author: Johnson, Chief Judge.

text:
    A99A1156.
    In the Interest of K. M., a child.
    (523 SE2d 640)
   Johnson, Chief Judge.

A parent’s rights to her child will be terminated only where there is clear and convincing evidence of present unfitness and where termination is in the best interest of the child. In deciding present unfitness, the juvenile court may consider a parent’s past history. The mother’s past history of drug abuse and incarceration, viewed in isolation, would certainly support a finding of unfitness. However, at the time of the last termination hearing, the mother’s circumstances had changed significantly: she was no longer in jail, was working full-time, had undergone drug counseling, and had established a home. As to the second issue, that of the best interest of the child, the evidence is undisputed that K. M., an older child, has a strong emotional attachment to her mother. Because of that bond and the mother’s recent progress, the child’s guardian ad litem recommended that the mother’s parental rights not be terminated, at least not at that time. We agree with the guardian and hold that the juvenile court’s decision terminating the mother’s parental rights is not presently supported by clear and convincing evidence. We therefore reverse.

The Henry County Department of Family & Children Services (“DFACS”) took temporary custody of K. M. in August 1996, when she was seven years old, after the mother left K. M. with a friend and did not return for her. At the time DFACS took custody of the child, the mother was incarcerated for theft by taking. The mother was jailed and released several more times while K. M. was in the custody of DFACS. She was jailed for such crimes as shoplifting, theft by receiving stolen property, driving with a suspended license, theft by taking, theft by deception and violating probation. It is not clear from the record how much time the mother spent in jail.

In October 1996, DFACS developed a case plan designed to reunite K. M. with her mother. The plan required the mother to maintain contact with DFACS, demonstrate sobriety, remain drug-free, maintain a permanent and stable home, and protect the child from sexual abuse. A DFACS caseworker testified that the mother complied only with the requirement that she maintain contact with DFACS.

A similar case plan was developed in March 1997. The caseworker testified that the mother failed to comply with any of the goals. A third plan was developed in September 1997. The goals remained the same except, this time, DFACS changed the overall goal from reunification to termination of parental rights.

At a termination hearing held in September 1998, the caseworker testified that the mother had spent seven of the past twelve months in jail. She added that the mother tested positive for drug use in April 1998.

The mother testified that she visited the child every two weeks as scheduled by DFACS, except for the times she was incarcerated. Of the 50 scheduled visits, the mother attended 19; the caseworker agreed that visits were missed due to the mother’s incarceration. When the caseworker informed the mother that the visits would be cut from twice a month to once a month, the mother complained and tried to get the number of visits increased. The mother testified that she brought K. M. something every time she visited, usually an outfit or two. The mother also visited her on her birthdays and had K. M.’s grandmother visit K. M. on Christmas when the mother was in jail. The mother said she kept DFACS advised of her whereabouts and presented documentation showing that she attended 45 Alcoholics Anonymous meetings in 1997.

A counselor from the detention center where the mother was confined from July 1998 through September 1998 testified that the mother successfully completed courses in parenting and victim impact and was counseled in substance abuse and family violence. The counselor taught some of the courses the mother attended and met individually with her at least twice a month. The counselor believed that the mother was motivated to do what was necessary to regain custody of K. M. and lead a drug-free life.

The mother’s brother testified that he stayed in close contact with the mother during her most recent incarceration and thought the mother’s attitude changed during the last detention. He believed she now had a positive attitude and was looking forward to “getting her life straight.”

At the October 26, 1998 hearing, a month after her release from detention, the mother testified that she was now working full-time at a restaurant and was renting a home. She had made arrangements for K. M. to sleep at her great-grandmother’s house while she works nights at the restaurant.

The child’s guardian ad litem submitted a written report to the juvenile court recommending that the juvenile court defer ruling on the termination petition. The guardian noted that she met with the child and that the child is extremely attached to her mother. This is supported by the mother’s testimony that K. M. does not want visitation with her mother to end and becomes upset when a visitation session is over and by case plan entries indicating that the child wants to continue contact with and return home to her family. The guardian ad litem wrote that the mother appeared to be making progress and recommended waiting to see whether the mother continued to do so.

“The termination of parental rights under OCGA § 15-11-81 involves a two-step analysis. First, the juvenile court must find clear and convincing evidence of parental misconduct or inability. [Cit.]” (Footnote omitted.) In the Interest of R. U., 223 Ga. App. 440, 442 (477 SE2d 864) (1996). Second, the court must determine whether termination is in the best interest of the child. Id. As there is no judicial determination that has more drastic significance than the permanent severance of a natural parent-child relationship, the severance of that relationship must be exercised cautiously and scrutinized deliberately. In the Interest of M. L. P., 231 Ga. App. 223 (498 SE2d 786) (1998). The standard of review in such a case is whether a rational trier of fact could have found clear and convincing evidence of present unfitness. Id.

It is clear that K. M. is deprived and the deprivation is caused by the mother’s failure to properly care for her. See OCGA § 15-11-81 (b) (4) (A) (i) and (ii). However, “[e]vidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in her natural child; clear and convincing evidence of present unfitness is required.” (Citations and punctuation omitted; emphasis in original.) In the Interest of R. A., 226 Ga. App. 18, 20 (486 SE2d 363) (1997); see In the Interest of D. C. N. K., 232 Ga. App. 85, 90 (501 SE2d 268) (1998). Despite the mother’s past conduct, there is not clear and convincing evidence of present unfitness.

During her most recent incarceration, the mother underwent extensive counseling and seemed to undergo a change in attitude and motivation. In the period between her release and the last termination hearing, she became gainfully employed, rented a home and made arrangements for K. M.’s care while she works.

We realize that a short period of progress will not, in most cases, negate years of parental misconduct. See In the Interest of J. S., 232 Ga. App. 876, 880 (1) (502 SE2d 788) (1998). In this case, however, the mother’s recent progress is significant and, according to her counselor and brother, seems to be accompanied by the mother’s new-found desire to change her life.

Termination of parental rights is a remedy of last resort which can be sustained only when there is clear and convincing evidence that the cause of the deprivation is likely to continue. See In the Interest of R. M., 194 Ga. App. 888, 889 (3) (392 SE2d 13) (1990). The evidence is not clear and convincing, at least at this time, that the deprivation is likely to continue.

In addition, the extreme sanction of termination cannot be imposed where it is not in the best interest of the child. See OCGA § 15-11-81 (a); In the Interest of C. J. S., 195 Ga. App. 741, 743-744 (5) (395 SE2d 35) (1990). Ten-year-old K. M. is emotionally attached to her mother and desires to be reunited with her. The permanent severance of this relationship would be detrimental to this child’s well-being. See generally id.; In the Interest of R. U., supra. While we are reluctant to reverse the juvenile court’s determination, no judicial determination is more drastic than the permanent severing of the parent-child relationship. In the Interest of K. J., 226 Ga. App. 303, 306 (1) (486 SE2d 899) (1997); In the Interest of C. J. S., supra. In light of the mother’s recent progress and the attachment the child has to her, we reverse the judgment and remand the case for the establishment of a reunification plan, subject to whatever disposition is warranted by future events and those occurring since the last termination hearing. See In the Interest of D. C. N. K., supra at 90.

Decided October 19, 1999

Reconsideration denied November 4, 1999.

Kelley S. Powell, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, James T. Chafin III, for appellee.

Judgment reversed and case remanded with direction.

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

       The juvenile court also terminated the parental rights of K. M.’s father. Only the mother appeals in this case.

       We note that we have no way of knowing whether the mother has continued on this path since the last hearing. On remand, however, the juvenile court will have, and of course will consider, that information in reevaluating the case.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A99A1181.
    WILSON v. THE STATE.
    (523 SE2d 613)
   Miller, Judge.

Charged with deposit account fraud, Donald Wilson pled nolo contendere and was sentenced to one year, commuted to time served. Citing several enumerations of error, he appeals. We affirm.

Wilson contends he should not have been prosecuted for the offense because the case was placed on the dead docket. Based on this contention, he moved to modify his sentence, which the trial court denied. Placing a case on the dead docket does not constitute either a dismissal or termination of the prosecution in the accused’s favor. The case is still pending and can be called for trial at the judge’s discretion. Wilson also claims that the State’s motion to remove the case from the dead docket included a request for dismissal subsequently granted by the trial court. Although “dismiss” is in the title of the motion, the body of the motion requests only that the case be removed from the dead docket. This is also reflected in the court order shown on the same page of the State’s motion which grants only a removal of the case from the dead docket. Despite its title, the motion was not a motion to dismiss.

Decided October 18, 1999

Reconsideration denied November 4, 1999

Donald P. Wilson, pro se.

Peter J. Skandalakis, District Attorney, Brett E. Pinion, Assistant District Attorney, for appellee.

In two enumerations, Wilson claims that he did not know of or was not provided counsel. The transcript reflects otherwise. In fact, when asked by the trial court if he discussed his plea with his attorney and whether he was satisfied with his attorney’s performance, he responded affirmatively.

Wilson’s remaining enumerations of error are without merit as we will not consider issues that were not raised and preserved in the trial court. Additionally, “[a] valid plea of guilty or nolo contendere will waive any defenses and objections save whether such plea was voluntarily entered by defendant and accepted after proper inquiry by the trial court.” Wilson made no objection before the trial court accepted his plea and imposed sentence, and he does not challenge the validity of his plea here on appeal.

Judgment affirmed. Blackburn,

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

        McCord v. Jones, 168 Ga. App. 891, 892 (311 SE2d 209) (1983).

       Id.

       Cf. Law Offices of Johnson & Robinson v. Fortson, 175 Ga. App. 706, 707 (334 SE2d 33) (1985), overruled on other grounds, MMT Enterprises v. Cullars, 218 Ga. App. 559 (462 SE2d 771) (1995).

        Harris v. State, 234 Ga. App. 126, 128 (2) (505 SE2d 49) (1998).

       (Citation omitted.) Moffett v. State, 228 Ga. App. 73, 74 (491 SE2d 126) (1997).


text:
    A99A1377.
    OVERAND v. THE STATE.
    (523 SE2d 610)
   Miller, Judge.

When police went to investigate a domestic disturbance call, Laura Sue Overand, who was at the residence, attempted to leave despite repeated demands from police that she remain during the investigation. She was convicted of obstructing a law enforcement officer. Overand appeals, claiming that police lacked an articulable suspicion to detain her. Because the information received from the dispatcher and the corroboration at the scene gave police an articulable suspicion, we affirm.

