text:
    A01A0423.
    ALLEN v. THE STATE.
    (545 SE2d 629)
   Mikell, Judge.

Patrick Lavon Allen was convicted of burglary by an Emanuel County jury. Allen was sentenced to serve 20 years, 14 in confinement and the remainder on probation. On appeal, Allen challenges the trial court’s denial of his motion for new trial. Further, Allen argues that he did not receive a fair trial because he was required to wear leg shackles during the trial and the trial judge failed to give curative instructions pertaining thereto. Because we find that the trial judge abused his discretion by requiring Allen to wear leg shackles, we reverse Allen’s conviction and remand the case for a new trial.

On appeal, “this court views the evidence in the light most favorable to support the verdict, and an appellant ‘no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.’ ”

So viewed, the evidence shows that between 6:00 p.m. on August 14, 1998, and 8:00 a.m. on August 15, 1998, L. A. Brett & Sons, Inc. was burglarized. William Brett, the co-owner of the store, testified that money was taken from the store’s cash register and safe. Further, Brett testified that he did not know Allen; consequently, Allen would not have had permission to enter the store at the relevant time.

Detective Richard Peacock of the Swainsboro Police Department investigated the burglary. Detective Peacock testified that he found fingerprints on a toolbox in the store. The fingerprints were lifted on August 15, 1998, and were sent to the Georgia Crime Lab on August 19, 1998. The state’s fingerprint expert witness testified that the fingerprints were compared with those in the automated fingerprint identification system (“AFIS”). The second AFIS search resulted in a match with Allen’s fingerprints.

Allen was arrested on February 11, 1999. Allen was fingerprinted, and his prints were sent to the crime lab. The state’s expert witness testified that based on his comparison of the fingerprints, there was a 100 percent match between the fingerprints taken from Allen after his arrest and those taken from the toolbox.

1. Allen contends that his conviction should be reversed because it was contrary to and against the weight of the evidence. We disagree. A person commits the offense of burglary when, without authority or with intent to commit a felony or theft therein, he enters any building. In light of the testimony of the store owner and the state’s expert witness, we find that the evidence was sufficient for the jury to conclude beyond a reasonable doubt that Allen was guilty of burglary.

2. In spite of the sufficiency of the evidence, however, we must reverse because in shackling Allen, the trial court violated his constitutional right to be tried by an impartial jury. Before the trial commenced, the state argued that Allen was a flight risk and moved to restrain him with ankle shackles. The state also noted for the record that the trial was being held in the small auxiliary courtroom and that the defendant’s table was near the exterior doors. Defense counsel objected to the use of the shackles.

In support of its position, the state offered the testimony of the chief jailer of Emanuel County, Bruce Spearman. Spearman testified that Allen made bail on the charge at issue in the trial. Further, while out on bail, Allen was suspected of several thefts and ran from the sheriff’s department and city police when they attempted to apprehend him. Allen was finally apprehended in Cobb County. On cross-examination, however, Spearman admitted that Allen had made no escape attempts while at the Cobb County jail nor had he threatened or attacked any of the prison guards. Also, since Allen’s return to the Emanuel County jail, Allen had not attempted to escape. Nonetheless, based upon Spearman’s testimony and the close proximity of the defense table to the courtroom’s exit doors, the trial court found that Allen was a flight risk and granted the state’s motion.

It is well established that the accused, while in the presence of the jury, should be free of indicia of guilt such as wearing shackles or prison garb, or being surrounded by uniformed security personnel, or anything else that might infringe upon the presumption that he is innocent.

Where such restraints are imposed, there must be “demonstrable evidence set forth in the record to support the infringement by the court on the defendant’s presumption of innocence.” On appeal, the standard of review applied where restraining devices have been used in the trial court is abuse of discretion.

We have found that the trial court abused its discretion in ordering the defendant to wear ankle restraints during trial in several cases. In Mapp, we found an abuse of discretion where the trial judge’s order was based on the defendant’s prior conviction, his physical presence, and the opinion of him held by law enforcement authorities. In Pace, we reversed the conviction where the trial court’s order that the defendant wear leg shackles was based on testimony that the defendant was assaultive and had a prior escape conviction. In Hicks v. State, we found an abuse of discretion where the defendant wrote letters during a previous incarceration threatening to exact vengeance on the justice system.

In each of the cases, there were two pivotal facts: (1) there was no evidence that the defendants had threatened or struggled with guards, court officials or jurors; and (2) there was no evidence that the defendants were disruptive during trial or attempted to escape while in police custody. These factors are also present in this case.

There is no evidence that Allen exhibited disruptive conduct at any time before the court or threatened anyone. Also, there is no evidence that while in police custody, Allen attempted to escape. Spear-man testified that Allen was suspected of theft and ran away from the police before he was apprehended. However, in light of Allen’s right “to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on the grounds of official suspicion, indictment, continued custody or other circumstances not adduced as proof at trial,” we do not find that Spearman’s testimony warranted the finding that Allen was a flight risk.

The only case cited by the state in support of its argument that the trial court properly exercised its discretion is Gude v. State. There was evidence in Gude that the defendant ran from police immediately after committing the burglary, escaped twice from jail and had attempted to escape custody while wearing handcuffs when he was a juvenile. Further, the appellant in Gude did not complain after he was placed in leg irons. In this case, there is no evidence that Allen attempted to escape after his arrest in Cobb County. Nor did he attempt to escape from the Emanuel County jail. Also, defense counsel here objected to the use of the restraints. Accordingly, because Allen did not have an escape history and there was no indication that he intended to disrupt the trial, we find that the trial court abused its discretion in requiring that he wear leg shackles in the presence of the jury.

3. In his third enumeration of error, Allen contends that the trial court erred by failing to give curative instructions to the jury that the shackles should not be considered as evidence of his ■ guilt. In response thereto, the state argues that there has been no showing that the jurors saw or were made aware of Allen’s shackles. We reject the state’s argument and agree with Allen that a curative instruction should have been given.

During the pretrial hearing in this case, defense counsel argued that the jurors would have an easy view of Allen’s feet, legs and hands. This fact was not disputed by the state. Furthermore, in cases where the defendants have been shackled throughout their trials, we have found an abuse of discretion without a specific showing, via juror testimony or the like, that the shackles were observed. In Mapp, where defense counsel did not request curative instructions, as in this case, we stated: “[I]t is our opinion that the trial court had a duty to take such curative actions once the jury was exposed to the vision of a shackled defendant.” Further, in Hicks, we stated:

[T]he decisions of this court make it clear that when physical restraints are necessary and are observed by the jury in a criminal case, the trial court must instruct the jury that the use of physical restraints on the defendant has no bearing on the defendant’s guilt or innocence and should not be considered by them during their deliberations.

In support of its argument, the state cites several cases, none of which involve a defendant who wore leg shackles or other restraints during his trial. Instead, the cases involve allegations that the jurors saw the defendants in restraints as the defendants were leaving or entering the courthouse. Thus, these cases are not applicable. We note, however, the Supreme Court’s ruling in Kitchen v. State that the failure to give a curative instruction is not reversible error where, in the absence of the instruction, the jury is not left without proper guidelines for determining a defendant’s guilt or innocence.

In Kitchen, the defendant told the chief deputy that “ “he was going to cause trouble.’ ” The defendant did not contend that the statement attributed to him by the deputy was false, nor did he otherwise attempt to refute the information on which the trial court acted. Though Kitchen is inapposite here, as we did in Pace, we again find instructive its concurrence. “[T]he standards set forth by the American Bar Association provide that the trial judge should so instruct the jurors and ... we urge compliance with those standards.”

Decided February 15, 2001.

Lovett Bennett, Jr., for appellant.

Steve Askew, District Attorney, for appellee.

Judgment reversed.

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

       (Citation omitted.) Dumas v. State, 239 Ga. App. 210 (1) (521 SE2d 108) (1999).

       The first AFIS search produced a list of potential candidates that did not include Allen. The state’s expert witness explained that there was no match during the first search because the database contained only Allen’s thumb prints. Subsequently, they received Allen’s full prints from Cobb County, which facilitated the match found during the second search.

       OCGA § 16-7-1 (a).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       U. S. Const., Amend. VI; Ga. Const, of 1983, Art. I, Sec. I, Par. XI.

       (Citation and punctuation omitted.) Mapp v. State, 197 Ga. App. 7 (397 SE2d 476) (1990).

        Martinez v. State, 189 Ga. App. 69, 72 (2) (375 SE2d 123) (1988).

        Pace v. State, 212 Ga. App. 489, 490 (1) (442 SE2d 307) (1994).

        Mapp, supra at 8.

        Pace, supra at 490 (1).

       200 Ga. App. 602, 603 (409 SE2d 82) (1991).

        Mapp, supra at 8; Pace, supra at 490; Hicks, supra at 603.

       Id.; but cf. Dennis v. State, 170 Ga. App. 630, 632 (317 SE2d 874) (1984) (defendant struggled with the guards at his arraignment and insulted court officials); Thomas v. State, 171 Ga. App. 306, 308 (4) (319 SE2d 511) (1984) (defendant had escaped three times: twice from county jail and once from the courthouse while in leg irons).

       (Citations and punctuation omitted.) Mapp, supra.

       213 Ga. App. 573 (445 SE2d 355) (1994).

       Id. at 574 (2).

       Id. at 575 (2).

        Mapp, supra; Hicks, supra; Pace, supra.

        Mapp, supra at 8.

        Hicks, supra at 604.

       See Curtis v. State, 182 Ga. App. 899 (357 SE2d 602) (1987) (defendant moved for a mistrial because he was led into the courthouse wearing handcuffs); George v. State, 192 Ga. App. 840 (386 SE2d 669) (1989) (defendant moved for a mistrial because he was brought into a hallway adjacent to the jury room on the second morning of trial in shackles); Cotton v. State, 223 Ga. App. 288 (477 SE2d 425) (1996) (no evidence that the jury saw the defendant in shackles and handcuffs); Casey v. State, 237 Ga. App. 461 (515 SE2d 429) (1999) (defendant argued several jurors standing on the courthouse steps saw him as he was escorted to a patrol car in shackles).

