and not for contractual liability of the insured for economic loss because the product or completed work is not that for which the damaged person bargained.” (Citations omitted; emphasis supplied.) Id.

The counterclaim, as amended, gave reasonable notice only of a claim grounded on faulty workmanship. “Because all the damages sought in this action . . . arise exclusively from faulty workmanship and not from some insurable event as defined in the policy, we find that appellee properly denied coverage, and the trial court properly granted appellee’s motion for summary judgment.” Elrod’s Custom Drapery, supra at 671. It is well established that a grant of summary judgment must be affirmed if it is right for any reason. Newsome v. Dept. of Human Resources, 199 Ga. App. 419, 423 (3) (405 SE2d 61).

Decided March 11,1997.

Greer, Klosik & Daugherty, Jeffrey F. Leasendale, for appellant.

Philip M. Casto, for appellee.

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


author: Johnson, Judge.

text:
    A97A0392.
    A97A0400, A97A0499.
    DeKALB COUNTY v. GENUINE PARTS COMPANY. DeKALB COUNTY v. ATLANTA MOTOR LINES; and vice versa.
    (484 SE2d 57)
   Johnson, Judge.

Genuine Parts Company, a Georgia corporation, owns a fleet of trucks and trailers which, through one of its divisions, regularly travel throughout the United States distributing auto parts. Atlanta Motor Lines, Inc. is also a Georgia corporation which operates a fleet of motor common carriers with terminals throughout the southeastern United States. Genuine Parts and Atlanta Motor Lines brought suit against DeKalb County seeking refunds, pursuant to OCGA § 48-5-380, of ad valorem taxes paid on the vehicles. Genuine Parts seeks a refund for the 1993 and 1994 tax years; Atlanta Motor Lines seeks a refund for 1993, 1994 and 1995. Genuine Parts and Atlanta Motor Lines (“appellees”) assert they are entitled to refunds because the vehicles acquired tax situses in states other than Georgia and should not have been subject to the unapportioned value of the vehicles assessed by and paid to DeKalb County.

The trial court granted appellees’ motion for partial summary judgment allowing them to proceed under the refund statute for the 1993 and 1994 tax years only, but reserving the issue of entitlement to apportionment for determination at trial. DeKalb County appeals, asserting that appellees, having failed to follow the appeal procedures provided by OCGA § 48-5-311, are barred from proceeding under OCGA § 48-5-380. We agree.

Case Nos. A97A0392 and A97A0400

1. Because these appeals are identical, we will treat DeKalb County’s appeal from the ruling permitting Genuine Parts to proceed under OCGA § 48-5-380 (Case No. A97A0392) and the ruling permitting Atlanta Motor Lines to proceed under the same statute (Case No. A97A0400) together. In its order granting partial summary judgment to appellees, the trial court pointed out that the Georgia Supreme Court of Georgia’s ruling in East West Express v. Collins, 264 Ga. 774 (449 SE2d 599) (1994), clarified the procedure for obtaining apportionment of ad valorem taxes, and found that appellees’ claim for a refund falls within one of the exceptions set out in Gwinnett County Bd. of Tax Assessors v. Gwinnett I Limited Partnership, 265 Ga. 645 (458 SE2d 632) (1995). DeKalb County argues that East West did not change existing law and that the trial court erred in finding that appellees’ claim for a refund falls within one of the exceptions in Gwinnett County. We agree.

In East West Express, supra, the Supreme Court of Georgia considered whether OCGA §§ 48-5-442 through 48-5-445 and OCGA § 48-5-471 provided for apportionment of ad valorem taxes on motor vehicles engaged in interstate commerce. The Court noted that while those provisions of the Georgia Code did not expressly provide for apportionment of ad valorem taxation of motor vehicles, as did statutes relating to other types of property used in interstate commerce such as aircraft and railroad cars, neither did the statutes expressly prohibit such apportionment, and upheld the constitutionality of the Georgia scheme. The Court observed that an appeal procedure for challenging assessed valuation of motor vehicles already existed in OCGA § 48-5-311, concluding that “the owner of a motor vehicle used in interstate commerce may obtain apportionment of ad valorem taxes on such a motor vehicle by demonstrating to the local taxing authority, in the course of an appeal under OCGA § 48-5-311 challenging the assessed value of the vehicle, that the motor vehicle has acquired a tax situs in one or more other states.” East West Express, supra at 777 (2). The decision in East West Express did not change the law in Georgia which had never prohibited the challenging of an unapportioned local ad valorem assessment of a vehicle engaged in interstate commerce. As the Court pointed out, “the U. S. Supreme Court has ruled that the Due Process and Commerce Clauses of the United States Constitution require that ad valorem tax on property engaged in interstate commerce must be apportioned if the taxpayer bears its burden of demonstrating that its property has acquired a tax situs in another state ([cit.]).” Id. at 775 (l). The East West Express case unquestionably clarified Georgia law in this area, but we have no reason to believe that, prior to that decision, companies regularly engaged in interstate commerce, or the tax consultants hired by them, were unaware that these assessments may have been entitled to apportionment.