1. To constitute unlawful obstruction of an officer, OCGA § 16-10-24 (a) requires that the obstructed officer be in the lawful discharge of his official duties. Refusal to remain at an alleged crime scene pending a brief official police investigation constitutes unlawful obstruction. But if police lack an articulable suspicion, their detention and questioning of a witness or suspect do not constitute official duties and, though obstructed, are insufficient for an obstruction conviction.

Here a dispatcher, based on a domestic disturbance call received at 1:30 in the morning, informed patrolling officers that a white female was pointing a gun at a white male at a particular address, that she was refusing to leave, and that the male was in the driveway of the residence. Officers went to the address and observed a white male sitting in a car at the bottom of the driveway and a white female (Overand) standing next to the car and arguing vigorously with the male. As police approached, Overand strode away, got in another car, and attempted to leave the scene despite six repeated demands from one of the officers that she remain while they investigated the alleged crime. She was arrested for obstruction.

A dispatcher who reports a crime at a specified location gives police an articulable suspicion to investigate and detain individuals at the scene, particularly where police observations on arriving at the scene corroborate the dispatcher’s report. Even if the dispatcher’s information comes from a citizen or an unidentified informant, the investigatory detention is valid, for patrolling officers are not required to question dispatchers about the source of the information. Here police observations of a white female arguing vigorously with a white male in the driveway of the reported crime scene corroborated the information received from the dispatcher. While demanding that Overand stay, police also discovered a pistol, further corroborating the dispatcher’s report. Corroboration only solidifies the existence of an articulable suspicion.

As the evidence sustained a finding of an articulable suspicion, the court did not err in refusing to grant Overand a directed verdict.

Decided October 18, 1999

Reconsideration denied November 4, 1999

W. Keith Davidson, E. Talley Myrick, for appellant.

Gerald N. Blaney, Jr., Solicitor, Traci R. Soderberg, Assistant Solicitor, for appellee.

2. The court charged the jury as to the guidelines in investigatory detentions:

Now, a law-enforcement officer is allowed to temporarily detain persons at the scene of an alleged crime scene for the purpose of investigating any reported criminal conduct in which those persons may have been involved, either as a victim or perpetrator. During any such temporary detention no person has a duty to talk with a law-enforcement officer.

Overand complains that the instruction did not require the jury to find that police had an articulable suspicion before the jury could find police were justified in detaining Overand for investigatory purposes.

As set forth above, the evidence is overwhelming that police had an articulable suspicion when they demanded that Overand remain at the location during the investigation. Moreover, the need for finding an articulable suspicion is inherent in the instruction’s language that the criminal conduct must have been “reported” and that the resulting investigation was taking place at the “alleged crime scene.” It would appear that the court was attempting to simplify the concept of articulable suspicion for the jury. Even if this charge lacked clarity, when considered in connection with the charge as a whole, it is not so misleading-as to constitute reversible error.

Judgment affirmed.

Barnes and Ellington, JJ., concur.

       See OCGA § 16-10-24 (a).

        Wynn a State, 236 Ga. App. 98, 99 (2) (511 SE2d 201) (1999).

       See Walker v. State, 228 Ga. App. 509, 512 (4) (493 SE2d 193) (1997); Copeland v. State, 213 Ga. App. 39, 41 (2) (443 SE2d 869) (1994).

        Wynn, supra.

        Richardson v. State, 239 Ga. App. 345 (521 SE2d 239) (1999); see Cunningham v. State, 231 Ga. App. 420, 421 (1) (498 SE2d 590) (1998) (“[i]n forming an articulable suspicion, an officer is entitled to rely on the information given him by a fellow officer,” including a dispatcher) (citation and punctuation omitted); McDaniel v. State, 227 Ga. App. 364, 366 (2) (489 SE2d 112) (1997) (dispatcher call to look out for specified vehicle and observation of vehicle fitting the description give rise to an articulable suspicion and justify stop).

        Chumbley v. State, 180 Ga. App. 603, 604 (349 SE2d 823) (1986).

       See Richardson, supra; State v. McFarland, 201 Ga. App. 495, 496 (411 SE2d 314) (1991).

       See Brown v. State, 163 Ga. App. 209, 212 (4) (c) (294 SE2d 305) (1982).


author: Andrews, Presiding Judge.

text:
    A99A0836.
    WRIGHT v. BARNES.
    (524 SE2d 758)
   Andrews, Presiding Judge.

Melanie Wright appeals from the denial of her motion for new trial after a jury awarded her zero damages on her claims for medical expenses and pain and suffering following an automobile accident. Among her enumerations of error is the claim that the trial court erred in entering an order denying her motion for new trial without holding a hearing on that motion. The record shows that Wright filed a timely motion for new trial on August 28, 1994. There is a rule nisi setting the motion down for hearing on October 22, 1998. On October 13, 1998, before holding the hearing, the trial court denied the motion for new trial.

Decided November 4, 1999.

Dozier, Lee, Graham & Sikes, Lester Z. Dozier, Jr., James V. Pleasants, for appellant.

Whelchel, Brown, Readdick & Bumgartner, Brenda K. Fleocer, for appellee.

Our case law holds that a movant on a motion for new trial is entitled to a hearing on that motion. Gantt v. Sweatman, 162 Ga. App. 738 (293 SE2d 359) (1982), citing Foster v. State, 230 Ga. 870 (199 SE2d 790) (1973) and Shockley v. State, 230 Ga. 869 (199 SE2d 791) (1973). Because there is nothing in the record showing that Wright waived or abandoned her right to a hearing, she was entitled to have the motion heard before the trial court ruled on it. See Peyton v. Peyton, 236 Ga. 119 (223 SE2d 96) (1976). Therefore, we are remanding this case to the trial court for a hearing on Wright’s motion for new trial.

In light of our holding above, we do not address the remaining enumerations of error.

Judgment reversed and case remanded with direction.

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


author: Phipps, Judge.

text:
    A99A0909.
    FRANKS v. THE STATE.
    (524 SE2d 545)
   Phipps, Judge.

Donald Scott Franks was convicted of one count of burglary of a Wal-Mart layaway storage trailer behind the Wal-Mart in Canton, Cherokee County. On appeal, he enumerates four errors which raise three primary issues.

First, was the Wal-Mart storage trailer a building within the meaning of the burglary statute? Second, did the warrant authorizing the search of his home contain a valid description of the home? Third, was the evidence sufficient to authorize his conviction? Because we find against Franks on each of these questions, we affirm his conviction.

During the 1997 Christmas season, the Wal-Mart store in Canton rented storage trailers to provide extra space for items purchased on layaway. The trailers were delivered to Wal-Mart as needed. They were placed on the parking lot approximately 25 to 35 feet behind the store. The trailers were made of metal and measured 10 feet x 10 feet x 48 feet. They had no wheels but resembled trailers for an 18-wheel truck.

On the night of November 20, 1997, Wal-Mart employees found several of the trailers had been broken into. The locks had been cut. The employees found a pair of bolt cutters on the ground near the trailers. Around the time the break-ins were noticed, several employees saw a van near the trailers. They saw a man enter the van on its passenger side and a woman drive it away. Two of the employees spoke to the man before he entered the van. One of the employees recognized the man as Franks and knew where he lived.

Based upon information supplied by Wal-Mart employees, police surveilled Franks’s home the next day. A van in the driveway matched the description of the one seen at Wal-Mart and had the same tag number. Eventually, Franks’s wife left the residence in the van. The police followed her and observed her stop beside another van occupied by Franks and another man. The police suspected that Mrs. Franks noticed their surveillance, because later she abandoned the van and began walking. The police stopped her and the van carrying Franks and took the two of them to the van which she had abandoned.

After obtaining permission from Franks, the police searched the van and found boxes filled with new toys, clothing and tools, under a sheet in the rear of the van. The merchandise bore Wal-Mart tags, and “Wal-Mart” was written in large letters on the boxes.

Based on these events, Canton Police Detective Kevin Mantooth obtained a warrant to search Franks’s home. There, the police found more new merchandise. Many items bore Wal-Mart labels, and some had Wal-Mart layaway tags. In a shed they found many still packaged toys and electronics with Wal-Mart labels, including televisions, boom boxes and video cassette recorders. Battery packs for Wal-Mart toys were being charged in the shed. The merchandise seized was taken to Wal-Mart, and a store official identified $6,000 worth of the store’s property.

At trial, Franks was identified as the man seen entering the van near the layaway trailers on the night of the break-ins. His wife, who was granted immunity, testified that on that night she drove her husband to Wal-Mart, he exited in front of the store and walked around to the back and she waited ten to fifteen minutes before driving to the area of the trailers, where he loaded boxes of merchandise into the van.

1. Was the layaway trailer a building within the meaning of the burglary statute? The burglary indictment alleged that Franks “without authority and with the intent to commit a theft therein, enter[ed] a building to wit: a lay-away storage facility, located behind the Wal-Mart Supercenter at 1550 Riverstone Parkway, Canton, Georgia, said storage facility rented and used by Wal-Mart Supercenter # 518.” (Emphasis supplied.) Franks alleges that the trial court erred in denying his motion for directed verdict, on the ground that there was insufficient evidence to establish that the layaway trailer was a building within the meaning of the burglary statute.

Georgia’s criminal code defines burglary as:

when, without authority and with the intent to commit a felony or theft therein, [one] enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another or enters or remains within any other building, railroad car, aircraft, or any room or any part thereof.

Because the statute does not define “building,” we must decide whether the Wal-Mart layaway trailer was a building within the meaning of the burglary statute.

“Where our appellate courts have considered the meaning of the word ‘building,’ we have defined or interpreted it broadly.” In Estep v. State, we held that a storehouse is a building within the meaning of the burglary statute. In this instance, the layaway trailer functioned as a storehouse for Wal-Mart. It was a roofed and walled structure on Wal-Mart’s property that served the purpose of sheltering and safekeeping Wal-Mart’s merchandise.

Franks asserts that this metal storehouse cannot be considered a building because it lacks some characteristics commonly associated with buildings, such as a permanent position on the space where it was built and construction with wood, brick or concrete. We held in Smith v. State, that Georgia’s burglary statute “does not limit its application to buildings of any particular type or in any particular condition.” Williams v. State underscores the point. There, we held that a chicken coop was a building and stated, “The fact that it was [e]nclosed with wire instead of [any] other material, in our judgment, makes no difference.”

Also there is no requirement that a building must be permanently attached to a particular ground site. The fact that the trailer could be moved without having to dislodge it from the ground did not diminish its capacity to function as a storehouse. Like the storehouse in Estep, we find this layaway trailer is a building under the burglary statute. The trial court did not err in denying Franks’s motion for directed verdict.