       263 Ga. 629 (1) (436 SE2d 645) (1993).

       Id.

       Supra at 491 (1).

       Id.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A01A0426.
    In the Interest of C. N. S. et al., children.
    (545 SE2d 633)
   Eldridge, Judge.

After the children, C. N. S. and D. H. G., were removed from her custody, the appellant biological mother was repeatedly incarcerated for shoplifting and revocation of probation. C. N. S. and D. H. G, ages nine and four at the time of the termination hearing, were placed in the temporary legal custody of the Catoosa County Department of Family & Children Services (“DFCS”) in 1996. In 1998, they were first adjudicated as deprived based upon the appellant’s status as imprisoned and the whereabouts of the fathers of the children as unknown. At that time, the juvenile court also found as fact that there “was no home to return the children to” and, with the appellant’s consent, extended temporary custody in DFCS until its further order. Approximately a year later, the juvenile court further extended custody of the children in DFCS for one year and, in May 2000, acting upon DFCS’s termination petition filed in 1997, ordered appellant’s parental rights terminated.

On appeal, appellant contends that insufficient evidence was presented to support the juvenile court’s finding that the termination of her parental rights was proper upon clear and convincing evidence of parental misconduct and as in the best interests of her children. In this regard, the appellant argues that the juvenile court erred in admitting as hearsay a report of her positive drug screen and the DFCS citizens review panel reports in her case. Further, she argues that in the absence of the alleged hearsay, the evidence of her prison time would not support the termination of her parental rights. Finding her claims of error to be without merit, we affirm. Held\

Parental rights are terminated under OCGA § 15-11-94 in two steps.

First, the court determines whether there is clear and convincing evidence of parental misconduct or inability. Second, the court considers whether termination is in the best interest of the child. The standard for appellate review of a termination of parental rights is whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost.

(Citations and punctuation omitted.) In the Interest of D. I. W., 215 Ga. App. 644, 645 (1) (451 SE2d 804) (1994).

Parental misconduct or inability is established upon finding that the child is deprived; that the lack of proper parental care or control is the cause of the deprivation; that the child’s deprivation is likely to continue or will not be remedied; and that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-94 (b) (4) (A); In the Interest of D. I. W, supra. A parent’s conviction of a felony and resulting imprisonment which have a demonstrable effect on the parent-child relationship are among the factors relevant to establishing the lack of proper parental control over a child. OCGA § 15-11-94 (b) (4) (B) (iii).

Appellant concedes that the status of the children as deprived has been established by her failure to appeal such determination. See In the Interest of B. P., 207 Ga. App. 242, 244 (427 SE2d 593) (1993) (unappealed deprivation determination binding on appeal). Further, the record shows that appellant was incarcerated three times for shoplifting and twice further incarcerated upon revocation of probation after the children were placed in the custody of DFCS. At the termination hearing, the appellant conceded that the time she had spent in jail left her knowing C. N. S. only in the context of the first four years of his life and not knowing D. H. G. at all. Under these circumstances, the appellant cannot be deemed to have provided proper parenting for the children. Compare In the Interest of D. A. P, 234 Ga. App. 257, 259 (2) (506 SE2d 438) (1998). “Although incarceration alone need not always compel the termination of parental rights, it can support such a ruling when sufficient aggravating circumstances are present. [Cit.]” Id. An incarcerated parent’s history for repeated incarceration as a recidivist constitutes further evidence relevant to “determining whether [a] child presently is without the proper parental care and control of the offending parent, and that such is likely to continue.” (Citation omitted; emphasis in original.) In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344) (1992). We conclude that appellant’s near continuous incarceration, an incarceration still in progress at the time of the hearing below, constitutes an aggravating circumstance in this case. Such circumstance particularly bears on that testimony in the record establishing that in the event the appellant’s parental rights were not terminated, the children would likely remain deprived with significant adverse effects.

Because the children were not in the custody of the appellant at the time her parental rights were terminated, the juvenile court was also required to determine whether the appellant failed to comply with OCGA § 15-11-94 (b) (4) (C) (i)-(iii) — that is, to consider whether the appellant, without justification for one year or longer before the filing of the petition for termination of parental rights, failed significantly:

(i) [tjo develop and maintain a parental bond with the [children] in a meaningful, supportive, [parental] manner; (ii) [t]o provide for the care and support of the [children] as required by law or judicial decree; and (iii) [t]o comply with a court ordered plan designed to reunite the [children] with the [appellant].

OCGA § 15-11-94 (b) (4) (C) (i)-(iii).

It is undisputed that the appellant consistently wrote the children from prison. Likewise, while in prison she successfully completed numerous parenting and substance abuse prevention courses. Nevertheless, the record shows that the children entered DFCS custody based upon appellant’s neglect; that the appellant was unable to provide the children a safe and stable home because of an inability to avoid criminal conduct resulting in repeated periods of incarceration; that in the brief interludes between prison terms, the appellant failed to provide the children such a home; that the appellant failed to disclose her final shoplifting offense before her last DFCS citizens review panel, evidencing deceitfulness and denial; and that she paid no court-ordered child support, although conceding an ability to do so to a caseworker.

At the hearing, the appellant also testified that she was then serving a six- to ten-year sentence for felony shoplifting and that her sentence would not be complete until June 2001. The appellant further testified that she might be released earlier; that she could remain drug free; that she could avoid other criminal conduct; and that she could care for the children after her release. However, these claims amount to no more than conjecture. “ ‘[T]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.’ [Cit.]” In the Interest of D. I. W., supra at 646 (1).

Upon considering the best interests of the children, the juvenile court may further consider their need for stability and the harmful effects of extended foster care. In the Interest of A. L. B., 245 Ga. App. 776, 779 (538 SE2d 557) (2000). Based upon the appellant’s past conduct as a recidivist, the juvenile court was authorized to find the deprivation of the children would not likely be remedied in the future and that it was in their best interests that her parental rights be terminated.

Neither is the sufficiency of the evidence diminished by appellant’s hearsay claims. Although we conclude that the juvenile court erred in admitting the November 1998 drug screen about which the appellant complains as original evidence for lack of a proper foundation, see Tucker v. State, 249 Ga. 323, 329 (5) (290 SE2d 97) (1982) (“The report of an expert expressing the expert’s opinion as to the result of a scientific experiment is not admissible under [OCGA § 24-3-2] to explain conduct or motive where the foundation for admission of that opinion is not properly laid.”), such error was harmless. The record reveals that the juvenile court admitted the drug screen to explain caseworker conduct alone; such conduct was otherwise amply explained of record. See Tarleton v. Griffin Fed. Sav. Bank, 202 Ga. App. 454, 455 (2) (b) (415 SE2d 4) (1992) (“An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful. (Cits.)”).

Finally, the juvenile court properly admitted the DFCS citizens review panel reports. “[A] 11 information helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition.” OCGA § 15-11-56 (c); In the Interest of C. G. B., 242 Ga. App. 705, 711 (5) (531 SE2d 107) (2000), citing In the Interest of M. A. C., 244 Ga. 645, 655 (4) (261 SE2d 590) (1979). To the degree any such information contained hearsay, the courts are presumed to have disregarded it. In the Interest of C. G. B., supra; In the Interest of M. L. P., 236 Ga. App. 504, 510-511 (2) (512 SE2d 652) (1999).

Upon reviewing the evidence in the light most favorable to the appellant, any rational trier of fact could find by clear and convincing evidence that her parental rights were properly forfeited.

Decided February 15, 2001

Clifton M. Patty, Jr., Christopher C. Young, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Shalen S. Nelson, Assistant Attorney General, Russell & Mingledorff, John D. Russell, Steven M. Ellis, for appellee.

Judgment affirmed.

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

       In May 1998, the juvenile court terminated the parental rights of the children’s fathers for nonsupport and abandonment.

       This Code section was formerly OCGA § 15-11-81.

       The second and third of these convictions were for felony shoplifting; the first was a misdemeanor.

       A caseworker testified that C. N. S. evidenced his deprivation by bed-wetting, nightmares, tantrums, and tendencies to urinate on bathroom walls and play in his feces. As to D. H. G., the caseworker indicated that the full effects of his deprivation would likely never be known in that he was “so little” and had been in foster care all his life.

       The State failed to call the testing toxicologist as a witness.

       In admitting the drug screen report, the juvenile court ruled, “I’ll allow it in to show conduct. [The drug screen report] is admitted for that reason only.”

       This Code section was formerly OCGA § 15-11-33 (d).


text:
    A01A0691.
    CLARK v. THE STATE.
    (545 SE2d 637)
   Eldridge, Judge.

Chester Eugene Clark was charged with the offenses of trafficking in cocaine and two counts of obstruction of an officer (felony). A Thomas County jury returned a verdict of guilty on Count 1, trafficking in cocaine, and Count 3, obstruction of an officer. A verdict of not guilty was returned on Count 2, obstruction of an officer. Clark appeals from the conviction and sentence entered thereon. Finding no error, we affirm.

On June 17, 1998, at approximately 5:15 a.m., based on a “tip” from a previously reliable confidential informant, Officer Kevin Lee, an agent with the Thomas County-Thomasville Narcotics and Vice Division, initiated a surveillance of Georgia Highway 19 South at Lower Boston Road. At approximately, 5:20 a.m., Officer Lee observed a red, two-door Honda proceeding toward Thomasville. Officer Lee pulled his vehicle behind the red Honda and called in the tag number to dispatch. The tag number came back to Clark. Upon receiving this information, Officer Lee activated his blue lights. Clark pulled his vehicle over onto the side of the road, then immediately pulled back onto the highway. Clark continued this pattern of pulling his vehicle onto the side of the road and then back onto the highway two or three times prior to finally stopping.

