author: Smith, Judge.

text:
    A99A1524.
    STARKS v. THE STATE.
    (523 SE2d 397)
   Smith, Judge.

Roosevelt Starks was indicted by a Barrow County grand jury on two counts of selling cocaine. After the denial of his motion to suppress evidence seized in a search of his home pursuant to a warrant, he was tried by a jury. At the conclusion of the State’s evidence, the trial court directed a verdict of acquittal on Count 1. The jury found Starks guilty of Count 2. His motion for new trial was denied, and he appeals, raising five enumerations of error. We find no merit in any of Starks’s contentions, and we affirm the judgment.

Construed to support the jury’s verdict, the evidence presented at trial showed that in early June 1997, the Piedmont Northern Multi-Agency Narcotics Squad (MANS) Unit received information from an informant, John Wall, that he had purchased cocaine from Starks. Wall informed the squad that he was a cocaine addict trying to kick the habit, that Starks “was supplying a lot of people on the streets with cocaine,” and that he wanted to help the squad get Starks off the street. He also wished to be paid for his help. The officers agreed to work with Wall, and Wall made two controlled buys from Starks. Wall was paid $120 for his services.

Investigator Jimmy Purvis, who was assigned to the MANS Unit at the time, testified that for the first buy, he, Wall, and another officer met at a neutral location. Wall and his car were searched to ensure that he had not brought any controlled substances or weapons, and Wall was given $150 and a pocket cassette recorder. After being given instructions, Wall left to purchase the drugs. Law enforcement agents in one unmarked car followed him, another unmarked car stayed a short distance away for backup, and Purvis followed the buy in a helicopter. He kept Wall within sight and observed him drive to the buy location, stay there for five or ten minutes, and leave. Wall returned and gave Purvis the crack cocaine he had purchased, along with $10 he had not spent. Wall and his car were again searched, and no drugs or money were found. Unfortunately, the tape recorder had not functioned because Wall accidentally pressed the wrong button.

Several days later, Wall met with the officers again to make a second controlled buy. Wall and his car were again searched, and he was given $60 in $20 bills to make the purchase. This time, however, the bills were photocopied before they were given to Wall. Wall was again followed to the location. When he arrived at Starks’s home, Starks was sitting on the porch with his family. Wall bought $60 worth of crack cocaine, and he left. He was followed by the two unmarked cars, and after turning over the drugs, again he and his car were searched and he was paid. This time, Wall’s cassette recorder worked, and the transaction was captured on the recording.

Purvis then obtained a no-knock search warrant for Starks’s residence. The warrant was executed, and officers found $378 in cash, including the three photocopied bills that were given to Wall. Those bills were found in the pocket of a pair of pants in Starks’s bedroom. No drugs were found, but the officers found several weapons. Starks was arrested, and when given the opportunity to dress, he chose the pants in which the photocopied bills were found, which also contained identification belonging to him.

The substance purchased by Wall tested positive for cocaine. The State also introduced evidence of a 1988 transaction in which Starks made several sales of cocaine from his home and pled guilty to the crime. Wall identified Starks at trial as the person from whom he bought cocaine.

1. Starks contends the trial court erred in denying his motion to suppress the three photocopied bills seized in the search of his home. He asserts two bases for suppression. First, he maintains that because the affidavit of Purvis in support of the warrant was based entirely on information given to Purvis by Wall but did not establish that Wall was reliable, the affidavit was insufficient. Second, he asserts that the affidavit contains material misrepresentations and omissions that were either knowingly false or made with reckless disregard for the truth and were essential to establish probable cause. We do not agree with either contention.

The affidavit does not rely solely on the information given to Purvis by Wall; it also contains other information. Purvis swore that the Barrow County Sheriff’s Office informed him that it had received information that Starks was selling crack cocaine. He also swore that he was told by detectives from Athens-Clarke County that they had arrested several persons who stated they had bought crack cocaine from Starks. Purvis also stated in his affidavit that Starks had four previous arrests for drug charges, including possession and sale of cocaine. More importantly, the controlled buy at Starks’s home proved the reliability of the informant, and this alone provided probable cause for the search warrant.

We can find no material misrepresentations in the affidavit. Although it would have been better practice to disclose that Wall had pending charges against him and that he was paid, no evidence exists that these omissions were deliberate. Purvis informed the magistrate that Wall was an admitted drug addict and had bought drugs in the past. Moreover, even if this allegedly discrediting omitted material had been included, the affidavit would have been sufficient to support the magistrate’s conclusion that the informant was reliable and that probable cause existed for the search. Gremillion v. State, 233 Ga. App. 393, 394-395 (1) (504 SE2d 265) (1998).

Finally, Purvis independently confirmed that illegal drugs were being sold at Starks’s home by carrying out the first controlled buy. See Hockman v. State, 226 Ga. App. 521, 523 (1) (487 SE2d 102) (1997) (physical precedent only); see Pettus v. State, 237 Ga. App. 143, 144-145 (514 SE2d 901) (1999) (affidavit based upon affiant’s “own observations”). “The question presented is whether, taking a common sense approach, the information presented to the issuing magistrate showed a reasonable probability that contraband would be found in the place to be searched.” (Citation omitted.) Perkins v. State, 220 Ga. App. 524-525 (1) (469 SE2d 796) (1996). Clearly, it did, and the trial court did not err in denying the motion to suppress based on Starks’s contentions with regard to the affidavit.