2. Franks asserts that the trial court erred in instructing the jury that

[a] building is an enclosed or partially enclosed structure, manmade in whole or in part, capable of ingress or egress by a person, usually on a fixed site, designed or used for the purpose of housing or providing protection for property or persons, whether permanently or temporarily.

He claims that by incorporating the phrase “whether permanently or temporarily” into the definition, the trial court improperly shifted to him the burden to prove that the trailer was not a building. A building may be placed on a site temporarily, and the instruction did not shift any burden of proof to Franks. Further, the court instructed the jury that the State was required to prove every essential element of the offense beyond a reasonable doubt and that the burden of proof never shifted to Franks. The trial court did not err when it instructed the jury on the definition of a building.

3. Did the search warrant contain a valid description of the place to be searched? At the suppression hearing, the State presented a certified copy of the search warrant. It referred to “Exhibit A” for the particular place to be searched, but no exhibit was attached. The State also presented a certified copy of the warrant affidavit from Detective Mantooth. Like the search warrant, the affidavit referred to “Exhibit A” for the description of the place to be searched, and it did have the exhibit attached.

Mantooth testified that he submitted his affidavit, with the proposed search warrant, and “Exhibit A” to a Cherokee County magistrate. The documents were not attached to each other. According to Mantooth, the judge read all the documents, signed the warrant and made copies for Mantooth. The certified copy of “Exhibit A” has the judge’s initials and the docket number assigned to the search warrant handwritten in its upper right-hand corner. Mantooth testified that he then went to Franks’s home to execute the warrant. He left a copy of the warrant and “Exhibit A” there. It is undisputed that “Exhibit A” accurately described Franks’s residence.

Decided November 4, 1999.

Cannon & Cannon, David L. Cannon, Jr., for appellant.

Franks claims that the search of his home was illegal because the warrant did not itself describe his home and the copy of the warrant on file at the magistrate court did not have attached to it the document which described Franks’s residence.

The requirement that a search warrant particularly describe the place to be searched is fulfilled if the warrant contains a description that “sufficiently permits a prudent officer executing the warrant to locate the premises, person or property [to be searched] definitely and with reasonable certainty, and without depending upon his discretion.” In determining whether the subject place is sufficiently described in the warrant, our courts read the warrant as a whole and consider other evidence, including, but not limited to, the supporting affidavit.

Descriptions appearing in warrant applications or other documents may provide the necessary particularity if the document bearing the description accompanies the warrant and the warrant expressly refers to the other document to incorporate it by reference. In this instance, the warrant incorporated “Exhibit A” by reference, and, although “Exhibit A” was not stapled to the warrant, Mantooth had it with him when he executed the warrant and he left a copy at the home. Under these circumstances, we find the particularity requirement was satisfied. The trial court did not err in denying Franks’s motion to suppress.

4. Was the evidence sufficient to authorize the jury to convict? Viewing the evidence, as we must, in the light most favorable to the State, we find that it was sufficient for a rational trier of fact to find beyond a reasonable doubt that Franks committed burglary.

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.

Garry T. Moss, District Attorney, Allen D. Morris, Scott T Poole, Assistant District Attorneys, for appellee.

       (Emphasis supplied.) OCGA § 16-7-1 (a).

        Smith v. State, 226 Ga. App. 9, 10 (485 SE2d 572) (1997).

       129 Ga. App. 909, 912 (2) (201 SE2d 809) (1973).

       Supra at 11.

       105 Ga. 814 (32 SE 129) (1898).

       Id. at 815.

       See 12A CJS, Burglary, § 34.

       (Punctuation omitted.) Minter v. State, 206 Ga. App. 692, 693 (1) (426 SE2d 169) (1992).

       Id.

        State v. Slaughter, 252 Ga. 435, 439 (315 SE2d 865) (1984).

       See United States v. Maxwell, 920 F2d 1028, 1031 (D. C. Cir. 1990); Commonwealth v. Accaputo, 380 Mass. 435, 446 (404 NE2d 1204) (1980); see also LaFave, Search & Seizure (3rd ed.), § 4.5 (a).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Gray v. State, 213 Ga. App. 507, 509 (1) (445 SE2d 328) (1994).


author: Eldridge, Judge.

text:
    A99A1877.
    MASSINGILL v. THE STATE.
    (524 SE2d 746)
   Eldridge, Judge.

Johnathan Anthony Massingill appeals from a Cobb County jury verdict finding him guilty of reckless conduct and terroristic threats arising from an incident wherein Massingill became intoxicated; fired a pistol in the air to frighten his brother and his girlfriend, with whom he had been arguing; and then threatened to kill Officer R. Littler, one of the police officers who subsequently answered the “person shot” 911 call. Finding no merit to Massingill’s claims of error, we affirm.

1. Massingill contends that the prosecutor improperly referred to Officer Littler as an “expert” because he was not qualified as an expert, and such reference gave undue influence to the officer’s testimony. As enumerated, this claim of error was not raised in the court below. Accordingly, it is waived on appeal. Earnest v. State, 262 Ga. 494, 495 (1) (422 SE2d 188) (1992).

2. Massingill re-asserts the above-referenced enumeration of error as the basis for a claim of ineffective assistance of trial counsel, because counsel failed to object to the prosecutor’s reference to Littler as an “expert.”

A motion for new trial was not filed on Massingill’s behalf, so a claim of ineffective assistance of counsel was not raised in the court below, and no evidence has been adduced thereon. Further, the record shows that the instant appeal is the “earliest practicable moment” that current counsel could raise an ineffective assistance claim against trial counsel. Notwithstanding, if Massingill’s claims can be resolved as a matter of fact or law upon the existing record, we will not remand this case. Gomillion v. State, 236 Ga. App. 14 (512 SE2d 640) (1999).

At the beginning of the direct examination of Officer Littler, the State established that the witness had 15 years experience as a Cobb County police officer and is a certified law enforcement officer. During the course of the direct exam, the prosecutor asked Littler numerous questions based upon the officer’s “training and experience.” Defense counsel, during cross-examination, elicited information from the officer regarding the workings of a .44 magnum pistol containing Black Talon ammunition; this information adduced by the defense was based solely on the officer’s knowledge gained through his experience and training as a police officer.

Thereafter, on re-direct, the prosecutor asked Officer Littler whether shooting a gun in the air constituted a gross deviation from the standard of care that a reasonable person would exercise. It was only at this point that defense counsel objected that “He’s not testifying as an expert. The question’s invading the realm of the jury.” The State countered that the officer “does have knowledge both that of a layperson and expert because of his experience and training as a police officer.” The trial court permitted the testimony.

(a) With 15 years on the force and certification training, the record shows that Officer Littler was qualified to testify as an expert in law enforcement. “To qualify as an expert generally all that is required is that a person must have been educated in a particular skill or profession!;] his special knowledge may be derived from experience as well as study.” (Citations and punctuation omitted.) Morrow v. State, 230 Ga. App. 137, 140 (3) (b) (495 SE2d 609) (1998). Moreover, the officer’s expertise was tacitly recognized by all parties during questioning on both direct and cross examinations.

(b)

If, after qualifying the witness as an expert but without formal tender, counsel proceeds to ask for expert opinion evidence, based upon either a hypothetical or facts within the personal knowledge of the witness, the trial court has tacitly or impliedly accepted the witness as an expert. Further, if the opposite party objects to the expert opinion and the trial court overrules the objection, then the court has impliedly accepted the witness as an expert.

(Citations and punctuation omitted.) In the Interest of C. W. D., 232 Ga. App. 200, 207-208 (3) (b) (501 SE2d 232) (1998).

As Officer Littler was qualified to testify as an expert in law enforcement, was questioned as such by the defense and the State, and was either tacitly or impliedly accepted as such by the trial court, the prosecutor’s reference to him as an “expert” provided no basis for a sustainable objection on the part of Massingill’s trial counsel. Trial counsel’s failure to pursue a futile objection does not constitute ineffective assistance. Mackey v. State, 235 Ga. App. 209-210 (509 SE2d 68) (1998). Thus, on the record, the instant claim of ineffective assistance of trial counsel is without merit.

3. Lastly, Massingill contends that the opinion testimony from Officer Littler invaded the province of the jury. In this case, the objected-to testimony went to an element of the offense of reckless conduct as stated in the indictment, i.e., whether shooting a gun into the air while standing beside another person deviates grossly from the standard of care a reasonable person would exercise. OCGA § 16-5-60. This is a conclusion a jury ordinarily can draw for itself. See Smith v. State, 247 Ga. 612 (277 SE2d 678) (1981).

Decided November 4, 1999.

Allen & Barber, W. Keith Barber, Robert D. Pope, for appellant.

However, we conclude that any error in the admission of such testimony must be considered harmless. Carroll v. State, 185 Ga. App. 857, 858-859 (1) (366 SE2d 232) (1988). While the officer’s opinion testimony went to an element of the offense of reckless conduct, it was not an opinion as to the ultimate issue, i.e., whether Massingill was guilty or innocent of the offense as charged. Compare Nolton v. State, 196 Ga. App. 690, 691-692 (2) (396 SE2d 605) (1990). Nor did such testimony “usurp the jury’s authority on the issue of witness credibility.” Hilliard v. State, 226 Ga. App. 478, 482 (487 SE2d 81) (1997).

Further, the evidence of criminal negligence was overwhelming: at the time of the incident, Massingill stated to the police that he deliberately fired a gun into the air, because “he was mad”; at trial, Massingill testified “I was arguing with anybody that came along. I was intoxicated. ... I just got to a point where I couldn’t — didn’t want to stand for anything anymore. . . . And I just went as far as I could, so I went for my pistol.” He testified that, thereafter, the gun fired accidentally. See Keye v. State, 136 Ga. App. 707 (1) (222 SE2d 172) (1975); compare Sumner v. State, 210 Ga. App. 856 (1) (437 SE2d 855) (1993). In addition, the court charged the jury on the presumption of innocence, the State’s burden to prove guilt beyond a reasonable doubt, the elements of the charged offenses, and the jury’s exclusive responsibility to decide guilt or innocence. Thus, any error in overruling this objection was harmless, because, like the erroneous admission of conclusory testimony in Carroll v. State, supra at 858-859 (1), “in the context of the other evidence it is highly probable that the error did not contribute to the judgment.” (Citation and punctuation omitted.) Id. at 858. See generally Palmer v. State, 186 Ga. App. 892, 901 (4) (369 SE2d 38) (1988); Mitchell v. State, 222 Ga. App. 878, 879-880 (3) (476 SE2d 604) (1996).

Judgment affirmed.

Blackburn, P. J, and Barnes, J, concur.

Patrick H. Head, District Attorney, Debra H. Bernes, Maria B. Golick, Assistant District Attorneys, for appellee.