In Gwinnett County, supra, the Supreme Court examined the differing legislative purposes of OCGA § 48-5-311, “to provide the most expeditious resolution of a taxpayer’s dissatisfaction with an assessment,” and OCGA § 48-5-380, which “protects] taxpayers from later-discovered defects in the assessment process which have resulted in taxes being ‘erroneously or illegally assessed and collected.’ ” Id. at 646. The Supreme Court then differentiated “erroneous or illegal” taxes within the contemplation of the refund statute from those claims for refunds based on an assertion that the assessors, although using correct procedures, did not take into account factual matters which should have been considered. “A claim based on mere dissatisfaction with an assessment, or an assertion that the assessors, although using correct procedures, did not take into account matters which the taxpayer believes should have been considered (e.g., different comparable sales for the purpose of establishing value), is not, however, one which asserts that an assessment is erroneous or illegal within the meaning of § 48-5-380.” Id. at 647. DeKalb County argues that appellees failed to inform the county of the interstate use of the vehicles, a matter which it would have taken into account in determining the taxes assessed. This is precisely the type of challenge which cannot be asserted in an action for a refund.

In addition to challenging the unapportioned assessment under OCGA § 48-5-311, Georgia law provides other avenues of review available to an aggrieved taxpayer challenging the validity of a tax prior to remittance of taxes. However, appellees failed to pursue any of these avenues. See James B. Beam Distilling Co. v. State of Ga., 263 Ga. 609 (437 SE2d 782) (1993). We conclude that the trial court erred in allowing appellees to proceed under OCGA § 48-5-380 for a refund of a portion of the ad valorem taxes they paid on motor vehicles in 1993 and 1994.

Decided March 11,1997

Jonathan A. Weintraub, Joan F. Roach, Howard W. Indermark, for DeKalb County.

Smith, Gambrell & Russell, John A. Blackmon, Edward H. Wasmuth, Jr., Arthur B. Seymour, for Genuine Parts Company and Atlanta Motor Lines.

Case No. A97A0499

2. In Case No. A97A0499, Atlanta Motor Lines appeals from the denial of its motion for partial summary judgment regarding its entitlement to a refund of a portion of the 1995 ad valorem taxes paid. For the reasons articulated in Division 1, the trial court correctly denied Atlanta Motor Lines’ motion for partial summary judgment.

Judgment affirmed in Case No. A97A0499. Judgments reversed in Case Nos. A97A0392 and A97A0400.

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

       Even if the Supreme Court of Georgia had found the scheme for assessing ad valorem taxes on motor vehicles unconstitutional, Genuine Parts’ claim for a refund would still not he assured. See James B. Beam Distilling Co. v. State of Ga., 263 Ga. 609, 614 (7) (437 SE2d 782) (1993); Reich v. Collins, 263 Ga. 602 (437 SE2d 320) (1993).

       “[T]angible property for which no tax situs has been established elsewhere may be taxed to its full value by the owner’s domicile. . . . [T]he burden is on the taxpayer who contends that some portion of its total assets are beyond the reach of the taxing power of its domicile to prove that the same property may be similarly taxed in another jurisdiction.” (Citations omitted.) Central R. Co. &c. a Pennsylvania, 370 U. S. 607, 612-613 (82 SC 1297, 8 LE2d 720) (1962).


author: Andrews, Chief Judge.

text:
    A96A1758.
    GEORGIA STAR PLUMBING, INC. et al. v. BOWEN et al.
    (484 SE2d 26)
   Andrews, Chief Judge.

After Jeffrey Stilley was paid workers’ compensation benefits for injuries he received as an employee in an on-the-job automobile accident, Stilley’s employer, Georgia Star Plumbing, Inc. (Georgia Star), and its workers’ compensation insurer, Federated Mutual Insurance Company (FMIC), brought an action against Krista and Vicky Bowen, the alleged third-party tortfeasors responsible for the accident, to enforce subrogation rights pursuant to OCGA § 34-9-11.1. Georgia Star and FMIC appeal from the trial court’s ruling on cross-motions for summary judgment thát they had no right to bring the subrogation action against the Bowens.