2. Starks next maintains the trial court erred in denying his motion for a mistrial, made immediately after Purvis responded to a question on direct examination by stating that a stolen gun was found in the search of Starks’s home. Starks argued that he had not been charged with that crime, so this evidence placed his character in issue. The prosecutor responded by stating that the witness’s reply was inadvertent, and because the gun could have belonged to other members of Starks’s household, the answer did not necessarily prejudice Starks. The motion for mistrial was denied.

Starks argues that the record does not support the State’s assertion that the answer was inadvertent, because it was specifically and directly responsive to the question asked. He asserts that under “remarkably similar” facts in Chavous v. State, 205 Ga. App. 455 (422 SE2d 327) (1992), we held that the defendant’s character had been placed in issue improperly and a mistrial was warranted.

But the facts in Chavous are, in fact, remarkably dissimilar. In that vehicular homicide case, the defense and the State agreed prior to trial that in exchange for a defense stipulation as to blood alcohol level and the cause of the victim’s death, the State would not introduce evidence of prior similar transactions. Id. at 456 (2). To avoid violating this agreement, a State’s witness, a sheriff’s deputy who participated in the investigation, was instructed to limit his testimony to stating that he ran a computer check and determined the defendant’s license had expired. The witness was explicitly cautioned not to mention finding several previous traffic citations in the defendant’s car. But when asked whether he had determined that the defendant had an expired driver’s license, the witness responded that he had found the old citations in the car in the course of the investigation. Id. at 456-457. The trial court denied the defense motion for a mistrial but gave a curative instruction. This court reversed, holding that the case was controlled by King v. State, 261 Ga. 534-536 (2) (407 SE2d 733) (1991), in which an officer’s failure to comply with a previous ruling prohibiting mention of the defendant’s prior jail term required reversal of the denial of the motion for mistrial.

In this case, no specific instruction or ruling was violated. The witness simply responded to a question asking what was found in the search of Starks’s home, and the trial court expressly found that the response was inadvertent and gave a thorough curative instruction to the jury. In fact, the trial court questioned the jurors as to whether they could ignore the answer, and the jurors indicated that they could. The decision whether to grant a mistrial is within the sound discretion of the trial court, and the ruling will not be disturbed absent abuse. Osborn v. State, 233 Ga. App. 257, 258 (1) (504 SE2d 74) (1998). Under the circumstances presented here, the curative instruction to the jury was sufficient. See Maddox v. State, 227 Ga. App. 602, 603 (2) (490 SE2d 174) (1997). The trial court did not abuse its discretion in denying the motion for a mistrial.

3. Starks contends the trial court erred in allowing the State to introduce a prior conviction for sale of cocaine as a similar transaction because it was ten years old and insufficiently similar. We do not agree.

The State introduced the similar transaction evidence to show Starks’s bent of mind and course of conduct and to corroborate Wall’s testimony. The trial court permitted it and gave the jury a detailed limiting instruction. The similarity between the similar transaction and the charged crime was striking. Both were for the same offense, involved sales of similar amounts of the same drug, and took place at Starks’s home. Similar transactions more than ten years old have been allowed. Goodroe v. State, 238 Ga. App. 66, 68 (2) (a) (518 SE2d 139) (1999).

Starks also asserts that the trial court’s refusal to accept his stipulation of the prior conviction was error under Old Chief v. United States, 519 U. S. 172 (117 SC 644, 136 LE2d 574) (1997). But Old Chief involved a federal crime and a federal trial, under the Federal Rules of Evidence. And “the interpretation of Rule 403 of the Federal Rules of Evidence by the Supreme Court of the United States simply is not any precedent binding on this Court regarding the admissibility of similar crimes or extrinsic acts evidence.” Sisson v. State, 232 Ga. App. 61, 66 (3) (b) (499 SE2d 422) (1998). Here, the State declined to accept the offered stipulation, and the trial court ruled that it lacked authority to force the State to do so. Moreover, in Georgia, the determination that the probative nature of similar transaction evidence outweighs its prejudicial effect is implicit in the trial court’s ruling allowing its admission. Id. The trial court did not err in admitting the similar transaction.

4. Over Starks’s “continuing witness” objection, the trial court allowed the crime lab report to go out with the jury. We do not agree with Starks that this was error.

In Georgia, the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.

(Citation and punctuation omitted.) Gough v. State, 236 Ga. App. 568, 569-570 (2) (512 SE2d 682) (1999). It usually is applied to testimonial documentary evidence, such as affidavits and depositions. It has also been applied to written confessions, statements, and dying declarations. Buckner v. State, 219 Ga. App. 71, 74 (5) (464 SE2d 11) (1995). The lab report was admitted into evidence without objection, and the forensic chemist did not read the results into evidence. The trial court correctly ruled that the report was original evidence, not subject to the objection raised. The report was

direct evidence of the manner in which a scientific test was conducted and of the results thereby obtained. The proscription on the jury’s possession of written testimony does not extend to documents which are themselves relevant and admissible as original documentary evidence in a case.

(Citations and punctuation omitted.) Whiteley v. State, 188 Ga. App. 129, 132 (3) (372 SE2d 296) (1988).

5. Starks contends that his motion for a directed verdict of acquittal, made at the close of the State’s evidence, should have been granted. He argues that no drugs were found at his residence and that no eyewitness existed to the alleged drug transaction with the exception of Wall, who was “thoroughly discredited and impeached,” according to Starks. He also asserts that he offered a reasonable explanation for possessing the photocopied bills. We do not agree.