Officer Lee requested Clark to step out of the car, walk to the rear, and produce his driver’s license, which Clark produced. After Officer Lee informed Clark that he had stopped Clark because he had received information Clark had cocaine in his car, Clark twice tried to go back to the driver’s door of his car. Each time Officer Lee ordered Clark to return to the rear of the car and put his hands on the trunk. Thereafter, Officer David Godwin arrived on the scene. Clark once again tried to go back to his car. Officer Lee instructed Clark to return to the trunk of the car. When Officer Lee turned to speak to Officer Godwin, Clark ran and jumped in the open driver’s side door of the red Honda. Both officers also jumped into the car because they were afraid Clark had a weapon. Clark grabbed a Huggie baby wipe box, which was located in the Honda, causing the top to come open. Inside the box was a black plastic bag. A struggle ensued inside Clark’s car between Clark and the two officers during which the box fell out of the car. During the fight, Clark struck or kicked both agents with his hands, feet, or elbows. Officer David Melton, who arrived on the scene during the struggle, moved the box of baby wipes out of the reach of Clark with his foot. After subduing Clark, Officer Lee looked inside the black plastic bag and found a clear gallon ziplock bag containing 441 grams of cocaine, which was 48 percent pure. Held:

1. Clark argues that the trial court erred in denying his motion to suppress and amended motion to suppress.

Clark was arraigned on February 15, 1999. On February 17, 2000, Clark was appointed an attorney. On May 24, 2000, and June 8, 2000, Clark filed a motion to suppress and an amended motion to suppress, respectively. On June 23, 2000, Clark withdrew both of the motions to suppress and entered a guilty plea to trafficking in cocaine. Sentencing was set for August 24, 2000; however, Clark withdrew his guilty plea prior to sentencing.

The case was set for trial on September 25, 2000. After the jury was selected, Clark for the first time sought to renew his motions to suppress. The trial court denied such motions on the ground that Clark had withdrawn his motions and waived his right to be heard on those particular matters. We agree.

A motion to suppress “must be made at or before the defendant’s arraignment and if not made at the proper time is waived unless the time for filing is extended by the judge in writing.” Stewart v. State, 232 Ga. App. 565, 567 (502 SE2d 502) (1998); Uniform Superior Court Rule 31.1. “This rule has evolved over time. The purpose of the time requirement in USCR 31.1 is fundamental fairness to all parties and those who must attend trial. Failing to file a timely motion to suppress amounts to a waiver of even constitutional challenges.” (Citations and punctuation omitted.) Stewart v. State, supra at 567.

Clark has made no assertion that the motions to suppress were not withdrawn at the time he entered his guilty plea. In fact, at trial when he attempted to renew these motions, he admitted such motions were previously withdrawn. Clark did not obtain a written extension of time to file a motion to suppress. Further, there has been no showing by Clark that he requested to renew his motions to suppress at the time he withdrew his plea of guilty. Clark’s attempt to renew the motions to suppress previously waived and withdrawn is tantamount to filing them on the day of trial. Therefore, there was no error in the trial court’s denial of Clark’s untimely motions to suppress.

2. Clark further enumerates as error the trial court’s refusal to give his written request to charge no. 6 on “excluded or inadmissible evidence.” Clark contends that the failure to give this charge was harmful because of the inadmissible hearsay testimony by Officer Lee.

During direct examination by the State, the following colloquy occurred.

Q: Did you receive any information on that occasion?
A: Yes, sir; I did.
Q: And what did you receive, please sir?
A: I was contacted by a previous reliable confidential informant who stated he knew Chester Clark and possibly three other males had driven to Miami, Florida to purchase a quantity of cocaine. He also stated that —.
Mr. Parker: Judge, I’m going to object to any hearsay testimony.

Initially, we must note that procedurally Clark should have requested that the testimony be stricken and curative instructions be given at the time the trial court sustained his objection. Clark failed to do so and, instead, waited until the court’s charge at the conclusion of the evidence to request such relief. However, under the facts of this case there is no need for us to decide if the trial court’s refusal to give the requested charge at this time was error. Even assuming arguendo that the trial court erred in failing to give such charge, reversal is still not warranted.

The standard for weighing nonconstitutional error in criminal cases “is known as the ‘highly probable test,’ i.e., that it is ‘highly probable that the error did not contribute to the judgment.’ ” Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976). Under that test, a reversal is not required if the evidence of “guilt is overwhelming in that there is no reasonable probability that the verdict of the jury would have been different in the absence of this error.”

Decided February 15, 2001.

Bonnie R. Spears, for appellant.

J. David Miller, District Attorney, James E. Hardy, Robert R. Auman, Assistant District Attorneys, for appellee.

(Citations omitted.) Felder v. State, 266 Ga. 574, 576 (468 SE2d 769) (1996).

In this case, the evidence of Clark’s guilt is overwhelming. Viewing the posture of the entire record, we find it is highly probable that the error, if any, did not contribute to the judgment.

3. Clark contends that the trial court erred by allowing Officer Lee to render his opinions without having been qualified as an expert. However, Clark did not object to Officer Lee’s testimony on this ground at trial. Clark’s objection was that Officer Lee’s testimony was improper speculation. “In order to preserve an objection upon a specific ground for appeal, the objection must be made at trial upon that specific ground. Objecting on specific grounds waives the grounds not asserted.” (Citations and punctuation omitted.) Campbell v. State, 228 Ga. App. 258, 263 (3) (b) (491 SE2d 477) (1997). “The rule is that the scope of review is limited to the scope of the ruling in the trial court as shown by the trial record and cannot be enlarged or transformed through a process of switching [or] shifting.” (Citations and punctuation omitted.) Robinson v. State, 208 Ga. App. 528, 530-531 (4) (430 SE2d 830) (1993). Accordingly, Clark waived his right to raise this issue on appeal.

Judgment affirmed.

Andrews, R J., and Miller, J., concur.

       Clark’s request to charge no. 6 reads as follows:
      During the course of this trial, the court has (on several occasions) ruled out certain testimony as inadmissible. I charge you that any such testimony which the court has ruled out is not evidence in this case, and you cannot consider it during your deliberations in reaching your verdict. You must not speculate as to why the court sustained the objection to any questions or what the answer to such questions might have been. You must not draw any inference or speculate on the truth of any suggestions included in such a question which was not answered.


author: Ellington, Judge.

text:
    A00A2457.
    GLASS v. THE STATE.
    (545 SE2d 360)
   Ellington, Judge.

A Cobb County jury convicted Bruce Lamar Glass of rape, OCGA § 16-6-1, and aggravated sexual battery, OCGA § 16-6-22.2. Following a hearing, the trial court denied Glass’ timely motion for new trial on April 30, 1999. Eight months later, Glass filed a motion for out-of-time appeal and/or motion for leave to file an amended motion for new trial, alleging ineffective assistance of appellate counsel in failing to file a timely notice of appeal. Following a hearing, the trial court denied Glass’ motion, specifically finding that “the failure to timely file an appeal was due to the Defendant’s own conduct, and was not attributable to ineffective assistance of counsel.” Glass appeals from this ruling. For the reasons which follow, we reverse.

1. “[T]he denial of a motion for an out-of-time appeal is a matter within the discretion of the trial court, and the trial court’s decision will not be reversed absent abuse of such discretion.” (Citation omitted.) Keller v. State, 242 Ga. App. 150, 151 (1) (529 SE2d 167) (2000).

The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal. . . . [0]ur courts have long recognized the right to effective assistance of counsel on appeal from a criminal conviction, and have permitted out-of-time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights. The right to appeal is violated when the appointed lawyer deliberately forgoes the direct appeal without first obtaining his client’s consent. Such action constitutes ineffectiveness. A criminal defendant who has lost his right to appellate review of his conviction due to error of counsel is entitled to an out-of-time appeal. However, a convicted party may, by his own conduct or in concert with his counsel, forfeit his right to appeal by sleeping on his rights.

(Footnotes omitted; emphasis supplied.) Butts v. State, 244 Ga. App. 366, 367 (536 SE2d 154) (2000). See also Cannon v. State, 175 Ga. App. 741, 742 (334 SE2d 342) (1985) (a defendant waives his right to appeal when he, alone or in concert with his attorney, “ ‘purposefully delays the appeal of his conviction to his own advantage’ ”). We apply the “any evidence” standard to findings of the trial court, acting as the trier of fact, with regard to whether counsel informed the defendant of his appeal rights and whether the defendant voluntarily waived those appeal rights. Butts v. State, 244 Ga. App. at 368.

The record in this case shows that, approximately two weeks after the trial court denied his motion for new trial, Glass wrote to the public defender’s office and asked that his first appellate counsel be taken off his case. In his letter, Glass said, “I will seek other alternatives as far as legal representation is concerned.” Glass’ first appellate counsel immediately asked the trial court to sign a draft order allowing him to withdraw as counsel. The trial court refused and indicated that it preferred to have Glass produced and to have replacement counsel appointed in open court. On May 25,1999, counsel filed a motion to withdraw and a petition requesting a production order; the trial court signed the order requiring Glass to be produced for a hearing on June 15, 1999. The 30-day time period for filing a notice of appeal or for obtaining an extension of time ended on June 1, 1999. See OCGA §§ 5-6-38 (a); 5-6-39 (a), (d). The trial court appointed new appellate counsel in an order entered June 17, 1999.

The evidence is undisputed that Glass expressed his desire to appeal his conviction to his counsel of record; there is no evidence in the record that Glass indicated to his counsel or anyone else that he did not want to pursue an appeal. In his letter to the public defender’s office, Glass stated, “I do not want [first appellate counsel] to represent me on my appeal.” Glass’ first appellate counsel testified that he was appointed to prosecute Glass’ appeal and that Glass wanted new counsel “to represent him in the appeal.”