       According to Massingill, this objection differs from the objection that trial counsel should have made, i.e., that the officer was testifying as an expert without being qualified as such, thereby unduly influencing the jury.


author: McMurray, Presiding Judge.

text:
    A99A2288.
    A99A2289.
    NAIMAT et al. v. SHELBYVILLE BOTTLING COMPANY et al. UNIQUE TRANSPORTATION SYSTEMS, INC. v. NAIMAT et al.
    (524 SE2d 749)
   McMurray, Presiding Judge.

Judith Bash was killed in a multi-vehicle collision while operating her own vehicle on Interstate 75 northbound in Catoosa County, Georgia. Her children, plaintiffs-appellants Kimberley L. Naimat, individually and as administratrix of the estate of Judith Bash, David Bash, William Spurling and Phillip Spurling (“the Bash plaintiffs”), brought this tort action to recover for the alleged wrongful death of Ms. Bash. Defendants-appellees are Shelbyville Bottling Company d/b/a Pepsi-Cola Bottling Company of Chattanooga and its driver, Michael Romines; Unique Transportation Systems, Inc., a motor common carrier, and its driver, Charles Láveme Ross, Jr.; Unique’s insurer, United National Insurance Company; and another driver, Caroline Clark. In a special verdict, the jury determined that the death of Judith Bash was not caused by the negligence of the defendants in operating their vehicles. In Case No. A99A2288, the Bash plaintiffs appeal from the denial of their motion for new trial, enumerating the allocation of peremptory challenges, the alleged introduction of testimony on the ultimate issue for the jury, objections to closing argument, and the exclusion of opinion testimony from plaintiffs’ accident reconstruction expert. In Case No. A99A2289, Unique Transportation Systems cross-appeals, enumerating the refusal of the trial court to substitute the federal trustee in bankruptcy for Unique as the real party in interest. Held:

Case No. A99A2288

1. Defendant Caroline Clark counterclaimed against the estate of Judith Bash, cross-claimed against the other defendants, and, jointly with her husband Bruce Clark (“the Clark plaintiffs”), brought a third-party action against Daniel L. Watts. This third-party case was consolidated with the Bash plaintiffs’ case for trial. In order to strike a petit jury of twelve, the trial court ruled that, absent an agreement among the parties, the two sets of plaintiffs would share six peremptory strikes with three strikes for the Bash plaintiffs collectively and three for the Clark plaintiffs, while the three sets of remaining defendants would share six peremptory strikes, with two strikes per defendant. The Bash plaintiffs enumerate this allocation as error, contending the trial court impermissibly granted nine peremptory challenges to their adversaries, while according the Bash plaintiffs only three strikes. Because the trial court did not abuse its discretion in realigning the parties for purposes of determining peremptory challenges, we find no error.

In the superior court, after a panel of 24 competent and impartial jurors is qualified, “the parties or their attorneys may strike alternately, with the plaintiff exercising the first strike, until a jury of 12 persons is impaneled to try the case.” OCGA § 15-12-122 (b). So in the typical civil case, with one plaintiff and one defendant, each side gets six peremptory strikes. But the rule in Georgia for over a century has been that multiple parties receive the same total number of peremptory challenges, in the aggregate, as an individual party. Sheffield v. Lewis, 246 Ga. 19, 20 (I) (268 SE2d 615). Thus, multiple civil defendants who are not entitled to separate trials, such as the alleged tortfeasor-defendants in this case, are not entitled to strike the full number of jurors each, but must join in striking the jury. Pool v. Gramling, Spalding & Co., 88 Ga. 653, hn. 4 (16 SE 52). An exception to this rule exists where one of the parties has a right to sever. “ ‘The right to challenge and the right to sever go hand in hand.’ Nobles v. State, 12 Ga. App. 355, 356 (77 SE 184) (1912).” Sheffield v. Lewis, 246 Ga. at 20 (I), supra. “In a third-party complaint action, the court has the right to try the main action and the third-party action separately.” Mercer v. Braswell, 140 Ga. App. 624, 626 (1) (231 SE2d 431). And, rather than try the cases separately, the trial judge has the discretion under OCGA § 9-11-21 to realign the parties on such terms as are just, before allocating peremptory strikes. Cawthon v. Waco Fire &c. Ins. Co., 259 Ga. 632, 633, n. 1 (386 SE2d 32) and accompanying text. OCGA § 9-11-21 makes no distinction as to parties plaintiff and parties defendant. Paine v. Thomas, 228 Ga. 519, 521 (2) (186 SE2d 737). In the case sub judice, we recognize that, as a mere individual party defendant, Caroline Clark’s adverse interests with her other co-defendants is not a good ground for diminishing the number of peremptory challenges permitted the Bash plaintiffs. Cawthon v. Waco Fire &c. Ins. Co., 259 Ga. at 634, supra; Sheffield v. Lewis, 246 Ga. at 22 (II), supra. Still, she and her husband are also third-party plaintiffs. In our view, the Bash plaintiffs have not shown the trial court abused its broad discretion in realigning the Clark plaintiffs, plaintiffs in the consolidated third-party action, as parties plaintiff for the purpose of allocating peremptory challenges. Consequently, the trial court’s allocation of peremptory challenges in this case was such that the multiple plaintiffs collectively exercised the six peremptory challenges envisioned for an individual party and complies with the longstanding Georgia rule and is affirmed.

2. The second enumeration contends the trial court erroneously allowed a defense witness to “testify concerning the ultimate issue at trial.” In support of this contention, plaintiffs submitted a partial transcript, indicating the following transpired on redirect examination of witness Samples:

[DEFENSE COUNSEL]: Mr. Samples, based on what you saw out there on that day, was there anything Mike Romines could have done to avoid this collision? [SAMPLES]: No, there was nothing in the world. [PLAINTIFFS’ COUNSEL]: Objection, your honor. [DEFENSE COUNSEL]: A witness can testify as to their opinions based on things that they saw, and can reasonably draw from the things that they saw. This man saw as much as anybody, if not more. [PLAINTIFFS’ COUNSEL]: He testified that he glanced to the left, and right, and doesn’t know —. [DEFENSE COUNSEL]: That just goes to his credibility. [PLAINTIFFS’ COUNSEL]: Our objection is stated, I think the testimony should be stricken. [THE COURT]: Overruled.

Nothing more than plaintiffs’ bare “objection” was stated for the record, in that portion of the transcript designated by plaintiffs. Ordinarily, that is an insufficient basis for this specific assignment of error, presenting nothing for review on appeal. Smith v. Smith, 223 Ga. 560, 561 (7) (156 SE2d 901). Accord Jackson v. Meadows, 157 Ga. App. 569, 575 (7) (278 SE2d 8). But even if this objection were properly made and preserved, based upon the responses of defense counsel, the trial court did not err in admitting the testimony of what appears to be (from plaintiffs’ designation of the record) eyewitness testimony to the chaos of a sudden multi-vehicle collision on an interstate highway.

“It is well settled that when the subject matter of an inquiry relates to numerous facts perceived by the senses, to a series of instances passing under the observation of a witness, or to a variety of circumstances and a combination of appearances, which, under the limitations of language, cannot be adequately described and presented to the jury with the same force and clearness as they appeared to the witness, the witness may state his impressions drawn from, and opinions based upon, the facts and circumstances observed by him or the effect which they produced upon his mind. This procedure is sometimes spoken of as a ‘shorthand’ rendering of facts or as testimony of collective facts, and has been applied to the admission of lay opinion evidence as to the location of the impact as respects a motor vehicle collision.” [Cit.]

Dual S. Enterprises v. Webb, 138 Ga. App. 810, 811 (2) (227 SE2d 418). “If the circumstances are such as to render the inference superfluous, it is excluded; if not [but is of some assistance to the jury], it is admitted.” Pride v. State, 133 Ga. 438, 440 (1) (66 SE 259). In this instance, the impression or opinion of eyewitness Samples, that, under the totality of the circumstances as Samples perceived them, there was “nothing in the world” defendant driver Romines could have done to avoid impact, was not superfluous, and the trial court did not err in admitting this testimony over plaintiffs' tacit objection that this amounted to an impermissible opinion as to the ultimate issue for the jury. McMichen v. Moattar, 221 Ga. App. 230, 232 (2) (470 SE2d 800).

3. The trial court had partially granted third-party defendant Daniel L. Watts' motion in limine, prohibiting “opinion testimony from any police officer or any expert witness that the actions of any party . . . constituted negligence.” For purposes of this appeal, we assume that ruling was a blanket prohibition to all parties. In their third enumeration, the Bash plaintiffs contend the trial court erred in permitting defense counsel, during closing argument, to discuss that the absence of testimony concerning the ultimate issue in the case supports the defendants’ position, even when such evidence was inadmissible. The limited transcript indicates the following transpired, with error assigned to the emphasized portion:

[DEFENSE COUNSEL]: I want to spend just a second on one thing, and I am not going to rely on you to look at any diagram, or point to any board, or use any cars. I think you have seen this in every conceivable configuration. I want to focus on this though, that not one person, expert, nonexpert, police officer, has said that Mike Romines did anything wrong out there that day. Not the police, not Hill, not one, and in fact, the only witness that commented on it was Mr. Samples, who said there was absolutely nothing Mike could have done to avoid this unfortunate circumstance.

The limited transcript shows that plaintiffs objected to this argument as contravening the prior ruling, allegedly because the court instructed the attorneys “not to ask the experts for their opinions as to whether anybody did anything wrong. . . .” But this argument misstates the extent of the court’s ruling. The granted motion in limine certainly does not prohibit evidence of the factual bases for any alleged negligence. Rather, this ruling prohibits expert or opinion testimony only on the legal conclusion that, based on certain facts, defendants were (or were not) negligent.

Counsel should have ample latitude to argue what has transpired in a case from its inception to its conclusion, and the conduct of the party or his counsel with respect to the case is the subject of legitimate comment, and the range of such comment is necessarily in the discretion of the trial judge; and unless it can be shown that such discretion has been abused and some positive injury done by the remarks of counsel, the discretion of the trial judge will not be controlled. [Cits.]

Adkins v. Flagg, 147 Ga. 136, 137 (2) (a) (93 SE 92). Thus, if no one testified in this case that defendant Romines should have done something more, something else, i.e., used his horn, braked faster, or changed lanes, to avoid the collision, then that absence of factual testimony is a legitimate matter for defense counsel to stress during closing argument.