Decided October 13, 1999

Virgil L. Brown & Associates, Bentley C. Adams III, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

Not only was the drug transaction in question captured on a tape that was played for the jury, Wall identified Starks as the person who sold him crack cocaine. In addition, the three photocopied $20 bills that were found in Starks’s pants and the search of Wall before and after the transaction rule out the possibility that he brought the drugs to the buy himself. Although the evidence was circumstantial, the State need not exclude every hypothesis other than Starks’s guilt; it need only exclude every reasonable hypothesis. Martin v. State, 228 Ga. App. 59, 61 (1) (491 SE2d 142) (1997). Contrary to Starks’s assertion, the only explanation he offered for possessing the photocopied bills was that they were given to him by Wall in repayment of a loan. Contrary to Starks’s assertion, it is not reasonable that Starks, who was disabled and on a fixed income, would lend money to persons he barely knew.

Starks’s assertion that the forensic chemist could not state with certainty that the material tested was cocaine is belied by the record. The expert testified unequivocally that based upon the two tests he performed, the material contained cocaine.

The evidence did not demand a verdict of acquittal, and the trial court did not err in denying Starks’s motion for a directed verdict.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A99A1899.
    KMART CORPORATION v. LARSEN et al.
    (522 SE2d 763)
   Blackburn, Presiding Judge.

In this premises liability action, Kmart Corporation appeals, following a jury trial, from a judgment in favor of Kathryn and Vernon Larsen, contending the trial court erred by charging the jury on res ipsa loquitur. We affirm.

On appeal from a jury verdict, we construe the evidence to support the jury verdict and judgment. Neal v. CSX Transp., 213 Ga. App. 707 (2) (445 SE2d 766) (1994). The jury was presented two theories of the case. The shelves fell either as a result of Ms. Larsen, who was 85 years old, having bumped into them or as a result of Kmart’s negligence which was inferred by res ipsa loquitur. The evidence showed that the Larsens were shopping at a Kmart store in LaGrange. Walking to the pharmacy, the Larsens encountered five-foot lengths of shelving which were stacked and leaning against the shelving unit, partially blocking the aisle. The Larsens spoke with a Kmart employee, Brenda, who was standing on a step stool rearranging the shelving and hanging clothes. Brenda told the Larsens, who had already passed the stacked shelving, not to proceed down the aisle any further, but to take a different route to the pharmacy. After Ms. Larsen had turned back down the aisle, she felt something hit her on the head, and shelving fell down on and around her. Ms. Larsen suffered various injuries as a result. Ms. Larsen could not recall whether she bumped into the shelving, but she did not think she had. The trial court charged the jury on premises liability, negligence, res ipsa loquitur, and plaintiff’s duty of care. The jury found Kmart liable, accepting Ms. Larsen’s theory and rejecting Kmart’s contention that Ms. Larsen had walked into the stack of shelves.

Kmart challenges the charge on res ipsa loquitur contending that it did not conform to the evidence. We must determine whether the doctrine of res ipsa loquitur is appropriate where Ms. Larsen testified that she did not recall whether she bumped into the shelving, but she did not think she had. Res ipsa loquitur is a rule of evidence to be applied in “ ‘cases where there is no evidence of consequence showing negligence on the part of the defendant.’ ” Ballard v. Southern Regional Med. Center, 216 Ga. App. 96, 99 (453 SE2d 123) (1995); Stapp v. Grand Union Co., 203 Ga. App. 319 (416 SE2d 535) (1992). The doctrine authorizes, but does not require, the jury to infer facts from the circumstances in which the injury occurred, thereby filling the evidentiary gap.

A charge on res ipsa loquitur is not precluded by an unsupported contention that the plaintiff was negligent. Res ipsa loquitur is authorized where

(1) [the] injury [is] of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.

(Punctuation omitted.) Ballard, supra at 99 (2); Westinghouse Elec. Corp. v. Williams, 173 Ga. App. 118 (325 SE2d 460) (1984).

No evidence was produced from which a jury could infer that Ms. Larsen contributed to the incident. Moreover, the shelving was in the exclusive control of Brenda, the Kmart employee who was rearranging the shelves at that very moment. Brenda did not testify at tyial. Res ipsa loquitur is appropriate here as, ordinarily, a person walking down an aisle is not struck by falling shelves unless someone was negligent.

Decided September 28, 1999

Reconsideration denied October 14, 1999

Kinney, Kemp, Sponcler, Joiner & Tharpe, F. Gregory Melton, for appellant.

Willis, McKenzie & Long, Charles J. Willis, for appellees.

We are mindful that “res ipsa loquitur should be applied with caution and only in extreme cases [] and [is not applicable] when there is an intermediary cause which could have produced the injury.” Sams v. Wal-Mart Stores, 228 Ga. App. 314, 316 (491 SE2d 517) (1997). In Sams, the plaintiff was injured by cookware which fell off a shelf at Wal-Mart. No employees were in the area, and the cookware was within easy reach of other customers who might have improperly stacked it. Because the boxes were within the reach of other customers, Sams could not show that Wal-Mart retained exclusive control over them. Id. In the present case, there is no evidence of an intermediary cause.

Kmart’s argument that the charge relieved the jury from considering whether Ms. Larsen caused her own injuries by bumping into the shelves ignores that the inference can be overcome by evidence.

[T]he drawing of this inference is not necessarily to result in a finding in favor of the plaintiff. It imposes upon the jury the duty of making further inquiry as to whether this inference has been overcome by a satisfactory explanation. If the jury have drawn the inference of negligence, and there is evidence which satisfies their minds, notwithstanding such inference of negligence, that the occurrence was really brought about by some other cause [,] the inference is overcome, and the jury should find in favor of the defendant.

(Punctuation omitted.) Parham v. Roach, 131 Ga. App. 728, 732 (3) (206 SE2d 686) (1974).