While working for Georgia Star, Stilley was injured when the vehicle he was driving was hit by an automobile driven by Krista Bowen. About a month after the accident, Stilley filed a claim for workers’ compensation benefits as a result of the injuries he received in the accident. A little less than a year after the accident, Stilley also sued Krista Bowen and her mother, Vicky Bowen (under the family purpose doctrine) claiming they were liable as third-party tortfeasors for the injuries he received in the accident. Georgia Star and FMIC did not initially pay workers’ compensation benefits because they controverted Stilley’s claim. Workers’ compensation benefits were eventually paid to Stilley after the award of the administrative law judge in Stilley’s favor was affirmed by the appellate division of the workers’ compensation board and the superior court. While the controverted workers’ compensation claim was being litigated, Stilley settled his tort suit against the Bowens for $50,000 and released the Bowens from further liability. The settlement and release occurred prior to Stilley being paid any workers’ compensation benefits by Georgia Star and FMIC. Prior to the settlement of the suit, Georgia Star and FMIC notified the Bowens’ insurer on the tort claim and Stilley’s attorney on the tort claim that Stilley had filed a claim for workers’ compensation benefits as a result of the accident and that, as the employer and insurer in the workers’ compensation claim, they had a right to a subrogation lien under OCGA § 34-9-11.1 against any tort recovery in the amount of any disability benefits and medical expenses paid to Stilley under the Workers’ Compensation Act.

After paying workers’ compensation benefits to Stilley, Georgia Star and FMIC brought the present action against Krista and Vicky Bowen pursuant to OCGA § 34-9-11.1 claiming a subrogation lien against Stilley’s tort recovery in the amount of workers’ compensation payments made to Stilley and asserting a cause of action to be subrogated in that amount to Stilley’s claim against the Bowens. The Bowens denied any liability and filed a third-party complaint against Stilley. All of the parties filed cross-motions for summary judgment on the issue of whether Georgia Star and FMIC had a right to bring the subrogation action against the Bowens. .

OCGA §§ 34-9-11 and 34-9-11.1 (a) make clear that, despite the exclusive remedy provisions of the workers’ compensation act, an injured employee who receives workers’ compensation payments for an injury retains the right to bring an action against certain third-party tortfeasors legally liable for the on-the-job injury. Subsection (b) of § 34-9-11.1 provides that, after an employer has paid workers’ compensation payments to an injured employee, the employer or its insurer is granted a subrogation lien against the employee’s recovery from a third-party tortfeasor liable to the employee for the injury, that the lien is limited to the amount of benefits and medical expenses paid to the injured employee, that the lien is recoverable only if the employee has been fully and completely compensated by the workers’ compensation payments and the recovery in the third-party action for all economic and noneconomic losses resulting from the injury, and that the employer or its insurer may intervene in the employee’s action against the third party to protect and enforce such lien. Subsection (c) of § 34-9-11.1 generally sets forth circumstances under which the injured employee’s cause of action may be brought against such other person within the applicable statute of limitation and specifically provides for such cause of action to be brought by the employer or its insurer against the third party under the following circumstances: “If such action is not brought by the employee within one year after the date of injury, then the employer or such employer’s insurer may but is not required to assert the employee’s cause of action in tort, either in its own name or in the name of the employee.”

Although subsection (b) of the statute creates a subrogation lien in favor of the employer or its insurer against the injured employee’s recovery against a third party, the lien arises only after workers’ compensation payments are made to the injured employee. Although under subsection (b) of OCGA § 34-9-11.1 and OCGA § 9-11-24 (a) an employer or its insurer has the right to intervene in an action to protect or enforce a subrogation lien, Georgia Star and FMIC had no right to intervene in Stilley’s action because no subrogation lien was created prior to Stilley’s settlement of the action. The right to intervene under subsection (b) or under OCGA § 9-11-24 (a) is predicated on the existence of a subrogation lien providing an interest in the recovery. Dept. of Administrative Svcs. v. Brown, 219 Ga. App. 27 (464 SE2d 7) (1995). Under the plain language of subsection (b) of the statute, a subrogation lien is created only after the employer has fully or partially paid the workers’ compensation payments due to the employee. Since no workers’ compensation payments were paid to Stilley until after Stilley settled his suit against the Bowens, no subrogation lien existed providing Georgia Star and FMIC with an interest in the recovery supporting intervention during the pendency of the suit. The fact that Georgia Star and FMIC had a potential subrogation lien because they were potentially liable to pay workers’ compensation benefits to Stilley, depending on the outcome of the controverted claim, was not sufficient to support intervention in Stilley’s suit.