Although Glass’ letter to the public defender’s officer suggested he intended to retain counsel, no attorney filed an entry of appearance before the expiration of the 30-day period for filing a notice of appeal. Nor did Glass formally terminate his first appellate counsel on the record. See Daniel, Ga. Criminal Trial Practice (1999 ed.), § 7-3, pp. 282-285. Therefore, counsel was not relieved of the responsibility of protecting Glass’ interests until the trial court entered the order allowing him to withdraw as counsel and substituting new counsel. Uniform Superior Court Rule 4.3; see also USCR 30.2 (after arraignment, defense counsel of record must complete trial unless replaced by substitute counsel or otherwise relieved by the trial court); Schaefer v. State, 238 Ga. App. 594 (1) (519 SE2d 248) (1999) (even if defendant informed counsel and the court that he no longer desired counsel’s services, counsel continued to represent defendant as counsel of record until released by the court).

Because Glass did not consent to forgoing an appeal of his conviction, the failure of Glass’ counsel to protect Glass’ right to appeal by filing a timely notice of appeal, or by obtaining an extension of time under OCGA § 5-6-39, constitutes ineffectiveness. Butts v. State, 244 Ga. App. at 367. Therefore, we must conclude the trial court abused its discretion in denying Glass’ motion for an out-of-time appeal. Rowland v. State, 264 Ga. 872, 875-876 (2) (452 SE2d 756) (1995); Webb v. State, 254 Ga. 130, 131 (327 SE2d 224) (1985).

2. In ruling on the motion for an out-of-time appeal, the trial court was limited to considering the allegations of ineffective assistance of appellate counsel only insofar as they involved the denial of Glass’ right to appeal. Ponder v. State, 260 Ga. 840 (1) (400 SE2d 922) (1991). Therefore, Glass’ remaining enumerations of error are not yet ripe for appellate review. Id. at 841-842; Balkcom v. State, 227 Ga. App. 327, 331 (489 SE2d 129) (1997). See Maxwell v. State, 262 Ga. 541, 542 (3) (422 SE2d 543) (1992) (defendant granted an out-of-time appeal may file a second motion for new trial; the trial court may exercise its discretion to refuse to reopen issues that it decided in the first motion for new trial).

Judgment reversed.

Andrews, P. J., and Ruffin, J., concur.

Decided February 2, 2001

Reconsideration denied February 16, 2001.

Louise T. Hornsby, for appellant.

Patrick H Head, District Attorney, Dana J. Norman, Ann B. Harris, Assistant District Attorneys, for appellee.


author: Andrews, Presiding Judge.

text:
    A00A1825.
    WENTWORTH v. ECKERD CORPORATION et al.
    (545 SE2d 647)
   Andrews, Presiding Judge.

Sheryl Wentworth appeals from the trial court’s grant of summary judgment to Eckerd Corporation d/b/a Eckerd Drugs in her slip and fall suit.

In order to prevail, Wentworth must prove that: (1) the store had actual or constructive knowledge of the hazard; and (2) she lacked knowledge of the hazard despite exercising ordinary care. Robinson v. Kroger Co., 268 Ga. 735, 736 (1) (493 SE2d 403) (1997). A defendant may be granted summary judgment in such a case when it meets its burden of showing that the record demonstrates an absence of evidence to support at least one essential element of the plaintiff’s case. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).

We apply a de novo standard of review to an appeal from the grant of summary judgment, viewing the evidence and all reasonable conclusions and inferences drawn from it in favor of the opponent of summary judgment. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). So viewed, the evidence was that Wentworth went into Eckerd around 6:30 p.m. on October 14, 1995, to buy a spiral notebook. She proceeded to that aisle, obtained her notebook, and walked to the first cash register nearest the photo lab. She noticed an unidentified Eckerd employee at the photo lab. Cashier Linderman, at the first register, directed her to the next register. Wentworth fell between the first and second registers, injuring her knee. Wentworth said she had no warning before the fall but, after the fall, she could tell she had something on her shoe, which she described as “[g]ooey, like soap[,]” a “clearish liquid” on a light floor. Wentworth had no idea how long the substance had been on the floor or how it got there.

Assistant manager Gooch had done a walk-through when the store opened, and part of his job was to walk the aisles during his shift, making sure everything was in place and nothing was on the floor. Gooch was in his office counting cash register drawers when Wentworth fell. Five minutes before her fall, however, he had walked through the “exact area” where she fell, and there was nothing on the floor. After Wentworth fell, Gooch examined the area and found what he called shampoo on the floor, which “looked like it was tracked up through the store” and was “noticeable” where Wentworth fell.

Prior to Wentworth’s fall, Linderman, the cashier, had been checking out customers and straightening shelves behind the registers since the beginning of his shift at 4:30 p.m. He could see the area where she fell and did “not see any spill or foreign substance on the floor where she fell. More specifically, I did not see the gooey substance on the floor before Plaintiff’s fall.”

While Robinson v. Kroger Co., supra, focused on the second prong of the cause of action, the plaintiff’s lack of knowledge, the crux of this case is whether the store had constructive knowledge of the hazard. Seed v. Smith &c. Mgmt. Corp., 242 Ga. App. 395 (530 SE2d 29) (2000). Constructive knowledge may be shown in two ways: (1) by showing that a store employee was in the immediate vicinity and had an opportunity to correct the hazardous condition before the fall, or (2) by showing that the substance had been on the floor for a sufficient length of time for knowledge to be imputed to the proprietor. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980); Seed, supra.

Wentworth acknowledged that she had no idea how long the substance had been on the floor and relies on the first method of proof, the presence of an employee, Linderman, in the immediate area. She argues that Gooch’s statement that, after she fell and he examined the area, the substance was “noticeable” conflicts with Linderman’s statement that he did not see the substance on the floor before the fall. Gooch further testified, however, that the substance “couldn’t have been on the floor very long at all, I mean, because I had just come through there.” This is consistent both with his statement that he had earlier walked through the area and noticed nothing and with Linderman’s statement that he could see the area and did not see any spill or foreign substance.

Wentworth argues that inferences from a number of facts create an issue requiring jury resolution. She deposed that two unidentified women customers came to her aid after she fell. From this fact alone, Wentworth infers that “if no other customers were there [in the store], then the shampoo had to have been on the floor in clear sight of at least three Eckerd employees for some time. Second, if there were two other customers present, one of them could have spilled the shampoo on the floor.”

“[A]n inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. [Cits.]” Lovins v. Kroger Co., 236 Ga. App. 585, 586 (1) (a) (512 SE2d 2) (1999). Shadburn v. Whitlow, 243 Ga. App. 555, 557 (533 SE2d 765) (2000); see Seed, supra at 396. That is all this argument does.

Initially, we note that only one employee, Linderman, was shown to have been in the area of the cash register and able to see the area when Wentworth fell. Gooch was in his office at that time. There is no evidence from which the unnamed employee seen at the photo counter by Wentworth as she approached the registers could have been identified, nor is there evidence the employee, at the time of the fall, could have seen the substance and had time to remove it before the fall. Barich v. Cracker Barrel &c., 244 Ga. App. 550, 551 (1) (536 SE2d 221) (2000); Pickering Corp. v. Goodwin, 243 Ga. App. 831, 832 (534 SE2d 518) (2000).

Further, that two other customers could have tracked the substance is of no worth to Wentworth. Missing from her argument is any indication that, assuming such tracking, the substance had been on the floor for a sufficient period of time that someone should have noticed it and cleaned it up. Both Kroger Co. v. Brooks, 231 Ga. App. 650 (500 SE2d 391) (1998), and Watson v. Kroger Co., 231 Ga. App. 741 (500 SE2d 631) (1998), relied upon by Wentworth, are distinguishable. In Brooks, Kroger put out sample cups of mousse for customers from 5:00 p.m. through the time of Brooks’ fall at 11:30 p.m. A trash can was placed near the mousse samples. Brooks fell in closed Checkout Lane 5, within 75 feet of the mousse display. The last verifiable inspection of Checkout Lane 5 had occurred at 8:00 p.m., and the paper cup of mousse upon which Brooks fell had been flattened and smeared over several feet around the flattened cup. This Court concluded that, under these circumstances, there were facts from which the jury could infer that the cup had been there long enough for someone prior to Brooks to slip on it and that the two employees two checkout counters away were in a position to discover the clearly visible hazard. In Watson, an identifiable employee stated, after Watson fell on ranch dressing in the produce aisle, that he had been meaning to clean it up and there was a dripping salad dressing jar in the display. This, too, precluded summary judgment.

This case is more similar to Pickering Corp., supra, and Barich, supra. In Pickering Corp., Goodwin fell in a puddle of water in the common area of a mall owned by Pickering. James, the manager of a tenant store in the mall, had seen a teenager walk through the mall spilling water in the common area. James immediately called security to advise of the hazard and turned to walk back to the spot. As he did, he saw Goodwin slip and fall. A security guard had walked through the area approximately two minutes before, and there was no water there.

As we pointed out in concluding summary judgment for Pickering was affirmed,

Decided February 16, 2001

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Robert J. Hulsey, Clifford E. Alexander, for appellant.

Swift, Currie, McGhee & Hiers, John W. Campbell, Kristine J. Moschella, for appellees.

Robinson did not change the historical holding that, absent some reason to be on notice of the likelihood of a given hazard arising, a proprietor is generally permitted a reasonable time after notice of a hazardous condition to exercise care in correcting such condition. [Cits.]

Pickering Corp., supra at 832.

In Barich, supra, Barich, her daughter, son-in-law, and granddaughter went to Cracker Barrel to eat dinner. They followed the hostess, Merrill, with the daughter and granddaughter behind Merrill, followed by Barich. As Barich walked toward the table, a waitress crossed in front of her to go to the kitchen with a tray of dirty dishes. After the waitress passed, Barich fell, and butter was found on her shoe and clothing after the fall. According to Barich, this unidentified waitress came running over and said it was her fault, that “something must have fell off my tray.” This Court concluded that the unidentified waitress’ statement was inadmissible as hearsay and that, even considering that statement, no constructive knowledge had been shown under these facts.

Therefore, as concluded by the trial court, summary judgment was proper for Eckerd Corporation because Wentworth did not produce any evidence to raise a jury question as to whether Linderman could have easily seen the substance.