The res ipsa loquitur charge did not prevent the jury from considering Kmart’s theory that Ms. Larsen caused her own injuries. Kmart’s theory was supported by a charge on the plaintiff’s duty of ordinary care. The jury determined that the evidence did not support Kmart’s theory. The trial court properly charged the jury on res ipsa loquitur.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


author: Miller, Judge.

text:
    A99A1598.
    BYRD v. THE STATE.
    (523 SE2d 578)
   Miller, Judge.

A jury convicted James Byrd of driving under the influence of alcohol to the extent that he was a less safe driver. In his sole enumeration of error, Byrd argues the evidence was insufficient to support his conviction because there was no evidence that his driving ability was impaired. We affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and Byrd no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Viewed in this light, the evidence showed that as the arresting officer was driving to a patrol post, he passed Byrd driving a vehicle and observed that Byrd was not wearing his seatbelt. The officer also noticed that Byrd’s face “looked puffy” and that his “eyes were red [and] glossy.” While the officer was turning his vehicle around to stop Byrd, Byrd quickly turned behind a closed store, parked his car, and exited the vehicle. The officer stopped him, and they returned to Byrd’s vehicle. The officer smelled alcohol on Byrd, who admitted that he had drunk a beer. An alco-sensor test at the scene indicated the presence of alcohol on Byrd’s breath. The officer placed Byrd under arrest and transported him to the jail. While traveling to the jail, Byrd became violent and verbally abusive toward the officer. At the jail, Byrd twice refused to take a designated breath test.

OCGA § 40-6-391 (a) (1) provides that it is unlawful for a person to drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent that the person is a less safe driver. Police officers may offer opinion testimony that the defendant was a less safe driver.

Here, the arresting officer testified that Byrd smelled of alcohol, that he “looked like he was intoxicated,” that Byrd engaged in furtive conduct, that he tested positive on the alco-sensor, that he behaved violently after his arrest, that he admitted to drinking alcohol, and that he refused the breath test. The officer also testified, based on his experience in DUI cases, that Byrd was driving under the influence of alcohol and that his driving ability was impaired by alcohol to the extent that he was a less safe driver. A rational trier of fact could have found beyond a reasonable doubt that Byrd was guilty of driving under the influence of alcohol to the extent that he was a less safe driver.

Decided October 14, 1999.

Coleman, Talley, Newbern, Kurrie, Preston & Holland, Robert C. Powell, for appellant.

Richard W. Shelton, Solicitor, for appellee.

Judgment affirmed.

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

       See OCGA § 40-6-391 (a) (1).

        McGhee v. State, 223 Ga. App. 123, 124 (476 SE2d 853) (1996); see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Waits v. State, 232 Ga. App. 357, 358 (1) (501 SE2d 870) (1998); Church v. State, 210 Ga. App. 670, 671 (2) (436 SE2d 809) (1993).

        Castillo v. State, 232 Ga. App. 354, 357 (502 SE2d 261) (1998) (furtive conduct at approach of law officers reflects consciousness of guilt).

        Heath v. State, 229 Ga. App. 69, 70 (493 SE2d 225) (1997) (belligerent behavior may be a sign of intoxication).

       OCGA § 40-6-392 (d) (refusal to take breath test is admissible as evidence of guilt).


author: McMurray, Presiding Judge.

text:
    A99A2067.
    WARE v. RUTLEDGE et al.
    (523 SE2d 411)
   McMurray, Presiding Judge.

Defendants-appellees Albert Rutledge, Frances Rutledge and Alan Lee Rutledge are the owners of certain real property in Chattooga County adjacent to the southern and western boundary lines of real property owned by plaintiff-appellant Paul Ware. Ware initiated this action as a claim for damages, alleging defendants intentionally trespassed by bushhogging plaintiffs planted pine trees, by constructing a fence on plaintiffs land, and by removing surveying stakes and monuments. Defendants denied the material allegations and counterclaimed, contending it was plaintiff who trespassed by planting pine trees on defendants’ land and by removing defendants’ surveying stakes. The precise locations of the boundary lines and of an easement in favor of plaintiff were tried before a jury which returned special verdicts in favor of defendants, based upon a 1997 plat of the survey performed by defendants’ expert, K. C. Campbell. Plaintiff Ware’s motion for new trial was denied, and this appeal followed. In two related enumerations of error, Ware contends the 1997 Campbell survey and plat do not constitute competent evidence because they are contradicted by the property description and common boundary as established in a 1955 plat performed by the county surveyor, and so the verdict is without evidentiary support. Held:

We affirm. The 1955 Scoggins plat is not presumptive evidence, and the Campbell survey was performed following the description of the original conveyance cum reservation from a common grantor. Thus, the Campbell survey was admissible evidence and was sufficient to support the jury’s verdict.

Decided October 14, 1999.

Edward F. Danowitz, Jr., for appellant.

H. Robert Hannah III, for appellees.

Surveys or plats of land within his county, made by the county surveyor under order of court, stating the contents, courses, and distances of any land surveyed by him are presumptive evidence of the facts set out therein. OCGA § 36-7-12; McClung v. Schulte, 214 Ga. 426, 428 (105 SE2d 225). The February 1955 Scoggins plat was prepared by J. B. Stephenson, the county surveyor in 1955. But nowhere is it shown that the 1955 Scoggins plat was prepared under court order. Since the Scoggins plat was not prepared by the county surveyor under court order, it was not presumptive evidence of the facts shown therein. Sutton v. City of Cordele, 230 Ga. 681, 683 (5) (198 SE2d 856). Ware’s contention that the 1997 Campbell survey is incompetent evidence to contradict the Scoggins plat is without merit.