Moreover, any claim by Stilley’s employer or its insurer asserting subrogation rights against a third-party tortfeasor to the extent of workers’ compensation payments made to Stilley arises solely by operation of statute. K-Mart Apparel Corp. v. Temples, 260 Ga. 871, 873 (401 SE2d 5) (1991); Maryland Cas. Ins. Co. v. Glomski, 210 Ga. App. 759, 761 (437 SE2d 616) (1993). OCGA § 34-9-11.1, which extends this statutory right of subrogation to the employer and its insurer, does not grant an unconditional right of action to seek subrogation. Rowland v. Dept. of Administrative Svcs., 219 Ga. App. 899, 900-901 (466 SE2d 923) (1996). Under subsection (c) of the statute, the right of the employer or its insurer to bring an action seeking to be subrogated to the injured employee’s cause of action against the third-party tortfeasor is granted only where the employee fails to bring such action within one year of the date of the injury. In the present case, Stilley brought his cause of action against the Bowens within one year of the date of the injury, then settled the suit and released the Bowens prior to receiving any workers’ compensation payments from Georgia Star and FMIC. The settlement and release in the tort suit operated to extinguish any right of recovery by Stilley against the Bowens to which Georgia Star and FMIC could be subrogated. Id. at 901. However, as we noted in Rowland, “the loss of the right to bring this cause of action [against the third-party tortfeasor] did not extinguish [the employer’s/insurer’s] lien on the recovery, that is, the money now in the hands of the injured employee.” (Footnote omitted; emphasis in original.) Id.

The fact that the Bowens settled with Stilley after receiving notice of the pending workers’ compensation claim and the potential subrogation lien does not compel a different result in this case. In Rowland, supra at 902, we stated that “[h]ad Rowland[, the third-party tortfeasor,] settled with [the injured employee] despite having knowledge of the workers’ compensation claim and [the employer’s] right of subrogation,” we would not have concluded that the settlement extinguished the right to subrogation. We cited the general rule that “ ‘where the wrongdoer settles with the insured . . . without the consent of the insurer . . . with the knowledge of the insurer’s payment and right of subrogation, such right is not defeated by the settlement.’ (Citation omitted; emphasis supplied.) [Cit.]” Id. at 902. In Rowland the employer/insurer paid workers’ compensation benefits to the injured employee and acquired a subrogation lien prior to the settlement between Rowland and the injured employee. We found that Rowland had no actual knowledge of the successful workers’ compensation claim by the injured worker or of the employer’s assertion of a subrogation lien based on payments made pursuant to the claim. Id. at 902. Furthermore, we refused to impute constructive knowledge of these facts to Rowland on the basis that she knew the injured party had a potential claim against an employer for workers’ compensation benefits. Id. at 902-903. In the present case, no workers’ compensation benefits had been paid, and no subrogation lien had been acquired prior to the settlement of the tort suit. Although it appears the settlement documents were signed by the Bowens and Stilley on the same day that the superior court affirmed the award in favor of Stilley’s workers’ compensation claim, there had been no payment of workers’ compensation benefits at that time, and the record shows only that the Bowens had notice that Stilley had filed a claim.

Decided February 26,1997

Reconsideration denied March 12,1997

Saveli & Williams, Mark S. Gannon, Steven R. Thornton, Silvia L. Simpson, for appellants.

Downey & Cleveland, Rodney S. Shockley, for appellees.

Under these circumstances, the settlement and release between the Bowens and Stilley extinguished the subrogation rights asserted by Georgia Star and FMIC against the Bowens. The trial court properly granted the motions seeking summary judgment in favor of the Bowens on this issue, and properly denied the motion for summary judgment sought by Georgia Star and FMIC.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       When the original 1992 version of OCGA § 34-9-11.1 was amended in 1995, no provision was included for retrospective application of the changes to subsection (b); therefore, the 1995 amendment to subsection (b) is not given retrospective effect. Wausau Ins. Co. v. McLeroy, 266 Ga. 794, 796-797 (471 SE2d 504) (1996). The original 1992 version of subsection (b) applies in this case since the injuries giving rise to the present claim occurred in December 1992. In any event, the 1995 amendment to subsection (b), which substituted “an employee has a right of action” for “of recover/’ in the first sentence and inserted “death benefits” in the third sentence would not alter the resolution of the issues addressed in this appeal. The 1995 amendments to subsection (c) of the statute apply since the General Assembly provided that those amendments would apply retroactively to injuries occurring on or after July 1, 1992. Vaughn v. Vulcan Materials Co., 266 Ga. 163, 164 (465 SE2d 661) (1996); Dowdy v. Earthwise Restaurant Mgmt., 221 Ga. App. 220, 222-223 (471 SE2d 42) (1996).


text:
    A96A2512.
    SMITH v. MITCHELL CONSTRUCTION COMPANY et al.
    (481 SE2d 558)
   Johnson, Judge.