Judgment affirmed.

Miller and Mikell, JJ., concur.


author: Johnson, Presiding Judge.

text:
    A00A1956.
    JESSON v. GCH & ASSOCIATES, INC.
    (545 SE2d 645)
   Johnson, Presiding Judge.

GCH & Associates, Inc. sued Worldwide Cellular, Inc., Teledata International, Inc., and Merritt Jesson in Fulton County State Court to recover a $45,000 consulting fee. GCH served Worldwide’s registered agent and Teledata’s registered agent with the complaint in their Atlanta offices. GCH served Jesson with the action at his residence in Tampa, Florida.

Jesson filed a pro se answer to the complaint. In his answer, Jesson expressly admitted that he could be served at his residential address of 4909 Lyford Cay Road, Tampa, Florida. And below his signature at the end of his answer, Jesson listed that same address.

Thereafter, GCH served Jesson with various discovery requests at his Tampa address. Jesson failed to respond to any of the discovery requests, so GCH moved the court to compel Jesson’s response and to strike his answer. GCH served Jesson with the motion at his Tampa address, but he did not respond. The Fulton County court granted the motion, ordering Jesson to comply with the discovery requests and to pay GCH’s attorney fees of $332.50 and striking his answer.

Two months later, GCH moved for a default judgment based on Jesson’s stricken answer and served him with the motion at his Tampa address. After filing that motion, GCH reached a settlement with Worldwide and Teledata for $12,500 and dismissed its actions against the corporate defendants with prejudice. Jesson subsequently filed a response to GCH’s motion for a default judgment. In his response, Jesson claimed that he had not gotten any of the discovery requests because, contrary to what he had stated in his answer to the complaint, he does not live at 4909 Lyford Cay Road, but actually lives at 4904 Lyford Cay Road in Tampa. The response does not explain how Jesson received service of the original complaint, which he answered, or service of the motion for default judgment, which he responded to, even though those documents were mailed to the same address as all the discovery requests.

The Fulton County court, however, did not rule on the motion for a default judgment and instead transferred the case pending against only Jesson to Cobb County State Court. There, GCH again moved for a default judgment, and Jesson filed a response to the motion. The Cobb County court granted the motion, finding that Jesson was clearly in default under OCGA § 9-11-55 because his answer had been struck, that Jesson had failed to file a motion under OCGA § 9-11-55 (b) to reopen the default, and that without such a motion the court was without discretion to open the default. The court entered judgment against Jesson in the amount of $32,500, plus $332 in attorney fees for having not responded to GCH’s discovery requests. Jesson appeals from the court’s judgment.

1. Jesson complains that the Cobb County court erred in granting GCH’s motion for a default judgment. The complaint is without merit.

As the trial court correctly found, Jesson clearly was in default because his answer had been struck. The trial court also found correctly that Jesson’s remedy was to move to open the default pursuant to OCGA § 9-11-55 (b).

Decided February 16, 2001

Eric P. Sabiston, for appellant.

Douglas J. Davis, for appellee.

Under OCGA § 9-11-55 (b), a prejudgment default may be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. . . . Generally, the opening of a default rests within the sound discretion of the trial court. However, compliance with the four conditions is a condition precedent; in its absence, the trial judge has no discretion to open the default.

Here, Jesson filed a response to GCH’s motion for a default judgment, but he did not move to open the default, let alone satisfy the four conditions required for opening default. Consequently, the trial court correctly ruled that it did not have discretion to open the default. The trial court’s entry of a default judgment against Jesson was proper.

2. Because of our holding in Division 1, we need not address Jesson’s argument that the Fulton County court erred in striking his answer pursuant to OCGA § 9-11-37 (d) as a sanction for his discovery abuses.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

       See OCGA § 9-11-55 (a); Sellers v. Nodvin, 207 Ga. App. 742, 744-745 (1) (429 SE2d 138) (1993); Freeman v. Ripley, 177 Ga. App. 522 (339 SE2d 795) (1986).

       (Citation and punctuation omitted; emphasis in original.) Stewart v. Turner, 229 Ga. App. 119, 121 (2) (493 SE2d 251) (1997).

       Id. at 122 (2).


author: JOHNSON, Presiding Judge.

text:
    A00A2323.
    EVANS v. THE STATE.
    (545 SE2d 641)
   JOHNSON, Presiding Judge.

After a jury trial, Alvin Evans was found guilty of possession of cocaine. He challenges the sufficiency of the evidence to support the conviction, and the trial court’s admission of a statement he made to police upon his arrest. Inasmuch as both challenges are without merit, we affirm his conviction.

Viewed in a light most favorable to the verdict, the evidence shows that police obtained a warrant to search Evans’ car. Officers secured Evans nearby while the search of the car took place. During the search, one of the detectives found a bag containing sixteen pieces of suspected crack cocaine tucked into the car’s front bumper. A few inches beneath that bag, attached to the inside of the front bumper, the detective found a magnetic “hide-a-key’ box. The magnetic box had a white powdery residue in it. Inside the car was a smoking pipe, scales with a white powdery substance on them, loose cash, clear plastic bags, a pager, and documentation showing that Evans owned the car.

After Evans was arrested, the detective read him the Miranda warning. When the detective asked Evans whether he understood his rights, Evans replied that he did. According to the detective, Evans did not ask for an attorney, did not invoke his right to remain silent, was not beaten or coerced into making a statement, and was not promised anything of value or given any hope of benefit in exchange for a statement.

Before Evans made a statement, the detective told him that he desired and would appreciate Evans’ cooperation in the investigation and that “his cooperation would be favorable as far as this investigation went.” The detective specifically told Evans, however, that legally he could not, and would not, make any promises to him.

Evans then gave the detective his statement, which the detective reduced to writing. Evans signed the statement, admitting therein that he was “responsible for all items within . . . the vehicle,” and “for the hide-a-key box attached to the fender which contained some cocaine.” In the signed statement, Evans specifically stated that he is familiar with his Miranda rights and is able to read and write. At the time he signed the document, Evans agreed with the detective that the statement was accurate as written.

1. Evans contends the evidence was insufficient to convict him because there was no evidence that he actually possessed cocaine. He argues that the only evidence actually tested and proven to be cocaine was the bag of crack cocaine found tucked into the car’s bumper. He maintains that there were other people in the area and that any of them could have tucked the bag into the bumper. Evans further urges that the items he constructively possessed, namely, the key box and the items found inside the car, were not tested and not proven to contain cocaine.

Contrary to Evans’ claim, the equal access rule does not require a reversal. The equal access rule entitles a defendant to acquittal where (1) the sole evidence of his possession of contraband is his possession of a vehicle in which the contraband is found and (2) others had equal access to the part of the vehicle where the contraband was found or the vehicle had been in the possession of others in the recent past.

First, Evans has not shown by the record evidence that others had equal access to his car or that his car had recently been in the possession of anyone else. The detective, the only witness who testified about the search site, stated that when he arrived on the scene, he did not recall seeing anyone in the immediate area other than police officers and Evans; within a few moments he noticed other people “coming up ... to observe what was transpiring.” Based on the evidence presented, the jury would have been authorized to reject Evans’ equal access argument.

Second, the fact that Evans possessed the vehicle was not the only evidence that he possessed cocaine. Evans admitted to police that he possessed the key box and that the key box contained cocaine. In addition, the key box was found inside the bumper, just inches away from the bag of crack cocaine. And, Evans admitted possessing the drug-related items found inside the car. In this case, there was direct and circumstantial evidence supporting a finding of possession that went beyond the inference of constructive possession which arises from ownership alone. Under these circumstances, the evidence was sufficient to find Evans guilty beyond a reasonable doubt of possession of cocaine.

2. Evans argues that his statement to police, in which he admitted possessing the key box and all items found inside the car, is inadmissible because the detective obtained the statement by improperly promising to confer upon him a benefit. We disagree.

The detective specifically testified that he did not promise Evans lenient treatment or a lighter sentence for his cooperation. The detective told Evans that he could not and would not make any promises, just that any cooperation would be favorable to the investigation. The trial court found that Evans’ statement was made voluntarily without the slightest hope of benefit.

For a confession to be admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or the most remote fear of injury. The promise of a benefit that will render a confession involuntary under OCGA § 24-3-50 must relate to the charge or sentence facing the suspect. The phrase “hope of benefit” generally means the reward of a lighter sentence. Georgia’s appellate courts have held that an officer is not offering a suspect a hope of benefit by telling him that his cooperation will be made known to others, e.g., the trial judge. And, we have held that a confession is not tainted because a suspect confesses only after the officer tells him, “I want to help you,” or after the officer says that if the suspect cooperates, he will inform the prosecutor and “it might help him.” We have also upheld the admission of a confession where the officers told the suspect that they would tell the prosecutor about his cooperation and that this might result in a reduced sentence, but that they were making no promises and had no authority to make any promise of leniency.

Decided February 16, 2001.

William C. Bushnell, for appellant.

Harry N. Gordon, District Attorney, William W. Tanner, Assistant District Attorney, for appellee.

When a trial court holds a suppression hearing and determines the voluntariness of a confession, that determination will be upheld unless it is clearly erroneous.* In this case, we cannot say that the trial court’s decision to admit the statement was clearly erroneous.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

        Petty v. State, 221 Ga. App. 125, 126 (470 SE2d 517) (1996).

        Brown v. State, 245 Ga. App. 149, 153 (4) (537 SE2d 421) (2000).

       See id.

       OCGA § 24-3-50.

        Sparks v. State, 232 Ga. App. 179, 184 (4) (501 SE2d 562) (1998).

       Id.; Cooper v. State, 256 Ga. 234, 235 (2) (347 SE2d 553) (1986).

        Gilliam v. State, 268 Ga. 690, 692 (3) (492 SE2d 185) (1997).

        Cooper, supra.

        Lyles v. State, 221 Ga. App. 560, 561 (1) (472 SE2d 132) (1996).

        Gadson v. State, 197 Ga. App. 315 (1) (398 SE2d 409) (1990).