Judgment affirmed.

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


text:
    A99A2284.
    HALL v. THE STATE.
    (523 SE2d 409)
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of robbery by sudden snatching and obstruction of an officer. The evidence which authorizes these convictions reveals that defendant snatched the victim’s purse as she was grocery shopping and then resisted arrest when police officers apprehended him a few minutes after the robbery. Defendant appealed to the Supreme Court of Georgia after the denial of his motion for new trial. The Supreme Court later transferred the appeal to this Court. Held:

1. Defendant challenges the sufficiency of the evidence. The victim’s testimony that defendant snatched her purse from a grocery cart as she turned to retrieve some eggs and an arresting officer’s testimony that defendant resisted arrest when officers apprehended him are sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Defendant contends the trial court erred in denying his motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69), pointing out that the State exercised four out of six peremptory challenges to strike African-Americans and arguing that two of the State’s race-neutral explanations are not worthy of belief. We disagree. After reviewing the State’s reasons for exercising its peremptory strikes, we cannot say the trial court abused its discretion in finding that the State’s explanations were race-neutral and sufficient. A trial court’s finding on such matters is entitled to great deference and will be affirmed on appeal absent clear error. Barnes v. State, 269 Ga. 345, 349 (6) (496 SE2d 674).

3. Defendant contends that he was denied his constitutional right to a fair and speedy trial because nearly 14 months had elapsed between the time of his arrest and the trial of his case. This claim must be examined under the test prescribed in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101), which requires consideration of (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right and (4) the prejudice to the defendant. Jackson v. State, 231 Ga. App. 187, 188 (2) (498 SE2d 780). And while courts must undertake a difficult and sensitive balancing process in weighing these factors, we must affirm the trial court’s decision absent an abuse of discretion. Snow v. State, 229 Ga. App. 532, 533 (494 SE2d 309).

(a) Length of Delay. Because the delay of almost fourteen months appears to raise a presumption of prejudice in the case sub judice, we move on and consider this delay along with the other three factors to determine if defendant’s constitutional right to a speedy trial was denied. Boseman v. State, 263 Ga. 730, 732 (1) (a) (438 SE2d 626).

(b) Reason for Delay. Defendant was in jail for eight or nine months before the State’s attorney began prosecuting its case against defendant. Although the State’s attorney provided no good reason for this delay, we weigh this delay as relatively benign since there is no proof that the State intentionally delayed prosecution of defendant’s case to impair the defense. Johnson v. State, 268 Ga. 416, 418 (2) (490 SE2d 91).

(c) Assertion of the Speedy Trial Right. Defendant did not assert a demand for speedy trial until about nine months after he was arrested, and, when the trial court offered to conduct a trial soon after this speedy trial demand was filed (in exchange for defendant’s agreement to waive formal indictment), defendant refused to proceed to trial without having the case against him proceed by formal arraignment. Further, when defendant’s case was called for trial, defense counsel (who had represented defendant for over a year before trial) asked for a continuance. Under these circumstances, the assertion of the right to a speedy trial must be weighted heavily against defendant. See Weidlund v. State, 191 Ga. App. 668, 669-670 (382 SE2d 709).

(d) Prejudice to Defendant. This factor requires consideration of three objectives: (i) to prevent oppressive pretrial incarceration, (ii) to minimize the accused’s anxiety and concern, and (iii) to limit the possibility that the defense will be impaired. Johnson v. State, 268 Ga. at 418 (2), supra.

Although we cannot say in the case sub judice that defendant’s 14-month stay in jail before trial was not oppressive, we will not weigh the first prejudice factor in defendant’s favor because defendant has not shown that he was exposed to substandard conditions while he was in jail, nor has defendant shown that he had to endure some burden beyond those that necessarily attend imprisonment. See Boseman v. State, 263 Ga. at 733 (1) (d), supra. Defendant therefore had to show actual anxiety and concern and specific evidence of how the delay impaired his ability to defend himself. See Johnson v. State, 268 Ga. at 418 (2), supra. We find no evidence in the case sub judice of defendant’s anxiety or concern so as to balance this factor in his favor. And, while defendant’s attorney speculated that possible exculpatory witnesses were not called as a result of the delay, he presented no evidence to that effect. As a consequence, this factor must also be weighted against defendant. See Perry v. Mitchell, 253 Ga. 593, 595 (322 SE2d 273).

Balancing all four factors under the Barker test, we conclude that the almost fourteen-month delay in the case sub judice did not violate defendant’s constitutional right to a fair and speedy trial.

4. Since defendant’s trial attorney represented defendant for more than a year before trial and since this attorney failed to conclusively prove that he did not have sufficient time to investigate defendant’s case, the trial court did not abuse its discretion in denying defendant’s motion for a continuance so that his trial attorney could have more time to prepare for trial. Applications for continuance are addressed to the trial court’s sound discretion and this discretion will not be disturbed on appeal absent some sort of abuse. Murphy v. State, 212 Ga. App. 153, 154 (3) (442 SE2d 2).

5. Defendant contends that Georgia’s robbery statute, OCGA § 16-8-40 (a), is unconstitutionally vague. We do not reach this issue because the Supreme Court of Georgia rejected defendant’s constitutional challenge to this Code section in its order transferring the case sub judice to this Court.

Judgment affirmed.

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

Decided October 14, 1999.

Kenneth D. Teal, for appellant.

Peter J. Skandalakis, District Attorney, for appellee.


author: Barnes, Judge.

text:
    A99A0830.
    LANCASTER v. THE STATE.
    (522 SE2d 30)
   Barnes, Judge.