Leonard Smith filed this suit in Fulton State Court against Mitchell Construction Company, David Rutherford, Kent Smith, Robert Fleming, and George Wenick, alleging they improperly caused him to be found in contempt of DeKalb Superior Court and arrested, in connection with their attempt to collect a debt. Smith claims the arrest occurred while he had a bankruptcy petition pending, and violated the automatic stay provision of the Bankruptcy Code. The trial court granted summary judgment to the defendants. Its written order contains no findings of fact or conclusions of law, but the judge announced from the bench that he found Smith’s action preempted by federal law and barred by res judicata. Smith, who was represented by counsel below, appeals pro se. We affirm.

The original litigation involving these parties was a suit against Smith filed in DeKalb Superior Court by the law firm of Smith & Fleming on behalf of its client, Mitchell Construction. Rutherford, Fleming, Wenick, and Kent Smith are Smith & Fleming partners and associates. They obtained a judgment for Mitchell Construction, then served Smith with post-judgment discovery. Smith did not respond, but filed a bankruptcy petition instead. Because of miscues on both sides, Smith & Fleming did not receive proper notice that Smith had a chapter 7 bankruptcy case pending until after the superior court had granted their motion to have Smith held in contempt for violating the court’s order compelling discovery. Smith was incarcerated for about 29 hours.

After his release, Smith moved the bankruptcy court to sanction Mitchell Construction and Rutherford for violating the automatic stay. The bankruptcy court granted the motion, ordering Mitchell Construction and Rutherford to pay $5,000 into the registry of the bankruptcy court. In setting the amount, the bankruptcy judge considered the indignity of Smith’s incarceration; the disruption of his business; the possible damage to his reputation; the additional attorney fees he incurred in filing and prosecuting the sanctions motion; and the fact that if Smith or his lawyer had diligently notified Smith & Fleming of the pending bankruptcy, he could have avoided the arrest altogether. Though the bankruptcy court characterized the $5,000 as “sanctions,” it ordered that the funds be disbursed to Smith if he ultimately prevailed in a pending adversary proceeding regarding the dischargeability of his debt to Mitchell Construction. If Mitchell Construction prevailed, the $5,000 would be disbursed to it, but would be credited against Smith’s debt.

Smith then filed this Fulton State Court action against Mitchell Construction and the Smith & Fleming lawyers, alleging false arrest, negligence, assault, and intentional infliction of emotional distress. The adversary proceeding was still pending in bankruptcy court when the state court granted the defendants’ summary judgment motion.

1. Smith contends the trial court erred in finding his action preempted by federal law. At issue is 11 USC § 362 (h): “An individual injured by any willful violation of a stay . . . shall recover actual damages, including costs and attorneys’ fees, and, in appropriate circumstances, may recover punitive damages.” Whether § 362 (h) preempts state law claims for conduct violating a stay in bankruptcy is a question of first impression in Georgia.

In deciding whether federal law preempts a state law, the court’s primary consideration is whether Congress intended to exercise its authority under the Supremacy Clause. See City of Atlanta v. Watson, 267 Ga. 185, 192 (3) (475 SE2d 896) (1996). The mere existence of a detailed regulatory scheme does not alone imply intent to preempt. English v. Gen. Electric, 496 U. S. 72, 87 (110 SC 2270, 110 LE2d 65, 80) (1990). However, such intent may be inferred in an area in which federal legislation is especially pervasive or the federal interest is “so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject, or because the object sought to be obtained by federal law and the character of obligations imposed by it may reveal the same purpose.” (Citation and punctuation omitted.) Fidelity Federal Sav. & Loan Assn. v. de la Cuesta, 458 U. S. 141, 152-153 (102 SC 3014, 73 LE2d 664) (1982). Other “special features” may also warrant preemption. English, supra.

Cases in several jurisdictions hold that the Bankruptcy Code preempts state law claims for abusive filings in bankruptcy court. See, e.g., MSR Exploration, Ltd. v. Meridian Oil, 74 F3d 910, 912-915 (9th Cir. 1996); Edmonds v. Lawrence Nat. Bank &c., 16 Kan. App. 2d 331 (823 P2d 219) (1991); Samo v. Thermen, 239 111. App. 3d 1034 (180 111. Dec. 889, 608 NE2d 11) (1993). Whether the Code preempts state law actions for conduct outside bankruptcy court that violates the automatic stay, however, has been considered in only two cases cited by the defendants: Koffman v. Osteoimplant Technology, 182 B. R. 115 (D.Md. 1995), and In re Shape, Inc., 135 B. R. 707 (D.Me. 1992).