        Leigh v. State, 223 Ga. App. 726, 727 (1) (478 SE2d 905) (1996).

       See Wiley v. State, 245 Ga. App. 580, 582-583 (3) (538 SE2d 483) (2000).


text:
    A00A2423.
    TANKSLEY v. THE STATE.
    (545 SE2d 652)
   Johnson, Presiding Judge.

A jury found Eugene Tanksley guilty of armed robbery, hijacking a motor vehicle, aggravated assault, possession of a firearm during the commission of a crime and theft by taking. He challenges the convictions entered on the verdict, claiming the trial court erred in denying his motion to try the charges related to each of the three incidents separately, in allowing the prosecutor to cross-examine him about the veracity of a witness and in charging the jury on an inapplicable principle of law. Because none of these arguments presents grounds for reversal, we affirm the convictions.

Viewed in a light most favorable to the verdict, the evidence shows that on Saturday, August 23, 1997, a woman sat in her car in a convenience store parking lot while her boyfriend went inside the store. Four men in a gray car pulled into the parking lot. Tanksley, whom the woman knew, got out of the car and jumped into her car. He snatched her purse, and when she tried to snatch it back, Tanksley told her “don’t make me pull out my pistol.” He got back into his own car and remained in the parking lot, cursing at the victim. The victim got out of her car to use the pay phone to call police, and, as her boyfriend stood with her, Tanksley remained where he was. Tanksley eventually drove away.

A few hours later, a different victim drove his car through a retail store parking lot. He and his girlfriend were “cruising” through the parking lot, as were many other people. Tanksley, whom he knew as “Cheeto,” drove his car toward the victim’s car and partially blocked him in. Tanksley told the victim, “I’ll hit your s — .” The victim told Tanksley to go on past. As Tanksley proceeded past, he scraped the victim’s car. The victim did not want any trouble and told his girlfriend not to worry about the damage to the car. Tanksley began bragging to the victim about how he hit the victim’s car, then asked, “Now what?” The victim asked Tanksley why it had “to be like that?” Tanksley grabbed a rifle from under the car seat, asked his passenger to hand him a gun clip and came toward the victim and his girlfriend. He told the victim, “I’ll kill you.” The victim and his girlfriend jumped out of the car and ran. Tanksley pointed the gun at other people in the parking lot, then drove the victim’s car away.

At 10:00 p.m., on September 10, 1997, an argument broke out between two groups of people in a residential area. A man driving a gray car slowly passed the people three times. A second man was in the car with him. Tanksley’s sister remarked, “There go Cheeto, let’s get this started.” Tanksley stepped out of the car, drew a large gun and fired shots into the air. As people started running, he began shooting at them. When it was over, five people had been shot.

1. According to Tanksley, the charges arose from three distinct incidents and they were improperly joined for trial. We hold that the trial court did not abuse its discretion in joining the offenses for trial.

When charges have been joined for trial solely on the ground that they are of the same or similar character, severance is mandatory; if they are joined for other permissible reasons, however, the trial court has discretion on the issue of severance. Offenses are of the same or similar character if, for example, they are both armed robberies or both drug offenses. Offenses are not joined solely because they are of the same or similar character where the similarity reaches the level of a pattern evincing a common motive, plan, scheme or bent of mind.

In all of the charged offenses, Tanksley used or threatened to use a gun; he used his car during the commission of each of the crimes; all incidents took place outside in public places, where there were groups of people present; in all of the incidents, the witnesses and victims knew Tanksley; in each of the incidents, Tanksley had a companion with him in his car; in the first and second incidents, Tanksley took the victims’ property; in all of the incidents, Tanksley engaged in conduct which drew attention to himself, such as yelling at his victims in public and driving slowly and repeatedly through crowds; Tanksley made no apparent effort to conceal his identity in any of the incidents and all of the incidents occurred at night, within a three-week period. Based on these facts, the incidents reached the level of a pattern and were so similar as to evidence a common bent of mind. The trial court did not abuse its discretion in denying Tanksley’s motion to sever the offenses.

2. According to Tanksley, the trial court erroneously permitted the prosecutor to ask him to comment upon the veracity of another witness.

During direct examination, Tanksley testified that he was not present when the third incident occurred at 10:00 p.m. He stated that he and his girlfriend were at his house until 11:00 p.m., that they left for her house on bicycles and that they spent the rest of the night at her house. On cross-examination, the prosecutor asked Tanksley: “So, if [your sister] told [the detective] that you left your home about 1:00 or 2:00 a.m., she would be lying?” Tanksley replied: “I guess so.”

In general, it is improper for counsel to ask one witness if another witness is lying, as a witness’ veracity is a matter to be determined by the jury. However, we fail to see how the prosecutor’s question violated this principle. The question merely emphasized a conflict in the evidence, which was the jury’s duty to resolve.

Decided February 16, 2001.

Peter D. Johnson, for appellant.

Moreover, even assuming the trial court erred in allowing the question, Tanksley has not shown how the question harmed him. In light of the overwhelming evidence placing Tanksley at the scene and identifying him as the shooter, it is not likely that this question regarding his alibi contributed to the verdict.

3. Tanksley complains that the trial court included in its jury charge the statement that the jury was “not bound to believe testimony as to facts incredible, impossible, or inherently improbable.” He urges that this charge should be given only in extraordinary cases, where there is testimony which runs “contrary to the great physical laws of the universe.” This case, he says, is not one of those cases. This argument presents no grounds for reversal.

When the trial court asked if there were exceptions to the charge, defense counsel replied that he had none, except on one unrelated matter. He neither made any objection to the charge on the grounds urged on appeal nor reserved any exceptions to the court’s jury charge. Such silence waives the right to raise the issue on appeal unless there has been a substantial error which was harmful as a matter of law. Assuming that the court’s charge was inapplicable here, our task is to determine whether it was harmful error.*

At trial, numerous victims and witnesses who knew Tanksley testified that they saw him commit the crimes with which he was charged. In light of the overwhelming evidence against Tanksley and considering the charge in its entirety, we cannot say that any error regarding this particular instruction was sufficiently prejudicial to deprive him of a fair trial or to have caused a gross miscarriage of justice. Accordingly, Tanksley’s failure to preserve the error constitutes a waiver of the issue.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

       Regarding the first incident, Tanksley was charged with robbery by force or intimidation. The second incident resulted in charges of armed robbery (related to the car theft), hijacking a motor vehicle, aggravated assault (of the driver’s girlfriend) and possession of a firearm during the commission of certain crimes (armed robbery, hijacking a vehicle and aggravated assault). As for the third incident, he was charged with five counts of aggravated assault and possession of a firearm during the commission of certain crimes (aggravated assault).

        Parker v. State, 242 Ga. App. 10, 11 (1) (528 SE2d 530) (2000).

       See Mangrum v. State, 244 Ga. App. 559, 560 (536 SE2d 217) (2000); Sanders v. State, 236 Ga. App. 578, 580 (1) (a) (512 SE2d 678) (1999).

         Sanders, supra; see Scroggins v. State, 237 Ga. App. 122, 123 (3) (514 SE2d 252) (1999).

        See Byrd v. State, 236 Ga. App. 485,487 (4) (512 SE2d 372) (1999); Culver v. State, 230 Ga. App. 224, 228-229 (2) (496 SE2d 292) (1998).

        Roberson v. State, 241 Ga. App. 226, 227 (1) (526 SE2d 428) (1999) (physical precedent only); Tucker v. State, 228 Ga. App. 321, 324 (2) (491 SE2d 420) (1997).

       See Tucker, supra.

       See id.; see generally Dorsey v. State, 259 Ga. 809 (3) (387 SE2d 889) (1990) (no error in allowing state to ask defendant if “everybody’s lying” except him).

       For a discussion of this charge, see Brandon v. State, 241 Ga. App. 887, 888-889 (2) (528 SE2d 809) (2000).

        Wiser v. State, 242 Ga. App. 593, 594 (1) (530 SE2d 278) (2000); see generally Clark v. State, 187 Ga. App. 232, 234 (4) (369 SE2d 550) (1988).

       Id.

       See Hunley v. State, 227 Ga. App. 234, 235 (1) (488 SE2d 716) (1997).

       See id.


text:
    A01A0122.
    HARPER v. THE STATE.
    (545 SE2d 650)
   Eldridge, Judge.

A Henry County jury found Howard A. Harper guilty of DUI — less safe driver and reckless driving. He appeals the jury’s verdict by challenging (1) the sufficiency of the evidence against him, and (2) the trial court’s denial of his motion for mistrial based on an allegedly improper comment made by the prosecutor during closing argument. Finding no merit to Harper’s contentions, we affirm.

1. The evidence shows that a Hampton city police officer found Harper’s car rolling slowly on the shoulder of a road just outside the Hampton city limits in Henry County. The officer discovered Harper slumped behind the wheel, smelling strongly of an alcoholic beverage. The officer asked Harper if he knew where he was, and Harper replied, “Spalding County.” When asked to exit the car, Harper almost lost his footing; he was unsteady on his feet, staggering; and his eyes were watery and bloodshot. A field alco-sensor test showed positive for the presence of alcohol. Subsequent attempts to conduct field sobriety tests were abandoned when it appeared Harper’s advanced state of intoxication prevented conducting such tests safely. Thereafter, Harper told another officer that he was driving home from work in Fairburn.

Harper contends the evidence was insufficient to show that he was driving or in actual physical control of a moving vehicle. We disagree. Besides the strong inferences that can be drawn from Harper’s presence slumped behind the wheel of a vehicle rolling along the shoulder of the road, Harper also admitted he was driving the automobile home from work. We find this evidence sufficient for a rational trier of fact to have found beyond a reasonable doubt that Harper was in actual physical control of a moving vehicle.

2. Closing arguments were not recorded. However, the trial transcript shows that Harper registered an objection to a portion of the State’s closing argument as containing an allegedly improper comment on the defendant’s failure to put up evidence. While not agreeing that the prosecutor’s comment was improper, the trial court, as a precautionary measure, instructed the jury that no adverse inference should be drawn from the defendant’s failure to testify and that the defendant has no burden of proof.