Philip Lancaster appeals from the following misdemeanor convictions: (1) driving under the influence while it was less safe for him to do so; (2) failure to maintain a lane; and (3) possession of an open container of an alcoholic beverage while operating a vehicle. Lancaster contends his convictions should be reversed because (1) he was entitled to a mistrial when the State elicited testimony regarding his exercise of his right to remain silent, (2) the trial court erred when it allowed the State to introduce his admission that he consumed eight or ten beers, (3) the trial court should not have allowed the police officer to testify about his performance on a horizontal gaze nystagmus (“HGN”) test because it was not properly administered, and (4) insufficient evidence supports his convictions. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, the record shows that on October 1, 1995, at 12:21 a.m., Lancaster was driving on a four-lane divided highway when he swerved from the right lane into the left lane and almost collided with a patrol car driven by Officer Harper. Harper testified that he “had to slam on [his] brakes to keep from hitting him.” When Officer Harper saw Lancaster then cross over the outside edge of the right line by approximately two feet, he turned on his blue lights and stopped Lancaster. Lancaster pulled over to the side of the road abruptly, which caused his wheels to slide.

When Officer Harper approached the driver’s side of the Ford Explorer driven by Lancaster, he observed a female passenger who appeared to be intoxicated and smelled a strong odor of alcoholic beverages coming from the Explorer. When he spoke with Lancaster, Harper smelled alcohol on Lancaster’s breath and noticed that his speech was slurred, his eyes were bloodshot and watery, and his face was red and flushed. Lancaster also ran his words together, “was thick tongued,” and “seemed to be confused about his whereabouts.” When Lancaster denied he had been drinking, Harper performed an HGN test on Lancaster as “the beginning stage [ ] of [his] field sobriety evaluations.”

Officer Harper testified that he was trained and certified to perform this test, which involves tracking the movement of a person’s eye while it follows an object moved horizontally in front of the person’s face. He further testified that a lack of smooth tracking, jerkiness before 45 degrees, and jerkiness at maximum deviation indicate the presence of alcohol in a person’s system. When Harper performed this test on Lancaster, he observed a lack of smooth tracking, jerkiness before 45 degrees, and very distinct jerkiness at maximum deviation in both eyes.

Believing that he was probably dealing with a less safe driver, Harper asked Lancaster to step out of the vehicle to perform additional field sobriety evaluations. As Lancaster exited the vehicle, he staggered and grabbed the top of the door, as well as the top of his Explorer for support. Lancaster also staggered when he walked to the back of the Explorer at Harper’s request. Before asking Lancaster to perform additional field sobriety tests, Harper asked him if he had any physical impairments that would prevent him from balancing, and Lancaster replied that he did not.

Officer Harper testified that Lancaster was unable to maintain his balance during the one-leg stand after two attempts and two demonstrations by Harper. Lancaster also failed to perform the finger dexterity count satisfactorily after two demonstrations by Harper. Harper then asked Lancaster again whether he had been drinking, and Lancaster denied it. When Harper told Lancaster, “Come on, I can smell it,” Lancaster admitted drinking eight or ten beers, and Harper placed him under arrest for driving under the influence. Lancaster refused to consent to a blood or breath test after Harper read him the implied consent warning. Harper testified that, based on his training, experience, as well as his observations of Lancaster’s driving, speech, breath odor, and appearance, it was his opinion that Lancaster was impaired by alcohol to the extent that he was a less safe driver.

During an inventory search of the Explorer, Harper saw a clear, plastic cup containing a yellow liquid that, in his opinion, was beer. Harper testified that he was familiar with the appearance and odor of beer and that the yellow liquid in the cup looked and smelled like beer. This cup was located in “the inside console.” He also found a still cold, empty beer can under the driver’s seat. When Lancaster’s counsel cross-examined Harper with his report that stated that a “clear, plastic cup containing one-fourth of a mixed liquor [was] under the driver’s seat,” Harper admitted that he was mistaken about the cup containing beer and that his report correctly identified the liquid in the cup. He further testified that the cup was located in the console between the two front seats and that he did not know whether the cup was used by Lancaster or his passenger.

Harper also admitted that he was trained to give the HGN test while the suspect was “standing away from blue lights,” and that he gave the test to Lancaster while he was sitting. Additionally, he explained that he decided to arrest Lancaster for driving under the influence after the finger dexterity count and before Lancaster admitted drinking eight or ten beers: Finally, he acknowledged that he did not give Lancaster Miranda warnings after the finger dexterity count and that he asked Lancaster again whether he had been drinking to “satisfy” himself and build the case against Lancaster.

1. Lancaster contends the trial court erred by denying his motion for a mistrial based upon an alleged improper comment by the prosecutor on the defendant’s right to remain silent. The record shows the trial court held a bench conference after Lancaster’s counsel moved for a mistrial, but this conference was not transcribed by the court reporter. Following this bench conference, the trial court gave the jury a curative instruction. Because Lancaster did not renew his motion for a mistrial after this curative instruction, he failed to preserve this alleged error for our review. Ward v. State, 234 Ga. App. 610, 611-612 (507 SE2d 506) (1998).

2. Lancaster asserts the trial court erred when it denied his motion to suppress his admission that he had consumed eight or ten beers. Lancaster claims the officer’s failure to give him the warnings required by Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), rendered it inadmissible.

The trial court denied Lancaster’s motion to suppress because it determined the police officer was not required to give Lancaster a Miranda warning since Lancaster was not “in custody” at the time the officer asked him about his alcohol consumption. “The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous.” Johnson v. State, 234 Ga. App. 116, 118 (2) (506 SE2d 234) (1998).