4. Next, plaintiffs contend the trial court erred in permitting a violation of the “Golden Rule” based on the following closing argument:

[DEFENSE COUNSEL]: I- suggest to you . . . that what happened out there that day could happen — by the grace of God did not happen to any of us, but could happen to any of us at any time, and any one of us could be in the spot that [defendant drivers] Mike and Ron are being blamed for, something that was totally beyond their control. (Additional argument.) (Jury excused for noon recess.)
The so-called “Golden Rule” argument urges the jurors to place themselves in the position of [the] plaintiff or to allow such recovery as they would wish if in the same position. Opatut v. Guest Pond Club, 188 Ga. App. 478, 481 (5) (373 SE2d 372) (1988) (citing Earl v. Edwards, 117 Ga. App. 559, 560 (3) (161 SE2d 438) (1968)). It is improper because it asks the jurors to consider the case, not objectively as fair and impartial jurors, but rather from the biased, subjective standpoint of a litigant. 75A AmJur2d, Trial, § 650 (1991).

Myrick v. Stephanos, 220 Ga. App. 520, 523 (4) (472 SE2d 431). In this negligence action, the jury must determine whether any defendant breached a duty of care to exercise that degree of caution and foresight as is exercised by ordinarily prudent persons under the same or similar circumstances. OCGA § 51-1-2. “Remarks not directed at damages are not impermissible [under the Golden Rule].” 75A AmJur2d, Trial, § 650, p. 261 (1991). Thus, a defense argument that

jurors all drove, that they all realized the possibility of hitting a car which unexpectedly stopped in front of them, and that everyone had had a close call due to an unexpected stop by another car [is] not an impermissible “Golden Rule” argument since it [is] not directed to damages.

75A AmJur2d, Trial, § 650, p. 261, fn. 29, citing Shaffer v. Ward, 510 S2d 602 (Fla. App.). In our view, the defense argument in this case similarly is not directed to any award of damages based on sympathy for the subjective view of one of the litigants. Rather, it lawfully directs the jury’s attention to the question for decision under the proper objective standard established by OCGA § 51-1-2. The trial court correctly found no violation of the Golden Rule.

5. Plaintiffs’ expert, Herbert H. Hill, was qualified as an expert in accident reconstruction, based on his scholastic training from an accredited university and his 30 years experience. Over defense objection that it exceeded his qualifications, Dr. Hill was permitted to give his opinion as to which vehicular impact was more likely to have caused the death of plaintiffs’ decedent. But the trial court revisited this question and sustained the objection to Dr. Hill’s testimony that the impact of the Pepsi truck was more likely the cause of the fatal impact rather than the impact with the Clark vehicle. The trial court struck this testimony from the record and very clearly instructed the jury that they were not to consider Dr. Hill’s response as evidence and to put it completely out of their minds. This evidentiary ruling is plaintiffs’ fifth enumeration of error. Under the controlling authority of Johnson v. Knebel, 267 Ga. 853, 857 (3) (485 SE2d 451), however, we conclude the trial court correctly disallowed Dr. Hill’s opinion that one impact versus another proved to be the fatal one, because such a conclusion was beyond his area of expertise as an accident reconstructionist.

Case No. A99A2289

6. Our affirmance in the main appeal, Case No. A99A2288, renders moot the sole issue raised in this cross-appeal. Consequently, Case No. A99A2289 is dismissed as moot, under OCGA § 5-6-48 (b) (3). Kubler v. Goerg, 197 Ga. App. 667, 671 (5) (399 SE2d 229).

Judgment affirmed in Case No. A99A2288. Appeal dismissed in Case No. A99A2289.

Johnson, C. J., and Phipps, J., concur.

Decided November 4, 1999.

Starr & Daniel, Kenneth R. Starr, Strang, Fletcher, Carriger, Walker & Hodge, James R. Rogers, for Naimat et al.

Carr, Tabb & Pope, W Pitts Carr, Render C. Freeman, for Shelby-ville Bottling Company et al.

Henry, Kinney, Kemp, Sponcler, Joiner & Tharpe, Henry C. Tharpe, Jr., Robert A. Cowan, for Unique Transportation Systems, Inc. et al.

Luther-Anderson, Alaric A. Henry, for Clark et al.

Davis & Kreitzer, John W. Davis, Jr., for Watts.


text:
    A99A2502.
    PAUL v. THE STATE.
    (524 SE2d 549)
   McMurray, Presiding Judge.

A Richmond County jury convicted Larry Marion Paul of aggravated assault with a deadly weapon (OCGA § 16-5-21) and possession of a knife during the commission of certain crimes (OCGA § 16-11-106). Defendant appeals, contending that the trial court erred in: (a) denying him his right to a thorough and sifting cross-examination of the victim concerning the victim’s willingness to dismiss his civil action for damages against defendant arising upon the facts of the case sub judice, and (b) in expressing its opinion of the accused’s guilt, violating OCGA §§ 24-9-64 and 17-8-57, respectively. Defendant further contends his trial counsel was ineffective. Held:

The evidence of record shows that late one evening the victim went to an Augusta bar with friends to drink and play pool. There he met the defendant, a Marine veteran of the Vietnam war. The two argued during the course of the evening, at first over defendant’s insistence that the two play pool for money and later over defendant’s belief that the victim was staring at him and making “smart remarks” about him and others. The victim and the defendant left the bar near closing time, and a fight erupted between them in the parking lot. During the fracas, the defendant severely wounded the victim three times with a knife. At trial, the defendant asserted the defenses of self-defense and insanity because of post-traumatic stress disorder resulting from his combat service in Vietnam.

1. The trial court did not err in sustaining the State attorney’s objection to cross-examining the victim as to whether he would dismiss his $300,000 civil action for damages against defendant based on the facts of this case. OCGA § 24-9-64. Citing Boggs v. State, 195 Ga. App. 605, 606 (394 SE2d 401), defendant argues that the trial court was required to allow him to pursue the dismissal issue in cross-examining the victim because of other testimony elicited from the victim on cross-examination indicating that he had not filed the civil action seeking defendant’s money.

While a defendant is entitled to a thorough and sifting cross-examination of the witnesses against him, the scope of cross-examination is within the sound discretion of the trial court and, in the absence of abuse thereof, will not be disturbed by this Court. Hamilton v. State, 238 Ga. App. 320, 321 (2) (517 SE2d 118); Smith v. State, 171 Ga. App. 758, 761 (6) (321 SE2d 213). Moreover, our holding in Boggs v. State, 195 Ga. App. at 606, supra, was not directed to cross-examination upon the fact of a civil action for damages which was in evidence, as here. Rather, it went to a trial court’s refusal to permit cross-examination of a State’s witness as to whether such a suit had been filed. In Boggs, we pertinently held:

In criminal cases, it is reversible error where there is conflicting evidence to refuse to permit the State’s witness on cross-examination to testify that he has a damage suit pending based on the same facts involved in the criminal case. Chancellor v. State, 165 Ga. App. 365, 372 (301 SE2d 294) (1983).

Id. See also Spitzberg v. State, 233 Ga. App. 848, 849 (1) (506 SE2d 143). That the trial court allowed the pendency of the victim’s civil action for damages against defendant in evidence is undisputed in the instant circumstances. Consequently, the question of whether the victim would dismiss it for any or no reason in the future was irrelevant to the relationship between the victim and witness at trial. “Defendant was entitled to a thorough and sifting cross-examination. OCGA § 24-9-64. He was entitled to show the state of the witness’ feelings towards him and the witness’ relationship to him. [Cits.]” Boggs v. State, 195 Ga. App. at 606, supra. This the trial court adequately allowed. Hamilton v. State, 238 Ga. App. at 321 (2), supra. Accordingly, this enumeration of error is without merit.

2. At the motion for new trial hearing, defendant supported his claim that the trial court erred in expressing its opinion as to what had been proved, arguing that the trial court improperly ordered the victim-witness to show his scars to the jury. Further, defendant argued that the trial court erred in asking certain questions of defendant’s witnesses in the presence of the jury. Trial counsel failed to object to any comment of the trial court challenged on appeal. Neither did trial counsel move for a mistrial thereon. There thus being nothing for review on appeal, waiver results. Davitt v. State, 232 Ga. App. 427, 428 (2) (502 SE2d 300) (“ ‘The question of whether OCGA § 17-8-57 has been violated is not reached unless an objection or motion for mistrial is made.’ ”).

3. In his final enumeration of error, defendant asserts he was denied effective assistance of counsel. As to the grounds alleged, however, defendant has not established that his counsel’s performance was deficient. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674); Quinn v. State, 221 Ga. App. 399, 401 (3) (471 SE2d 337); Ponder v. State, 201 Ga. App. 388, 389 (1) (411 SE2d 119). (We need not address both prongs of the two-prong Strickland test if the showing on one prong is insufficient.)

Failing to interview and present res gestae and character witnesses was not deficient since the evidence at the hearing on motion for new trial was that trial counsel sought to limit defendant’s exposure to potential evidence that the knife used in the assault was retrieved from a trash can at defendant’s apartment and to foreclose rebuttal as to defendant’s criminal history. Further, trial counsel testified that the State called a character witness he otherwise would have called.

Failing to object to alleged intimations of defendant’s guilt by the trial court was not deficient since the evidence showed that trial counsel retrained from doing so not wishing to prejudice his client by appearing unduly confrontational in the face of the trial court’s broad authority to propound questions of any witness in furtherance of the truth. Mullins v. State, 269 Ga. 157, 159 (3) (496 SE2d 252). Assuming arguendo that the failure of trial counsel to object or move for mistrial was deficient, we nonetheless conclude that defendant has not shown harm resulting therefrom. In this regard, we limit our review to defendant’s claims of error in the trial court for intimation in violation of OCGA § 17-8-57 to those he raised on motion for new trial. Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659). Thus narrowing the scope of our review, defendant complains that the trial court ordered the victim-witness to show his scars to the jury. He further complains that the trial judge asked defendant’s first witness if she were a “pool hustler,” and later asked a psychologist, one of defendant’s expert medical witnesses, a series of questions to determine if defendant had a history of attempted suicide by means likely to result in death. We conclude that the trial court did not abuse its discretion in ordering the victim-witness to show his scars to the jury as these were relevant to the charges against the defendant, aggravated assault with a deadly weapon and possession of a knife during the commission of certain crimes. Brown v. State, 188 Ga. App. 282, 283 (372 SE2d 838). We conclude, as trial counsel did, that the trial court’s question regarding his witness as a pool hustler was a comment made in jest, implying that the comment was not directed at the witness. Finally, we conclude that the questions the trial court propounded to defendant’s medical expert sought clarification of the expert’s testimony regarding the seriousness of defendant’s attempts at suicide as these might differ from perceptions he held thereof. See Denny v. State, 226 Ga. App. 432, 435 (10) (486 SE2d 417) (straightforward inquiry as to nature of defendant’s defense not an expression or intimation of trial court’s opinion under OCGA § 17-8-57). Moreover, defendant has adduced no evidence indicating that the jury did not follow the trial court’s charge not to regard any of its rulings as a comment upon the quality of the proof or of the defendant’s guilt.