Decided February 16, 2001.

Webb, Stuckey & Lindsey, Martin C. Jones, for appellant.

John T Rutherford, Solicitor, Christopher E. Chapman, Assistant Solicitor, for appellee.

Later, at the hearing on the motion for new trial, the prosecutor’s allegedly improper comment was established as, “[I]f there was another person driving the vehicle, where is that person?” The trial court denied Harper’s motion for new trial on this ground, finding that the comment was not improper since the defense questions at trial seemed to imply that someone other than Harper had been driving the car. “The State may note in closing argument the defense’s failure to present any evidence to rebut the proof adduced by the State. It is reference to the failure of the defendant himself to testify which is prohibited.”

Here, the remark Harper finds offensive was related to the fact that Harper had the right to present evidence and subpoena witnesses, yet no one was brought forward as the “real driver” of the vehicle. This is not a comment upon Harper’s failure to testify, but “was merely a suggestion that the State’s proof of appellant’s guilt had not been rebutted.” As such, no error appears.

Judgment affirmed.

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

       See Morris v. State, 172 Ga. App. 832, 833 (1) (324 SE2d 793) (1984).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       Defense counsel’s questions were in the nature of “are you sure [Harper] wasn’t just parked on the side of the road and had been there for some time”; “did you check the engine to see if it was warm”; “when you arrived on the scene, did you see Mr. Harper’s car moving”; and “do you know that he [Harper’s brother-in-law] lives within two miles, within walking distance of where Mr. Harper stopped?” Indeed, before this Court, Harper argues that the State failed to prove he drove the vehicle to the shoulder of the road where it was found. Within this argument and defense counsel’s questions stands the clear implication that someone else must have driven the car.

       (Citations omitted.) Hutchinson v. State, 179 Ga. App. 485, 486 (2) (347 SE2d 315) (1986).

        Hufstetler v. State, 171 Ga. App. 106,110 (13) (319 SE2d 869) (1984).


author: Mikell, Judge.

text:
    A01A0277.
    REED v. THE STATE.
    (545 SE2d 655)
   Mikell, Judge.

A jury convicted Tony Orlando Reed of one count of armed robbery, three counts of forgery in the first degree, two counts of forgery in the second degree, two counts of financial transaction card fraud, one count of financial transaction card theft, and one count of theft by deception. He was sentenced to serve a total of 25 years, including 15 for the armed robbery. Reed appeals from the denial of his motion for new trial. We affirm.

1. Reed maintains that his trial counsel rendered ineffective assistance when she failed to present evidence of his alibi defense for the armed robbery. This enumeration of error is meritless.

Reed’s trial counsel, Yvonne Twyman-Williams, died prior to the hearing on the motion for new trial. At the hearing, Reed and his mother testified that they had informed counsel before trial that Reed was at home at the time the crime was committed. Reed testified that trial counsel told him mid-trial that she did not elicit alibi testimony because she forgot.

The burden of establishing the ineffective assistance of trial counsel is a heavy one that requires an appellant to establish both that counsel’s performance fell below an objective standard of reasonableness, and that, but for counsel’s deficient performance, there is a reasonable probability that the outcome of the trial would have been different.

A trial court’s determination that an accused has been afforded effective assistance of counsel will be upheld unless it is clearly erroneous.

(a) As for the first prong of this test,

there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic.

In this case, Reed offered no expert testimony showing that the decision to forgo alibi testimony was anything other than sound trial strategy. To the contrary, the only expert who testified, assistant district attorney Anne Long, stated that she and Twyman-Williams discussed the case on numerous occasions before trial; that TwymanWilliams adamantly maintained that the victim had fabricated the armed robbery; and that when Long and Twyman-Williams reviewed the evidence, Twyman-Williams never mentioned that she possessed any evidence to support an alibi defense. Accordingly, the only expert testimony presented supported the trial court’s finding that counsel’s decision was a strategic one.

If we continue to second guess trial counsel on strategy and tactics when counsel have faithfully and diligently performed their function, we would have a proliferation of appeals on the flimsiest of grounds. It is important for appellate judges to remember that a defendant is entitled to a fair trial but not a perfect one, for there are no perfect trials.

We agree with the trial court that Reed failed to show that trial counsel’s performance fell below the standard of reasonably effective assistance.

(b) Even if trial counsel’s performance had been deficient, Reed has failed to establish a reasonable probability that his trial would have ended differently if the alibi testimony had been introduced. At the hearing on the motion for new trial, Reed’s mother testified that Reed was home working on his car on the morning the armed robbery was committed, September 4, 1996. Ms. Reed also stated that she had taken vacation from work during the first two weeks of September because she was planning to move. However, Ms. Reed testified at trial that she took vacation leave from work during the last two weeks of September 1996. When asked about this discrepancy during cross-examination, Ms. Reed testified that she was sick during September and thus was on leave for the entire month. The trial court found this alibi testimony incredible, and on appeal, this Court must accept the trial court’s findings regarding the credibility of witnesses and disputed facts. It follows that the trial court’s determination that the presentation of this testimony would have had no reasonable likelihood of altering the outcome of the trial is not clearly erroneous. The trial court properly denied Reed’s motion for new trial on the basis of ineffective assistance of counsel.

2. Reed next asserts that the trial court erred in permitting the state to introduce rebuttal testimony concerning the good character of the armed robbery victim, Jeffrey Walker. Walker’s supervisor at work testified that Walker had a good reputation at work; that he would believe Walker’s testimony; that Walker was not excessively tardy or absent; and that he had not seen Walker display bizarre or erratic behavior. The evidence was offered to rebut Reed’s testimony that Walker had amassed significant debts related to drugs and prostitution and that when Reed met Walker, Walker was intoxicated or on drugs. Reed had testified that Walker and a man named “G” had coerced him into participating in a credit card scam and that “G” told Reed that Walker owed “G” “serious” money due to drugs and prostitution.

Reed contends that the supervisor’s testimony concerning Walker’s punctuality and behavior was irrelevant because Walker did not begin the employment at issue until four months after the armed robbery. While we find the testimony only marginally relevant, “[e]vidence of doubtful relevancy or competency should be admitted and its weight left to the jurors.” Moreover, “the admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” We cannot conclude that the trial court in the instant case clearly abused its discretion in admitting the evidence on this basis. In any event, harm, as well as error, must be shown for reversal. Walker’s sister testified in detail concerning Walker’s work habits during the time the crimes were committed. Because similar testimony was admitted without objection, we find it highly probable that any erroneous admission of the testimony objected to did not contribute to the jury’s verdict.

Reed also contends that the evidence constituted improper bolstering of Walker’s credibility because the state had elicited the bad character evidence concerning Walker during Reed’s cross-examination. This is factually inaccurate. The record shows that Reed testified on direct that “G” had told Reed that “G” “was supplying something” for Walker. Considering Reed’s testimony that his involvement in the credit card fraud arose out of a third party’s drug debt to “G,” the jury could have inferred that “G” was supplying drugs to Walker. Additionally, when asked on cross-examination what Walker’s demeanor was like, Reed offered that Walker was intoxicated or on drugs. It is clear from a reading of the transcript that the defense attempted to show that Walker was involved in illicit activity for which he owed “G” money. As the state is permitted to rehabilitate a witness whose credibility has been attacked, the trial court did not err in refusing to exclude the testimony on this ground.

Finally, Reed contends the testimony exceeded the proper scope of good character evidence permissible under OCGA § 24-9-84. “[G]ood character may be proved only by testimony of a witness as to the reputation of the person whose character is in issue.” A character witness may not be questioned regarding specific instances of conduct. However, at trial, Reed objected to the testimony only on the ground that it was irrelevant. An alternate objection may not be raised for the first time on appeal.

Decided February 16, 2001.

Lynn M. Kleinrock, for appellant.

J. Tom Morgan, District Attorney, Kristin L. Wood, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       The hearing took place nearly three years after trial.

        Wallace v. State, 272 Ga. 501, 503-504 (3) (530 SE2d 721) (2000). See Strickland v. Washington, 466 U. S. 668, 687, 694 (104 SC 2052, 80 LE2d 674) (1984).

        Ross v. State, 231 Ga. App. 793, 795-796 (1) (499 SE2d 642) (1998).

       (Citation, punctuation and emphasis omitted.) Jackson v. State, 230 Ga. App. 292, 293 (1) (496 SE2d 315) (1998).

       (Citation and punctuation omitted.) Id. at 294.

        Ramsey v. State, 272 Ga. 28, 30 (3) (526 SE2d 842) (2000).

       (Citation and punctuation omitted.) Hestley v. State, 216 Ga. App. 573, 576 (2) (455 SE2d 333) (1995).

        O’Neal v. State, 254 Ga. 1, 3 (3) (325 SE2d 759) (1985).

        McIntyre v. State, 266 Ga. 7, 10 (4) (463 SE2d 476) (1995).

        Johnson v. State, 238 Ga. 59, 61-62 (230 SE2d 869) (1976).

        Nance v. State, 272 Ga. 217, 222 (5) (526 SE2d 560) (2000).

        Waters v. State, 248 Ga. 355, 366 (5) (283 SE2d 238) (1981).

        Ferguson v. State, 221 Ga. App. 212, 217 (4) (470 SE2d 909) (1996).

        Williams v. State, 244 Ga. App. 26, 27 (2) (535 SE2d 8) (2000).


author: Ruffin, Judge.

text:
    A00A1797.
    WILLIAMS v. THE STATE.
    (545 SE2d 669)
   Ruffin, Judge.

A jury found Andy Williams guilty of first degree forgery. In two enumerations of error, Williams contends that his due process rights were violated. First, he argues that the jury panel was tainted by the comments during voir dire of several prospective jurors. Second, he asserts that his character was improperly placed before the jury. Williams’ assertions lack merit, and we affirm.