In Berkemer v. McCarty, 468 U. S. 420 (104 SC 3138, 82 LE2d 317) (1984), the United States Supreme Court formulated an objective test to determine if a person is “in custody.”

That test is whether a reasonable person in the detainee’s position would have thought the detention would not be temporary. [Cit.] The Supreme Court also held that the safeguards prescribed by Miranda become applicable only after a detainee’s “freedom of action is curtailed to a ‘degree associated with formal arrest.’ (Cit.)” [Cit.] The rationale behind the holding is that although an ordinary traffic stop curtails the freedom of action of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee’s exercise of his privilege against self-incrimination so as to require that he be advised of his constitutional rights.

State v. Pastorini, 222 Ga. App. 316, 317 (1) (474 SE2d 122) (1996).

In this case, Officer Harper did nothing that “would have reasonably communicated to [Lancaster] that he was in custody.” Metheny v. State, 197 Ga. App. 882, 884 (1) (a) (400 SE2d 25) (1990). Harper’s plan to arrest Lancaster was never communicated to Lancaster and “therefore could have no bearing on [his] perception under the Berkemer rule.” Id. See also Johnson, supra, 234 Ga. App. at 119 (2) (.Miranda is not triggered by fact that a person has become the focus of an investigation to a point where the police have probable cause to arrest). Likewise, Officer Harper’s internal motivations for his questions to Lancaster could not have affected Lancaster’s perception. The subjective belief or intent of an officer does not determine whether a person is “in custody.” See State v. Kirbabas, 232 Ga. App. 474, 476 (502 SE2d 314) (1998).

Because the trial court’s determination that Lancaster was hot “in custody” is not clearly erroneous, we affirm the denial of Lancaster’s motion to suppress.

3. Lancaster contends the trial court erred when it allowed the State to present evidence of his performance on the HGN test because the officer administered it to him while he was sitting, instead of standing. Although the officer admitted he violated law enforcement guidelines when he administered the test to Lancaster while he was sitting, Lancaster submitted no evidence showing how this would affect the validity of the test.

In Hawkins v. State, 223 Ga. App. 34, 38 (1) (476 SE2d 803) (1996), we held that the “HGN test is an accepted, common procedure that has reached a state of verifiable certainty in the scientific community and is admissible as a basis upon which an officer can determine that a driver was impaired by alcohol.” As a result, evidence of an HGN test should be admitted by the trial court without expert testimony. Id. We also rejected the appellant’s claim that an HGN test cannot be admitted “until a foundation is laid regarding the proper administration of the test[].” Id. at 35, 38. Instead, we placed the burden on the party objecting to the admissibility of an HGN test to show that it was not properly administered. Id. at 38. Finally, we recognized that “[a] challenge to the method by which an admissible [HGN] test is administered would be the subject of a timely motion or objection at trial and a subsequent analysis thereon by the trial court on a case-by-case basis.” Id.

Because the appellant in Hawkins did not meet his burden of showing the police officer did not properly administer the test, we did not address whether a party opposing the admission of an HGN test must also show how an error in its administration may have affected the validity of the test in order to preclude its admission into evidence. In this case, for example, it is difficult to understand, without such testimony, why the results of the HGN test administered to Lancaster could be questionable simply because he was sitting instead of standing.

Decided August 17, 1999

Reconsideration denied October 15, 1999

Virgil L. Brown & Associates, Virgil L. Brown, Larkin M. Lee, Eric D. Hearn, Bentley C. Adams III, for appellant.

Carmen Smith, Solicitor, Gregory L. Young, Jody L. Peskin, Assistant Solicitors, for appellee.

We need not address this issue here, however, because there was ample evidence, apart from the HGN test, to support Lancaster’s conviction for driving under the influence of alcohol. Tuttle v. State, 232 Ga. App. 530, 534 (3) (502 SE2d 355) (1998). Harm as well as error must be shown for reversal. Guild v. State, 234 Ga. App. 862, 868 (7) (c) (508 SE2d 231) (1998).

4. In his remaining enumeration of error, Lancaster contends there was insufficient evidence to support his driving under the influence and open container convictions. We disagree. The circumstantial evidence, even without the results of the HGN test, amply supports his conviction for driving , under the influence, as well as open container conviction. See Firsanov v. State, 270 Ga. 873, 874 (1) (513 SE2d 184) (1999); Wynn v. State, 236 Ga. App. 98, 100 (2) (511 SE2d 201) (1999).

Judgment affirmed.

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


text:
    A99A1182.
    LAMB v. STATE FARM MUTUAL AUTO INSURANCE COMPANIES.
    (522 SE2d 573)
   Miller, Judge.

Matthew K. Lamb sued State Farm Mutual Auto Insurance Companies (“State Farm”) for allegedly seizing and converting his Honda CRX which had been towed from the scene of an accident involving State Farm’s insured. After the trial court directed a defense verdict on Lamb’s claims for punitive damages, attorney fees, and expenses of litigation, Lamb voluntarily dismissed his case. Enumerating two errors, Lamb appeals the verdict directed on these claims.

On March 9, 1996, Lamb was injured and his car sustained severe damage in a collision with Sally Soggs, State Farm’s insured. A State Farm appraiser deemed Lamb’s 1987 Honda CKX, which had in excess of 177,000 miles, to be a total loss. While settlement negotiations were pending, State Farm arranged for Lamb’s Honda to be towed to Atlanta. Lamb then brought the underlying action for conversion.