After Shape, Inc. filed a chapter 11 reorganization petition, a creditor with whom it continued to do business raised the prices of goods it sold Shape. Shape brought suit against the creditor in another court, claiming the price increase was a thinly disguised attempt to recover the price of goods Shape had received, but not paid for, before it filed its bankruptcy petition. Shape argued this was both a violation of the automatic stay, compensable under § 362 (h), and an unfair business practice under state law. Id. In holding that the Bankruptcy Code preempted the state law claim, the Shape court noted that the debtor did not allege the price increase to be illegal in itself. Rather, it was an allegedly unfair business practice only because it violated the bankruptcy stay. Id. at 708-709. “Since this federal statute is applicable here, and has its own enforcement scheme and separate adjudicative framework, it must supersede any state law remedies.” Id. at 708.

Similarly, Smith does not contend that defendants’ efforts to collect on a judgment were illegal in themselves. Their illegality arose solely from the fact that Smith had a bankruptcy case pending, which gave rise to the automatic stay. Shape is persuasive authority for holding that such bankruptcy-dependent claims should be preempted as coming within the Bankruptcy Code, which “provides a comprehensive scheme reflecting a balance, completeness and structural integrity that suggests remedial exclusivity.” (Citation and punctuation omitted.) Id. at 708.

Koffman v. Osteoimplant Technology, supra, employed similar reasoning to reach a similar conclusion. After Osteoimplant Technology, Inc. (“OTI”) had been placed in an involuntary chapter 7 bankruptcy, Koffman filed a collection suit against it, violating the stay. Koffman then dismissed the suit and moved the bankruptcy court to enjoin OTI’s president from leaving the country, allegedly making bad faith representations about the president’s intended conduct. After the chapter 7 petition had been dismissed, OTI sued Koffman, alleging abuse of process and malicious prosecution. (A third cause of action was dismissed for lack of evidence.) Id. at 119-122.

The Koffman court reasoned that “the automatic stay is imposed exclusively as a matter of federal bankruptcy law, and the Bankruptcy Code provides a remedy for willful violations of that stay, 11 U.S.C. § 362 (h). State created rights have nothing to do with the application of the automatic stay. Allowing state tort actions based on allegedly bad faith bankruptcy filings or violations of the automatic stay to go forward ultimately would have the effect of permitting state law standards to modify the incentive structure of the Bankruptcy Code and its remedial scheme. Because such a result threatens to erode the exclusive federal authority in this area, and because it would threaten the uniformity of federal bankruptcy law, the Court finds that OTI’s state tort suits are preempted by the federal Bankruptcy Code.” (Citations and punctuation omitted.) Id. at 125.

We find the reasoning of Shape and Koffman persuasive. As noted in MSR Exploration, supra at 913, “Congress has expressed its intent that bankruptcy matters be handled in a federal forum.” The need for uniformity in bankruptcy matters was recognized even by the framers of the Constitution, who granted Congress the power to “establish. . . uniform Laws on the subject of Bankruptcies throughout the United States” in Art. I, § 8, cl. 4. See MSR Exploration, supra at 914. From this long-recognized need for uniformity; from the comprehensive structure of the current Bankruptcy Code; and from Congress’ inclusion in that structure of § 362 (h), which provides a remedy for stay violations, we infer Congress’ intent to effectuate two related principles: Creditors should be held to a uniform standard of conduct when dealing with bankruptcy debtors, and the bankruptcy courts are the only institutions capable of fashioning such a uniform standard. These principles dictate our holding: § 362 (h) preempts Smith’s state law claims against Mitchell Construction and its lawyers for the actions they took in violation of Smith’s bankruptcy stay. The trial court was correct in granting summary judgment to the defendants on that basis.

Decided February 10,1997

Reconsideration dismissed March 12,1997

Leonard E. Smith, pro se.

Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, Craig A. Brookes, for appellees.

2. Therefore, we need not decide whether Smith’s action is barred by res judicata or precluded for other reasons advanced by the defendants.

Judgment affirmed.

McMurray, P. J., and Ruffin, J, concur.

       References to “Smith” are to plaintiff-appellant Leonard Smith, who apparently is no relation to defendant-appellee Kent Smith.


author: Blackburn, Judge.

text:
    A97A0160.
    LARKINS v. COBB COUNTY SCHOOL DISTRICT et al.
    (484 SE2d 10)
   Blackburn, Judge.

Cheryl Larkins appeals the trial court’s order which granted summary judgment based upon official immunity to Grace Calhoun, the superintendent of the Cobb County school system, and Linda Gruehn, the principal of Baker Elementary School. See Ga. Const., Art. I, Sec. II, Par. IX.