Decided November 4, 1999

Mark J. Kadish, for appellant.

Failing to proffer the victim’s civil action for damages against defendant on the facts underlying the criminal prosecution against defendant was not deficient since trial counsel adequately established the pendency of such action in cross-examining the victim. Failing to request that the jury be excused when trial counsel argued the inadmissibility of defendant’s Bowie knife was not deficient in that the trial court agreed and excluded the weapon from evidence. Finally, failing to ask hypothetical questions of his medical experts at trial in obtaining their opinion that defendant could not distinguish right from wrong at the time of the offense because he suffered from post-traumatic stress disorder was not deficient. The evidence shows that trial counsel’s experts offered this opinion evidence at trial on the basis of documentary discovery trial counsel received from the State’s attorney, other records, and individual interviews with the defendant. “Because the trial court’s finding that [the defendant] was not denied effective assistance of counsel is not clearly erroneous, we must affirm it. [Cit.]” Brumelow v. State, 239 Ga. App. 119, 123 (5) (520 SE2d 776).

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

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

       The crimes occurred January 25, 1997. Defendant was indicted April 1, 1997. Trial commenced on February 3, 1999, and the jury returned guilty but mentally ill verdicts on both counts on February 4,1999. The trial court sentenced defendant to eight years to serve for aggravated assault with a deadly weapon and five years to serve on the possession of a knife during the commission of a crime charge, to run consecutively. Defendant filed a motion for new trial on March 12, 1999. The trial court denied the motion on June 16, 1999. Defendant filed his notice of appeal on June 29, 1999, which was docketed in this Court on August 11, 1999, and submitted for decision upon oral argument on September 10, 1999.

       The victim suffered a six-inch cut to his abdomen exposing his small intestines, a cut from the left shoulder blade to the middle of the victim’s chest and a cut to the top, back part of his head.


text:
    A99A0889.
    WILLIAM J. COONEY, P.C. v. ROWLAND.
    (524 SE2d 730)
   Johnson, Chief Judge.

The law firm of William J. Cooney, RC. filed an action to foreclose an attorney’s lien on settlement checks issued to Cooney’s client, Willis Rowland. The trial court entered judgment in favor of Cooney for only about one-third of the amount requested, based on its finding that the attorney-client fee agreement sought to be enforced by Cooney was unconscionable. Cooney appeals, arguing that the agreement was not unconscionable and should have been enforced according to its terms. We agree.

Rowland served as vice-president of a building products company. In 1987, the Internal Revenue Service made a tax assessment against the company for $162,289.71 based on the company’s alleged failure to pay employment taxes in 1984 through 1986. The IRS sought to collect the taxes from Rowland. Rowland paid some of the taxes but, believing the assessment was improper, sought legal assistance to challenge it.

Rowland employed Cooney to represent him and, in so doing, executed a fee agreement which provided the following: Cooney would bill Rowland monthly on a time-expended basis; if Rowland disputed the calculation or amount of the fee, the matter would be submitted to the State Bar of Georgia for resolution; the hourly rates for the attorneys’ services ranged from $75 to $165; the bills would be due and payable upon presentation; interest would accrue on any outstanding balances at the rate of one and one-half percent per month beginning thirty days after the date the bill was presented and continuing until paid; Rowland would be responsible for collection costs and prejudgment interest if Cooney had to sue to collect its fee; and any money Cooney received for Rowland’s benefit would be reduced by any fees and costs he owed to Cooney.

As provided in the agreement, Cooney sent monthly bills to Rowland totaling $63,268.49 over the ten-year period in which the case continued. Of that amount, $39,398.49 was attorney fees, $23,580 was interest, and $290 was advanced costs. Rowland’s payments on the account totaled $23,235. Cooney applied the payments first to the interest due, then to the principal.

The tax case was settled in 1998. The IRS issued to Rowland two refund checks totaling $61,646.81. Cooney filed the underlying lien foreclosure action against the refund checks, claiming Rowland still owed him $43,496.44 in fees ($37,394.83 principal, $2,488.32 prejudgment interest, future prejudgment interest, attorney fees of $4,013.29, and court costs). The trial court disallowed the interest charges which had accrued over the years and awarded Cooney only $13,045.15 in attorney fees and $85 in advanced costs. This was plain error.

In addition to being authorized by the fee agreement to charge interest at the rate charged, Cooney was authorized by statute to charge interest in the manner in which it was charged. The owner of a commercial account may charge interest on the balance due on the account when the account has been due and payable thirty days or more and may charge as much as one and one-half percent interest per month on the balance until the account is paid; an account is “commercial” if it involves an obligation to pay money arising out of a transaction to furnish services. OCGA § 7-4-16. Furthermore, when a payment is made upon any debt, the creditor shall apply the payment first to discharge the interest due, then to reduce the principal. OCGA § 7-4-17. Cooney was therefore authorized by statute to charge interest at the rate charged and to apply Rowland’s payments first to the interest due and then to the principal. At all times, Rowland could have avoided any obligation to pay interest by paying the principal in full each month as he agreed to do.

Contrary to the trial court’s finding, the contract was not unconscionable. “An unconscionable contract is one abhorrent to good morals and conscience. It is one where one of the parties takes a fraudulent advantage of another.” (Citation, punctuation and emphasis omitted.) F. N. Roberts Pest Control Co. v. McDonald, 132 Ga. App. 257, 260 (3) (208 SE2d 13) (1974). It is an agreement that no sane person not acting under a delusion would make and that no honest person would take advantage of. See id.; Hall v. Fruehauf Corp., 179 Ga. App. 362 (346 SE2d 582) (1986) (physical precedent only).

The fee agreement here simply does not fall within these definitions. The agreement is neither abhorrent nor one that a sane person would not enter into. There is no evidence or claim that Cooney took advantage of Rowland, fraudulent or otherwise. The agreement does not violate public policy or any statute. See Hall, supra. Indeed, the law specifically allows the owner of a commercial account to charge one and one-half percent interest per month on the balance and to apply payments to interest first. That which the law itself specifically permits cannot be unconscionable. Zepp v. Mayor &c. of Athens, 180 Ga. App. 72, 78 (2) (348 SE2d 673) (1986).

Moreover, unconscionabiiity is determined based on the circumstances existing at the time the contract was made, rather than those existing years later, when one party seeks to enforce the terms of the agreement. See BMW Financial Svcs. v. Smoke Rise Corp., 226 Ga. App. 469 (486 SE2d 629) (1997). Thus, the fact that a large amount of interest accrued over the ten-year period does not make the contract unconscionable.

Georgia law recognizes and protects the freedom of parties to contract. NEC Technologies v. Nelson, 267 Ga. 390, 396 (4) (478 SE2d 769) (1996). In general, parties should be entitled to contract on their own terms without the courts saving one side or another from the effects of a bad bargain; they should be permitted to enter into contracts that may actually be unreasonable or which may lead to hardship. Id. In this case, the trial court should have enforced the agreement as written and as permitted by statute. See BMW Financial Svcs., supra at 470.

Rowland asserts that he does not dispute Cooney’s interpretation of the law concerning unconscionability and freedom to contract, which interpretation is similar to ours as expressed in this opinion. Instead, Rowland argues that the attorney-client relationship is governed not by the written fee agreement or by the law as set forth in Georgia’s statutes and appellate court decisions, but primarily by the rules of professional conduct promulgated by the State Bar of Georgia. Specifically, Rowland points to the Rules & Regulations of the State Bar of Georgia, Standard 31 (a), which provides that a lawyer shall not enter into an agreement for, charge or collect an illegal or clearly excessive fee. He complains that the fee is excessive because the firm’s recovery would be larger than his, which, he says, would be an outrageous reshit. His argument is completely without merit.

The fact that this case involves an attorney-client relationship does not mean that the rules of professional conduct preempt statutory law and case law regarding contracts. It is true that Cooney was bound to abide by standards of professional conduct. See McMann v. Mockler, 233 Ga. App. 279, 282 (3) (503 SE2d 894) (1998). However, it is also true that cases involving attorney-client relationships are very often decided based solely upon the terms of the contract, applicable statutes and appellate court decisions, without reference to the rules or standards of the State Bar of Georgia. See, e.g., Greer, Klosik & Daugherty v. Yetman, 269 Ga. 271, 274 (1), (2) (496 SE2d 693) (1998); Lipton v. Warner, Mayoue & Bates, 228 Ga. App. 516, 518 (2) (492 SE2d 281) (1997); Plumlee v. Davis, 221 Ga. App. 848, 851-853 (2), (3) (473 SE2d 510) (1996). In fact, statutory and case law have significance even in attorney-client relationships.

Furthermore, there has been no showing that Cooney violated Standard 31 (a) by charging an excessive fee. The hourly fees charged by Cooney are reasonable on their face. Rowland’s argument that Cooney’s fee would be disproportionately large considering the settlement amount takes into account only the results obtained. It ignores other relevant factors, such as the fact that this was not a contingent fee agreement, that the subject matter and procedures involved were complicated, and that the case lasted ten years.

Decided October 19, 1999

Reconsideration denied November 5, 1999

William J. Cooney, for appellant.

Spivey, Carlton & Edenfield, J. Franklin Edenfield, for appellee.

We note that Rowland’s claim that the fee was clearly excessive is belied by the fact that the written agreement specifically gave him the right to dispute the calculation or amount of attorney fees and have the fee dispute submitted to arbitration; he apparently never disputed the bills, despite having received them every month for ten years.

The fee agreement in this case was not unconscionable when entered into, and it is not unenforceable today. The trial court erred in not permitting the charging of interest as provided in the contract and in not permitting Cooney to apply the payments as directed by statute. The case must therefore be reversed. The trial court is directed to vacate the judgment and recalculate the amount of the judgment consistently with this opinion.

Judgment reversed and case remanded with direction.

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

       Standard 31 (a) lists factors to be considered as guides in determining the reasonableness of an attorney fee. Factors include: the time and labor required, the difficulty of the questions involved, the fee customarily charged in the locality for similar services, the amount of money involved and results obtained, the length of relationship with the client, the lawyer’s experience, and whether the fee is fixed or contingent.


text:
    A99A1059.
    O’HANNON v. THE STATE.
    (524 SE2d 759)
   Phipps, Judge.