The record shows that, on July 29, 1995, Matthew Iseghohi was sleeping in his parked car when he heard someone reach in to take his car keys, and he awakened to find a gun pointed at his face. After struggling with the gunman, Iseghohi fled, and the gunman entered the car and drove away. Although the car eventually was recovered, some of Iseghohi’s belongings were missing from the car, including several books of blank checks. On September 21, 1995, Williams was arrested while attempting to cash one of the checks at a Winn-Dixie store. Iseghohi was taken to Winn-Dixie, and he identified Williams as the gunman. Williams was charged with armed robbery and first degree forgery. At trial, Williams admitted to forging the check, but denied robbing Iseghohi. The jury acquitted Williams of the robbery charge and convicted him of forgery.

1. In his first enumeration of error, Williams contends that the trial court erred in failing to excuse the entire jury panel after three prospective jurors made prejudicial statements during voir dire. Specifically, one prospective juror stated that, having been the victim of an armed robbery, he could not be fair and impartial. When Williams’ attorney asked if the juror would “want to know why [Williams] did this rather than whether or not he did this,” the juror responded affirmatively. Another prospective juror said that she found Williams’ attorney “silly, smug, slow and a poor listener” and that Williams himself looked “like he’s been cleaned up from the street.” The third prospective juror stated that, although he would decide the case based upon the evidence, he felt “like the guy’s guilty.” Although the trial court excused these three jurors for cause, Williams asserts that the entire panel should have been excused. We disagree.

In determining whether a trial court is required to excuse a jury panel for remarks made during voir dire, “[t]he inquiry is whether the remarks were inherently prejudicial and deprived [Williams] of [his] right to begin [his] trial with a jury free from even a suspicion of prejudgment or fixed opinion.” If so, then the trial court’s failure to excuse the panel constitutes an abuse of discretion.

Generally, dismissal of a jury panel is required when, during voir dire, a prospective juror relays information that is specific to the defendant and germane to the case for which the defendant is on triad. Dismissal is not required, however, when the statements “establish only gossamer possibilities of prejudice.” Accordingly, we have held that dismissal is not required when a prospective juror stated that, although she did not know the defendants, she believed that they were guilty. Also, we did not require dismissal when a prospective juror who knew the defendant stated that, based on what he had “found out” about him, he would not be able to be fair.

Here, the statements made by the three prospective jurors were not inherently prejudicial. As no juror actually knew the defendant, their statements conveyed no information personal to him, but merely reflected their opinions. Moreover, the jurors’ statements “did not link [Williams] to other criminal violations on his part which were complete and separate from the offense for which he was being tried.” Thus, the trial court did not abuse its discretion in failing to dismiss the entire jury panel.

Decided February 19, 2001

Zell & Zell, Rodney S. Zell, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

2. On direct examination, Williams admitted to forging Iseghohi’s check, but denied robbing him. According to Williams, at the time of the robbery, he was asleep at his aunt’s house. Williams testified, “I was a drug user, and I used my money that I worked for to buy my drugs . . . and I never . . . come out of the house after I obtained my drugs, because that was not necessary.” On cross-examination, the prosecutor asked Williams if he had ever “committed any crime in order to get more money?” Williams objected to the question and moved for a mistrial. Although the trial court sustained the objection, it denied the motion for mistrial. On appeal, Williams contends that the trial court erred in denying the motion for mistrial. Again, we disagree.

We review for manifest abuse of discretion a trial court’s denial of a motion for a mistrial, and we will reverse only if a mistrial is essential to the preservation of the defendant’s right to a fair trial. Here, Williams freely admitted that he engaged in illegal conduct for years in taking “cocaine, acid, angel dust. You name it, I’ve basically tried it.” Accordingly, we fail to see how one unanswered question regarding additional illegal conduct somehow undermined Williams’ right to a fair trial. Thus, we cannot say that the trial court abused its discretion in denying Williams’ motion. Moreover, we note that Williams was convicted of forgery only, and he admitted to this crime. Accordingly, even if the trial court had abused its discretion in failing to grant a mistrial, error, if any, would be harmless.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       (Punctuation omitted; emphasis in original.) Sharpe v. State, 272 Ga. 684, 688 (5) (531 SE2d 84) (2000).

        Callaway v. State, 208 Ga. App. 508, 511-512 (2) (431 SE2d 143) (1993).

       See Moore v. State, 156 Ga. App. 92, 93 (1) (274 SE2d 107) (1980) (in arson case, prospective juror’s statement that someone told him defendant was a “firebug” was inherently prejudicial); see also Lingerfelt v. State, 147 Ga. App. 371, 372 (1) (249 SE2d 100) (1978) (in rape case, prospective juror’s statement that he had heard defendant was a “peeping tom” was inherently prejudicial).

       (Punctuation omitted.) Sharpe, supra.

        Jordan v. State, 218 Ga. App. 679, 680 (1) (462 SE2d 801) (1995).

        Callaway, supra.

        Roberts v. State, 259 Ga. 441, 443 (2) (383 SE2d 872) (1989).

       See id.; Jordan, supra; Callaway, supra.

        Crumpton v. State, 244 Ga. App. 57, 59 (1) (a) (534 SE2d 809) (2000).

       See Hartry v. State, 270 Ga. 596, 599-600 (2) (512 SE2d 251) (1999).


text:
    A00A1843.
    SABBS v. THE STATE.
    (545 SE2d 671)
   Andrews, Presiding Judge.

Mitchell Sabbs was found guilty by a jury of three counts of cruelty to his six-month-old child. He appeals from the judgment of conviction entered on the guilty verdicts claiming that the evidence was insufficient to support the verdicts and that his trial counsel was ineffective for failing to object to improper closing argument by the prosecutor. We find the evidence was sufficient to support all three guilty verdicts and that, even if trial counsel was deficient in failing to object, Sabbs failed to prove that this failure was so prejudicial to his defense that the conviction should be reversed.

1. The evidence was sufficient to support the guilty verdicts. In the three counts at issue, Sabbs was charged pursuant to OCGA § 16-5-70 with causing the child cruel or excessive physical or mental pain by: (1) failing to seek medical treatment for the child’s fractured arms; (2) squeezing the child hard enough to leave bruising on the child’s abdomen and cause internal injuries; and (3) failing to seek medical treatment for the child’s abdominal injuries.

A physician testified for the State that the child was admitted to the hospital on November 27, 1996, and diagnosed with serious abdominal injuries. The medical evidence showed that the child was bleeding internally, was having difficultly breathing, and was suffering from an intestinal blockage which was causing her to vomit bile. It was necessary to insert a tube into the child’s stomach to pump out accumulating bile and relieve respiratory distress. The physician testified that the child’s abdomen was distended, painful to the touch, and displayed multiple bruises consistent with a traumatic injury which had caused the bleeding and blockage within the last 24 hours. The bruising was in the shape of finger marks consistent with the child having been forcefully squeezed by someone around the abdomen.

Because the child’s abdominal injuries appeared intentionally inflicted, the physician ordered x-rays of the child to determine if there were other injuries. The x-rays revealed that the child had suffered two fractured bones in each arm, a fractured leg, and three fractured ribs. Testimony from two physicians showed that the arm fractures were extremely painful injuries that were not likely to have resulted from a fall, but would have required great force applied directly to the arms sufficient to snap the bones. The physicians testified that the fractures appeared to be at least two to three weeks old but less than three months old.

The child’s mother testified that on the morning of November 26, 1996, she left the child with Sabbs, the child’s father, while she went to school during the day. She said the child had no abdominal bruising and no difficultly breathing when she left. When she arrived home that afternoon, she said Sabbs was with the child, and she discovered bruises on the child’s abdomen and noticed that the child had vomited and was having difficulty breathing. Sabbs testified and admitted that he was with the child that day, but he denied causing any injury to the child that day or at any other time. The evidence further showed that, after Sabbs started living with the mother and the child about three and a half months prior to the date the child was diagnosed with the various injuries on November 27, Sabbs took care of the child during the day while the mother went to school.

Although the evidence was circumstantial, we find it was sufficient to exclude every reasonable hypothesis save that of Sabbs’s guilt. OCGA § 24-4-6. The evidence was sufficient to allow the jury to conclude beyond a reasonable doubt that Sabbs caused the child cruel or excessive physical or mental pain by: (1) squeezing the child and causing serious abdominal injuries to the child while he was with the child during the day of November 26; (2) failing to seek immediate medical treatment for the abdominal injuries suffered by the child on November 26; and (3) failing to seek medical treatment for the fractured bones in both arms suffered by the child while he and the child’s mother were jointly caring for the child. OCGA § 16-5-70; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Sabbs claims his trial counsel was ineffective because he failed to object to a statement made by the prosecutor during closing argument that he posed a future threat to another younger child he had by the mother of the victim in this case. Although arguing Sabbs’s future dangerousness was improper, we find that defense counsel’s failure to object does not require reversal of the conviction. Cherry v. State, 230 Ga. App. 443, 447 (496 SE2d 764) (1998).

In order to obtain reversal of a conviction on a claim that his counsel was ineffective, Sabbs had the burden of proving not only counsel’s deficient performance, but also that the deficiency was so prejudicial to his defense that, but for the deficiency, there was a reasonable probability the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985). The trial court’s finding that Sabbs was afforded effective assistance of counsel must be upheld on appeal unless clearly erroneous. Parker v. State, 220 Ga. App. 303, 307 (469 SE2d 410) (1996).

Based on the medical evidence of the injuries suffered by the child and when those injuries occurred, plus evidence establishing that Sabbs was with the child during the period of time the injuries occurred, we find no reasonable probability that the outcome of the trial would have been different but for counsel’s failure to object. The trial court correctly ruled that Sabbs was not entitled to reversal of the conviction because of ineffective assistance of counsel.

Decided February 19, 2001.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Margaret E. Bagley, Mark A. Casto, Assistant District Attorneys, for appellee.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       The child’s mother had previously pled guilty to charges of cruelty to the child for failing to seek medical treatment for the child’s injuries.