Larkins averred she was injured when she tripped and fell over an electrical receptacle in the cafeteria of Baker Elementary School. Larkins was volunteering at a school sponsored carnival at the time of her fall. She further averred that the receptacle was normally under a refrigerated case, but the case had been moved for the carnival. Although no evidence was produced to prove who actually moved the refrigerated case, Larkins alleged in her complaint that defendant Gruehn was responsible for moving it.

“[Sjchool employees are entitled to official immunity from their actions if those actions are within the scope of their employment, discretionary in nature, and without wilfulness, malice, or corruption. See Guthrie v. Irons, 211 Ga. App. 502, 504 (439 SE2d 732) (1993). However, a public official who fails to perform a purely ministerial duty is subject to an action for damages by one who is injured by his omission.” Wright v. Ashe, 220 Ga. App. 91, 92 (469 SE2d 268) (1996).

Larkins contends that the defendants negligently performed their ministerial duties associated with the carnival, thus causing her fall. The trial court determined that Calhoun and Gruehn were immune from suit based upon constitutional immunity. Such a determination necessarily requires a finding that the defendants’ actions were discretionary in nature. Therefore, the issue on appeal is whether the trial court correctly determined that defendants’ actions were discretionary rather than ministerial.

Decided February 24,1997

Reconsideration denied March 12,1997

Scheer & Eisner, Robert A. Eisner, for appellant.

Smith, Howard & Ajax, Matthew G. Moffett, for appellees.

“Generally, the determination of whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the job, and is to be made on a case-by-case basis.” Id. at 93. In the present case, Larkins admits that the act of approving the use of the school for the carnival was a discretionary act. Yet, she contends that her injuries were caused by actions taken to set up the school for the carnival, or ministerial actions. Larkins relies on Joyce v. Van Arsdale, 196 Ga. App. 95 (395 SE2d 275) (1990) for support, arguing that moving the refrigerated case was a ministerial function. However, we find such reliance misplaced.

In Joyce, supra, the acts of county workers in carrying out a directive to close certain bridges were found to be ministerial because they were executing a specific task. Id. at 97. In the present case, there is no evidence of any directive to accomplish anything with regard to the carnival. The PTA was merely allowed to use school property for a carnival benefiting the students.

Larkins alleges that the defendants were negligent in failing to take necessary measures to correct a dangerous condition. Such allegations are controlled by Hennessy v. Webb, 245 Ga. 329, 332 (264 SE2d 878) (1980), wherein our Supreme Court determined that allegations of negligence regarding the placement of a rug and mat in a school doorway were allegations regarding the exercise of discretion by those in charge. Therefore, governmental immunity attached. Id. Likewise, in the present case, the school officials’ actions in monitoring the activities associated with the carnival were discretionary, and the trial court did not err in granting defendants’ motion for summary judgment.

Judgment affirmed.

Johnson, J, and Senior Appellate Judge Harold R. Banke concur.

       Although the trial court granted summary judgment to all defendants, Larkins enumerates as error only the trial court’s determination as to Calhoun and Gruehn. Therefore, the trial court’s grant of summary judgment to the Cobb County school district and the Cobb County Board of Education is not before us on appeal.


text:
    A97A0414.
    ROBERTSON v. THE STATE.
    (484 SE2d 18)
   Blackburn, Judge.

Following a fight with David Winstead and Jerry McDaniel, William Daniel Robertson pulled a gun from his truck and shot Win-stead in the foot. Robertson appeals his conviction on two counts of aggravated assault, contending the trial judge erred in excluding expert testimony, in giving an improper jury charge, and in failing to recuse herself from the trial of the case. Robertson also contends that the written sentence issued by the judge did not conform to the sentence announced in open court.

1. At trial, Robertson testified that he shot Winstead at close range in self-defense, while Winstead testified that he was shot at a range of between 15 and 30 feet after the fight was over. To support his version of events, Robertson attempted to present expert testimony from the emergency room physician who treated Winstead that, from the angle of the wound in the body, the shot must have been fired from close range.

In a proffer of evidence outside the presence of the jury, the physician stated that he believed the shot was either fired at a downward angle with the victim’s foot flat, or was fired from a distance with the foot at an angle. The physician admitted that this opinion was based solely upon the angle at which the bullet entered the body, and that he had no formal training in ballistics. Although the physician had previously assisted law enforcement agencies in determining the angle of entry of a bullet and the position of the victim when shot, he had never been asked to determine where an assailant might have been standing when a shot was fired.