Nathan O’Hannon was convicted of burglary, possession of a firearm during the commission of a felony, and possession of tools for the commission of a crime. On appeal, he claims that the trial court committed two harmful errors, first in violation of Batson v. Kentucky and second in violation of the Georgia Constitution, when it allowed the State to peremptorily strike two African-Americans from the venire. Because we find against O’Hannon on each issue, we affirm.

1. We analyze O’Hannon’s argument under the framework of Batson:

[Office the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination. [Cits.]

The initial inquiry of whether O’Hannon established a prima facie case of discrimination is moot because the State offered purportedly race-neutral explanations for the peremptory challenges, and the trial court ruled O’Hannon did not prove the strikes were exercised with an intent to discriminate. We need address only the sufficiency of the State’s explanations.

O’Hannon’s Batson motion related to venire members Matthew Carter and Felicia Johnson. The prosecutor asserted that Carter was struck because he said during voir dire that his brother and others had been arrested for theft and his brother was later acquitted. She stated that for this reason she believed Carter might sympathize with O’Hannon’s likely defense that he was merely present with his co-defendants when the crimes were committed but that he did not participate.

With respect to Johnson, the prosecutor explained,

She testified [during voir dire] that she had extensive courses in psychology and psychiatry and worked at Howard University Hospital and that some of her work as a physician assistant deals with issues of psychology and the State would believe that she may have a tendency to try to interpret or psychoanalyze the defendant as to this case.

To qualify as race-neutral, an explanation “need not be persuasive, plausible or even make sense.” It “must simply be ‘based on something other than the race of the juror. Unless a discriminatory intent is inherent in the proponent’s explanation, the reason offered will be deemed race neutral.’ ” Applying these standards, we find that the State offered race-neutral explanations for its strikes of Carter and Johnson.

O’Hannon correctly asserts that Carter did not say during voir dire that his brother had been arrested and acquitted on a theft charge. Instead, Carter said his brother had been arrested but not prosecuted. Also, O’Hannon states that by not inquiring further into the circumstances of Carter’s brother’s case, the State failed to make a record sufficient to reasonably justify striking Carter. Nevertheless, Carter’s brother’s arrest alone was sufficient to provide a race-neutral reason for striking Carter.

As to Johnson, O’Hannon claims that her education and work experience in psychology and psychiatry were irrelevant to the issues of the case. Further, he questions the rationale of an inference that she would “psychoanalyze” the defendant when she worked as a primary care physician’s assistant and not as a counselor. While the reasoning behind the strike of Johnson may have been open to debate, it was not grounded in a characteristic or stereotype associated with race. A party may strike from idiosyncrasy.

Discrimination may be found despite race-neutral explanations if the explanations are not believed but instead are found to be pretexts for discrimination. The trial judge plays an important role here because:

[t]here will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within a trial judge’s province.”

“ ‘The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.’ ” Here, the trial court found the prosecutor’s reasons for striking the prospective jurors credible. There is no basis in the record for us to find the trial court’s determination to be clearly erroneous. Therefore, we find the trial court did not err in denying O’Hannon’s Batson challenges.

Decided November 5, 1999.

Shandor S. Badaruddin, for appellant.

Patrick H. Head, District Attorney, Thomas A. Cole, Debra H. Bernes, Assistant District Attorneys, for appellee.

2. Also O’Hannon claims that the State’s peremptory strikes of Carter and Johnson violated Art. I, Sec. I, Par. XI (a), Ga. Const., which declares, “In criminal cases, the defendant shall have a public and speedy trial by an impartial jury.” Because O’Hannon did not present that argument in the trial court and it was not ruled upon in the trial court, that ground for challenging the strikes was waived.

Judgment affirmed.

Smith and Eldridge, JJ, concur.

       476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       Id.

        Purkett v. Elem, 514 U. S. 765, 767 (115 SC 1769, 131 LE2d 834) (1995).

       See Williams v. State, 236 Ga. App. 190 (1) (511 SE2d 561) (1999).

       Id.

        Smith v. State, 236 Ga. App. 122, 124 (2) (511 SE2d 223) (1999).

       (Citation omitted.) Id.

       See Williams, supra at 191 (citing Davis v. State, 263 Ga. 5 (426 SE2d 844) (1993)); Henry v. State, 265 Ga. 732, 734 (2) (462 SE2d 737) (1995).

       See Durham v. State, 185 Ga. App. 163, 166 (3) (363 SE2d 607) (1987) (psychological training accepted as race-neutral basis for peremptory strike); compare Congdon v. State, 262 Ga. 683, 685 (424 SE2d 630) (1993) (peremptory strike overturned where prosecutor struck all African-Americans who lived in a particular area, because he presumed all African-American residents of the area likely harbored animus toward the sheriff).

        McGlohon v. State, 228 Ga. App. 726, 727 (1) (492 SE2d 715) (1997).

       See Purkett, supra.

        Smith v. State, 264 Ga. 449, 454 (4) (448 SE2d 179) (1994).

       (Citation omitted.) Williams, supra at 190.

       Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a).

       See Rushing v. State, 271 Ga. 102, 105 (2) (515 SE2d 607) (1999).


text:
    A99A1144.
    EGGLESTON v. JOHNSON.
    (524 SE2d 761)
   Miller, Judge.

After agreeing with Dr. William Morton to locate property for Dr. Morton to purchase, Jimmy Johnson, a real estate agent, contacted Raymond Eggleston, also a real estate agent, for assistance. Eggleston showed Johnson and Dr. Morton property located on Lathemtown Road and prepared an offer on Dr. Morton’s behalf providing for an even split of commission between Eggleston and Johnson. A counteroffer from the seller halted further negotiations.

Two days later, Eggleston, without informing Johnson, prepared and presented an offer on Dr. Morton’s behalf for property located on Gaddis Road. That offer provided for no commission to Johnson. When the Gaddis Road property closed a few months later, Eggleston received a commission of $24,860.

Johnson sued Eggleston, claiming Eggleston had from the onset agreed to share evenly any commission with Johnson. Following a bench trial, the court agreed and awarded Johnson $12,430. Based on evidence of an oral agreement to share the commission, we affirm.

1. Eggleston contends that no evidence supported an award to Johnson. But Johnson testified that he and Eggleston had orally agreed to split any commission arising from a sale to Dr. Morton. Although Eggleston denied that the agreement extended to the Gad-dis Road property, the terms of an oral contract are an issue for the trier of fact to resolve. Where there is any evidence to sustain the trial court’s findings, an appellate court will not disturb them. We construe the evidence to uphold the judgment when resolving discrepancies.

Decided November 5, 1999.

McGarity & Moyer, J. Michael McGarity, Howard W. Reese III, for appellant.

William E. Whitaker, for appellee.

In addition to Johnson’s testimony regarding the oral agreement, Johnson also presented evidence that the splitting of commission by real estate agents was a common practice in the area, that Johnson and Eggleston had evenly shared commissions on other real estate transactions, and that less than one week earlier Eggleston had prepared an offer on Dr. Morton’s behalf which expressly provided for Johnson to receive half the commission on the Lathemtown property.

Because there is evidence supporting the trial court’s finding, this court will not set it aside. We affirm the trial court’s award to Johnson.

2. Eggleston contends that the trial court erred in determining that Johnson was a procuring cause of the sale and therefore entitled to a share of the commission. Because the trial court based its award on its finding of an oral agreement between Johnson and Eggleston, this enumeration of error is moot.

3. Eggleston also appeals the denial of his motion for summary judgment. “An appellate court, however, will not review the denial of a motion for summary judgment following a trial on the merits.”

Judgment affirmed.

Smith and Eldridge, JJ., concur.

       See Beall v. F. H. H. Constr., 193 Ga. App. 544, 545 (1) (388 SE2d 342) (1989); see also Spoon v. Herndon, 167 Ga. App. 794, 795 (1) (307 SE2d 693) (1983).

        Venture Design v. Original Appalachian Artworks, 197 Ga. App. 432, 434 (1) (398 SE2d 781) (1990).

        Jeff Goolsby Homes Corp. v. Smith, 168 Ga. App. 218, 219-220 (1) (308 SE2d 564) (1983).

       See Venture Design, supra, 197 Ga. App. at 434 (1).

       See OTI Shelf v. Schair & Assoc., 238 Ga. App. 12, 14 (517 SE2d 542) (1999) (because agent’s entitlement to commission was not predicated on his procurement of a buyer, court declined to apply OCGA § 10-6-32’s principle, i.e., broker’s commission is earned where broker is a procuring cause).

        Acuff v. Proctor, 267 Ga. 85, 86 (5) (475 SE2d 616) (1996).


author: Barnes, Judge.

text:
    A99A0930.
    A99A0931.
    DESTER v. DESTER et al. LOUIS JENKINS CONSTRUCTION, INC. v. DESTER.
    (523 SE2d 635)
   Barnes, Judge.

Linda Dester appeals the grant of summary judgment to her husband, Danny Dester, on the ground of interspousal tort immunity. Louis Jenkins Construction, Inc. (“Jenkins Construction”) cross-appeals the denial of its summary judgment motion on Linda Dester’s claims of respondeat superior, negligent entrustment, and negligent hiring and retention of her husband. We affirm the grant of summary judgment to Danny Dester and reverse the denial of summary judgment to Jenkins Construction.

This suit resulted from an automobile collision that occurred on a Saturday while Danny Dester was driving a truck owned by his employer, Jenkins Construction. Dester worked until noon and then drove a co-worker home, sharing a six-pack of beer with him. Dester then spent a few hours doing yard work at his house. He and his family, which included his wife, Linda Dester, their daughter, and Bobbi Johnson, Mrs. Dester’s daughter from another marriage, went out to dinner that evening, and the Desters each had two margaritas with their meal. As Mr. Dester was driving his family home, he passed two slower moving vehicles. He was almost clear of the second car when it turned left and clipped the rear of his truck. The vehicle spun out of control and flipped, ejecting Mrs. Dester and the two children. Bobbi Johnson died, the Desters’ daughter suffered a broken arm, and Mrs. Dester was seriously injured. Mr. Dester’s blood alcohol level was .19 after the wreck.

Mrs. Dester sued her husband and the driver of the car that turned into the truck for personal injuries and sued Jenkins Construction as her husband’s employer and the truck’s owner. The trial court granted summary judgment to Mr. Dester and denied summary judgment to Jenkins Construction.

Under OCGA § 9-11-56 (c), summary judgment should be granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant or denial of summary judgment de novo, viewing the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996).

Case No. A99A0930

Mrs. Dester raises four arguments challenging the interspousal tort immunity doctrine. She claims that the doctrine is unconstitutional; that a Supreme Court of Georgia case finding the wrongful death statute unconstitutional applies here; that since spouses can sue for property damage, they should be able to sue for personal injury; and that since a child can sue a parent for wilful and wanton misconduct, spouses should be able to do so too.

1. Mrs. Dester first argues that prohibiting interspousal tort suits against spouses who have been wilfully and wantonly negligent violates the Equal Protection Clauses of the U. S. and Georgia Constitutions. However, this contention is controlled adversely by Supreme Court of Georgia cases affirming the constitutional validity of the interspousal tort immunity. See Harris v. Harris, 252 Ga. 387 (1) (313 SE2d 88) (1984); Robeson v. Intl. Indem. Co., 248 Ga. 306, 307 (1) (282 SE2d 896) (1981).

In Robeson, the Supreme Court of Georgia found no equal protection violation in the alleged discrimination resulting from the doctrine of interspousal immunity. 248 Ga. at 307. The Court reviewed with approval other jurisdictions’ holdings that found “a reasonable relationship to the promotion of domestic tranquility interest sought to be furthered by it,” and noted “the doctrine applies to husbands as well as wives.” (Citations and punctuation omitted.) Id. at 307-308. We are bound by the decisions of the Supreme Court. 1983 Ga. Const., Art. VI, Sec. VI, Par. VI; Hewitt v. Walker, 234 Ga. App. 78 (506 SE2d 215) (1998).

2. We also do not find persuasive Mrs. Dester’s second challenge to the doctrine, in which she contends that the Supreme Court of Georgia’s holding in Jones v. Jones, 259 Ga. 49 (376 SE2d 674) (1989), applies to this case. The Jones court held that the application of the interspousal immunity doctrine to wrongful death actions violated the constitutional guarantee of equal protection because it created two classes of wrongful death claimants that were not rationally related to a legitimate state purpose: (1) those whose spouse, child, or parent died due to the negligence of a spouse and who cannot maintain an action for wrongful death; and (2) those whose spouse, child, or parent died due to the negligence of someone other than a spouse and who can maintain an action for wrongful death. Id. at 49-50. The Court noted that the policy considerations supporting the inter-spousal immunity doctrine — fostering marital harmony and avoiding collusive lawsuits — are absent in a wrongful death action because one spouse has died. Id. In this case, unlike Jones, Mrs. Dester did not die as a result of her injuries, and she is still married to the man she has sued. As a result, the Supreme Court’s decision in Jones does not authorize her to sue her husband.

3. Mrs. Dester argues that, since a wife can sue her husband for property damage under Hubbard v. Ruff, 97 Ga. App. 251, 255 (1) (103 SE2d 134) (1958), she should be able to sue her husband for personal injury. However, the Hubbard court did not analyze the doctrine of interspousal tort immunity but held that a wife had a right to sue her husband for property damage just as a husband had a right to sue his wife for property damage. The court concluded that “this right is necessary in order that a wife may have equal protection of the law respecting her separate estate.” Id. This Court’s analysis concluding that both spouses may sue each other for property damage does not apply in this suit by a wife against a husband for personal injuries.

4. Finally, Mrs. Dester contends that Wright v. Wright, 85 Ga. App. 721 (70 SE2d 152) (1952) allows a child to sue a parent for wilful and wanton misconduct and, therefore, equal protection demands that she be able to bring a similar suit against her spouse. This argument, however, misconstrues Wright, which held that a jury question existed as to whether a parent’s wilful and wanton misconduct of driving under the influence triggered a child’s emancipation under OCGA § 19-7-1 (b) (6). If emancipated, the child could sue because the parent’s control was terminated. Wright addresses none of the considerations underlying the doctrine of interspousal immunity and is inapplicable to this case.

For these reasons, we conclude the trial court did not err in granting summary judgment to Mr. Dester.

Case No. A99A0931

Jenkins Construction cross-appeals the trial court’s denial of its motion for summary judgment on Linda Dester’s claims against it based on respondeat superior, negligent entrustment, and negligent hiring and retention.

5. Jenkins Construction argues that no evidence shows Danny Dester was acting within the course and scope of his employment when he wrecked the company truck and, thus, the company is not liable for Mr. Dester’s actions under a respondeat superior claim.

A presumption arises that an employee is acting within the scope of his employment when he is driving his employer’s car, but the employer can rebut that presumption in a suit against it for damages under respondeat superior. If the employer does rebut that presumption, then the opposing party must show “other facts” indicating that the employee was acting within the scope of his employment in order to survive summary judgment. Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 778 (257 SE2d 186) (1979); Gordy Constr. Co. v. Stewart, 216 Ga. App. 882, 883 (456 SE2d 245) (1995).

In this case, Mr. Dester testified that he had finished work around noon the day of the wreck, at least seven hours before the wreck. At the time of the accident, he was returning home after taking his family out to dinner. With this testimony, Jenkins Construetion rebutted the presumption that Mr. Dester was acting within the scope and course of his employment. Mrs. Dester then had the burden of coming forward with “other facts” showing Mr. Dester was acting within the scope of his employment to survive summary judgment.

Mrs. Dester argued in her appellate brief that “other facts” showing her husband was acting within the scope of his employment included the following: he was subject to being on 24-hour call; he had his tools in his truck; he could use his truck for his personal affairs as a “perk” of his employment; and “a great deal of the drinking” took place in the company truck earlier in the day when Mr. Dester gave a fellow employee a ride home. However, while Mr. Dester was subject to being on 24-hour call for emergencies, the undisputed evidence showed he was not in fact on call the evening of the collision. Mr. Dester testified he left work around noon that day and gave a fellow employee a ride home. The company’s two-way radio was not in the truck the day of the wreck, so his employer could not have contacted him while he was having dinner out with his family. The employer testified that if he could not reach Mr. Dester at his home telephone after working hours, he would just call the next person in line.

This evidence fails to show through other facts that Mr. Dester was acting within the scope and course of his employment when he wrecked the truck; therefore, the trial court erred in denying Jenkins Construction’s motion for summary judgment on Mrs. Dester’s respondeat superior claim. Evans v. Dixie Fasteners, 162 Ga. App. 74, 75 (1) (290 SE2d 172) (1982) (being on call 24 hours a day does not necessarily mean employee was in the service of his employer when collision occurred).

6. Jenkins Construction argues the trial court erred in denying its motion for summary judgment on Mrs. Dester’s negligent entrustment claim. For Jenkins Construction to be liable under that doctrine, Mrs. Dester must show the company had actual knowledge that Mr. Dester was an incompetent driver, in this case by his “known habit of recklessness.” Gunn v. Booker, 259 Ga. 343, 347 (3) (381 SE2d 286) (1989); Wilson v. Ortiz, 232 Ga. App. 191, 194-195 (2) (501 SE2d 247) (1998). Evidence the employer knew the employee had a pattern of incompetence, or facts from which such knowledge could be reasonably inferred, can constitute sufficient circumstantial evidence to create a jury question on actual knowledge. Collins v. Everidge, 161 Ga. App. 708, 710 (2) (289 SE2d 804) (1982).

Mrs. Dester does not assert that Jenkins Construction had actual knowledge that Mr. Dester was drinking and driving the evening of the collision. Rather, she argues that Jenkins knew Mr. Dester had a pattern of driving while impaired, because he had driven home after drinking at Christmas parties or barbecues and because Mr. Dester had previously been fired from Jenkins Construction for having marijuana seeds in his car. However, Jenkins testified that he had seen Mr. Dester drink only a couple of beers at these parties, never liquor, and had never seen him impaired or intoxicated. He also testified that he had fired Mr. Dester in 1988 or 1989 after the prime contractor on a job found marijuana seeds in his car but that Mr. Dester said they were not his and that he did not use the drug. Jenkins rehired him a couple of years later after Mr. Dester again said he was not involved with drugs.

We have held evidence insufficient to show negligent entrustment when the car owner knew the driver had a drinking problem, when the employer knew an employee had beer cans in the company vehicle and drank on the premises, and also when the employer knew some employees bought beer when they fueled the company trucks. Clark v. Cox, 197 Ga. App. 83, 84 (1) (397 SE2d 598) (1990); Carolina Cable Contractors v. Hattaway, 226 Ga. App. 413, 416 (487 SE2d 53) (1997). As in those cases, the evidence Mrs. Dester presented in this case neither shows actual knowledge nor creates a reasonable inference that Jenkins Construction knew Mr. Dester drove while impaired by alcohol. The trial court erred in denying Jenkins Construction’s motion for summary judgment on Mrs. Dester’s negligent entrustment claim.

7. Finally, Jenkins Construction contends the trial court erred in denying summary judgment on Mrs. Dester’s negligent hiring and retention claim. We agree.

In Lear Siegler v. Stegall, 184 Ga. App. 27 (360 SE2d 619) (1987), the defendant’s employee had an automobile accident while he was driving a company-supplied vehicle to work. The plaintiff claimed that the defendant was negligent in hiring the employee, but we held that the theory of negligent hiring was conceptually inapplicable when the tortious conduct was committed outside the scope of employment. Id. at 28. In Harvey Freeman & Sons, Inc. v. Stanley, 259 Ga. 233, 234 (1) (378 SE2d 857) (1989), our Supreme Court explained the rationale of Lear Siegler and created the following exception:

[T]he holding in Lear Siegler acts to shield employers from liability for those torts his employee commits on the public in general, whereas the evidence in this case is that the two minor female plaintiffs probably never would have even met the Clarks or gone to their apartment if the Clarks had been merely tenants, and that their whole relationship began because she was the resident manager. Thus, even aside from the fact that Mrs. Clark was expected to be available to the tenants 24 hours a day, the landlord’s potential liability could rest on the special landlord-tenant relationship, even for acts which occurred in other than normal office hours and in other locations than the apartment complex.

Decided October 19, 1999

Reconsiderations denied November 8, 1999

Jones, Boykin, Stacy & Associates, Noble L. Boykin, Jr., for Linda Dester.

Brannen, Searcy & Smith, David R. Smith, Robert L. Jenkins, Beverly G. O’Hearn, for Danny Dester et al.

Id.; see also New Madison South &c. v. Gardner, 231 Ga. App. 730, 734 (2) (499 SE2d 133) (1998).

In this case, Mr. Dester was not acting within the course and scope of his employment, and Mrs. Dester’s relationship with Mr. Dester arose out of her marriage to him, not out of his employment with Jenkins Construction. As a result, the trial court erred in denying Jenkins Construction’s motion for summary judgment on Mrs. Dester’s negligent hiring and retention claim.

Judgment affirmed in Case No. A99A0930. Judgment reversed in Case No. A99A0931.

Blackburn, P. J., and Ellington, J., concur.