Under these circumstances, the trial court did not abuse its discretion in refusing to allow the physician to express an opinion regarding the distance from which the gun was fired or the trajectory of the bullet, as such matters were outside the physician’s area of expertise. See McDonald v. Glynn-Brunswick Mem. Hosp., 204 Ga. App. 7 (418 SE2d 393) (1992) (whether witness has such expertise to be treated as expert is within sound discretion of trial court, and such discretion will not be disturbed unless manifestly abused). The physician was allowed to testify as to the point of entry of the bullet and the angle of the wound in the body. As he had no training or expertise in ballistics or bullet trajectories, any opinion he might have expressed regarding the position of the gunman or the trajectory of the bullet would merely have been based on a commonsense extrapolation from the angle of the wound, and not on any specialized knowledge he possessed.

Furthermore, any error in failing to allow the physician to express his opinion was harmless, as the proffered testimony was equivocal at best. The physician admitted he could not state where Robertson was standing when he fired the shot, and admitted that the shot could have been fired at a distance if the victim’s foot were angled. Thus, his testimony could support either Robertson’s or the State’s version of events. Accordingly, “it is highly probable that the exclusion of this evidence did not contribute to [Robertson’s] conviction,” and any error was thus harmless. Shaw v. State, 241 Ga. 308, 310 (1) (245 SE2d 262) (1978).

2. Robertson argues that the trial court erred in recharging the jury on the defense of justification, by failing to identify the portion of the original justification charge that was erroneous. However, when the judge asked the parties if they had any exceptions to the recharge, Robertson’s attorney affirmatively stated that he had none, and did not reserve the right to make later objections. Accordingly, any objection to the recharge is waived. Lewis v. State, 215 Ga. App. 161, 164 (4) (450 SE2d 448) (1994).

Moreover, even if the alleged error had been preserved for appeal, Robertson’s argument is without merit, as the court expressly instructed the jury to ignore the previous justification charge and only consider the recharge. As the recharge adequately identified the charge to be retracted, it cured any error in the original charge. See Johnson v. State, 148 Ga. App. 702, 704 (2) (252 SE2d 205) (1979).

3. Robertson contends that he is entitled to a new trial because the trial judge improperly failed to recuse herself from the trial of the case. After the trial was completed, but before the sentencing hearing, the trial judge discovered that her husband, an attorney, was representing the victim in connection with a potential civil suit against Robertson. The trial judge, who was a magistrate judge sitting by designation, had not been assigned to this case until the morning of trial, and was not aware of her husband’s connection with the victim during the trial. Immediately upon learning of her husband’s involvement, she recused herself from the sentencing phase.

OCGA § 15-1-8 (a) (2) requires a judge to disqualify herself if she is pecuniarily interested in the case or is “related by consanguinity or affinity within the sixth degree ... to any party interested in the result of the case or matter.” “To work a disqualification the interest must be a direct, certain, and immediate interest, and not one which is indirect, incidental or remote.” (Punctuation omitted.) DeLoach v. State, 78 Ga. App. 482, 486 (2) (51 SE2d 539) (1949). In DeLoach, this Court held that a judge was not required to recuse himself from a criminal drunk driving trial, despite the fact that the judge’s son had been hired to represent the victim on a contingent fee basis in a civil action against the defendant. As in DeLoach, any interest the judge or her husband may have had in this criminal case “was one which is not direct, certain, and immediate.” Id. at 487. Accordingly, the judge was not required to recuse herself under OCGA § 15-1-8 (a).

Decided February 24,1997

Reconsideration denied March 12,1997.

John C. Gullickson, for appellant.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

Canon 3 (E) (1) of the Code of Judicial Conduct provides an additional rule of disqualification that is broader than the statute, stating that “[jjudges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, including but not limited to instances where . . . the judge’s spouse ... is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding.” See Stephens v. Stephens, 249 Ga. 700, 701 (2) (292 SE2d 689) (1982). Canon 3 (E) (2) requires judges to “make a reasonable effort to keep informed about the personal financial interests of their spouses.”

Under the peculiar circumstances of this case, the trial judge’s impartiality cannot reasonably be questioned. Since the judge had no actual knowledge of her husband’s representation of the victim during the trial, such representation could not have affected her partiality. Although a judge must make a reasonable effort to keep informed about her spouse’s financial interests, it is unreasonable to require a judge to know all of her attorney-husband’s clients, particularly clients on whose behalf no lawsuit has yet been filed. In this case, the judge’s failure to recognize that the victim was a client of her husband’s is particularly understandable, since the judge was not assigned to the case until the morning of trial. Under these circumstances, the judge’s partiality could not reasonably be questioned, and she was not obligated to recuse herself.

4. Robertson’s final enumeration of error asserts that the written sentence signed by the judge contained a scrivener’s error and did not accurately reflect the sentence announced in open court. As the sentence has been amended to correct this error, this enumeration is moot.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.