State Farm assigned claims representative Jill Heatherly to handle Lamb’s property damage claim. Heatherly testified that she had three separate telephone conversations with Lamb. During the initial discussion on March 11, Lamb told her that he wanted his car back “if it’s fixable.” Lamb admitted, however, that after he examined his car a few days after the accident, he believed that it was totaled. Heatherly testified that on March 15, Lamb gave her permission to have the Honda moved from Chadwick’s Wrecker Service (“Chad’s”). According to Heatherly, with Lamb’s consent, she arranged for Sadisco, a secured salvage yard in Atlanta, to take the Honda to stop the accrual of daily storage charges at Chad’s. Heatherly testified that on the morning of March 18, Lamb agreed to accept State Farm’s offer as to the fair market value of the vehicle and Lamb indicated that he would come to her office with his car title to conclude the settlement. Heatherly made a log entry, “[claimant coming in for total loss settlement.” But Lamb never came, and she never spoke with him again. Later that same day, State Farm received a letter of representation from Lamb’s attorney. According to Heatherly, she informed Lamb’s attorney on March 21 that the car had been moved.

Three days after the collision, Lamb went to Chad’s to retrieve his personal belongings and to examine the Honda. While at Chad’s, Lamb inquired about obtaining the rims and tires off the Honda. Lamb was told that if he found suitable replacements, he could have them. About a month and a half later, when Lamb contacted Chad’s about the tires and rims, he learned that the Honda had been removed. In July, Lamb’s counsel advised State Farm that Lamb would accept $2,300 for the vehicle plus his rims and tires. However, Lamb did not seek the return of the vehicle itself until September 27, when he lodged a written demand. In this letter, Lamb demanded that State Farm bring his Honda back from Atlanta to Columbus by October 10. In response, State Farm agreed to the car’s return provided that Lamb would pay $193 to reimburse certain expenses. State Farm also told Lamb that either he or someone on his behalf could go to Atlanta to retrieve the tires and rims from Sadisco’s facility. Lamb did neither, instead filing the underlying action shortly after State Farm did not return his car.

In March 1997, to halt the continuing accrual of storage charges at Sadisco, State Farm arranged for the return of the Honda to the driveway of Lamb’s home. Up to that point, Sadisco had billed State Farm more than $600 in storage and towing charges for a vehicle with an estimated salvage value of $500. As of the time of trial, Lamb admitted that the Honda was still sitting in his backyard with its rims and tires in place.

1. Lamb contends that the trial court erred in directing a verdict on the issue of attorney fees and expenses of litigation. He claims that the court overlooked the fact that he sought these damages on two separate grounds: (1) for the initial conversion of his vehicle in March and (2) for State Farm’s refusal to unconditionally return his car after his demand in September.

Lamb sought damages on the grounds that State Farm had been stubbornly litigious and caused him unnecessary trouble and expense within the meaning of OCGA § 13-6-11; however, Lamb did not seek damages on the basis of bad faith. Where bad faith is not at issue and the only asserted basis is either stubborn litigiousness or causing unnecessary trouble and expense, if a bona fide controversy is shown to exist, damages under OCGA § 13-6-11 cannot be awarded. Fuel South v. Metz, 217 Ga. App. 731, 732 (1) (458 SE2d 904) (1995); Allmond v. Walker, 172 Ga. App. 870, 871 (2) (324 SE2d 812) (1984); see Latham v. Faulk, 265 Ga. 107, 108 (2) (454 SE2d 136) (1995).

Here, without question, there was a bona fide controversy between these parties. In fact, most of the lawsuit hinges on whether Lamb did, in fact, give permission to State Farm’s adjuster to have his car removed from Chad’s. Heatherly testified that Lamb gave his consent; Lamb testified that he did not do so. Also at issue was whether State Farm had a right to refuse to return Lamb’s vehicle unless Lamb paid certain charges. Since the resolution of genuine disputed factual issues was essential, State Farm had a right to litigate these issues without being penalized under OCGA § 13-6-11. Metz, 217 Ga. App. at 733 (1). On retrial, should the jury find that Lamb provided his consent, no action for conversion would lie as a matter of law because an essential element of that tort, unauthorized appropriation of personal property, would be absent. Kornegay v. Thompson, 157 Ga. App. 558, 559-560 (2) (278 SE2d 140) (1981). State Farm’s refusal to unconditionally return the vehicle after Lamb demanded it back is controlled by Connors v. Omni Ins. Co., 195 Ga. App. 607 (1) (394 SE2d 402) (1990) (demand and wrongful refusal are prerequisites to a trover action).

Decided September 16, 1999

Reconsideration denied October 15, 1999

Peter G. Williams, for appellant.

Tisinger, Tisinger, Vance & Greer, Douglas C. Vassy, for appellee.

2. Lamb contends that the trial court erred in granting a directed verdict on the issue of punitive damages.

OCGA § 51-12-5.1 (b) requires that a plaintiff present “clear and convincing” evidence of the defendant’s egregious conduct in order to warrant an award of punitive damages. Absent wilful misconduct, malice, fraud, wantonness, or oppression, there can be no recovery of punitive damages. Stolle Corp. v. McMahon, 195 Ga. App. 270, 273 (5) (393 SE2d 52) (1990). Where there is no evidence from which a jury could conclude that a defendant’s conduct rose to the level necessary to impose liability for punitive damages, the trial court may properly direct a verdict. Id. Here, because Lamb failed to offer any evidence to prove egregious misconduct on the part of State Farm, a directed verdict was appropriate. See Borg-Warner Acceptance Corp. v. Boat Trading, 194 Ga. App. 63, 65 (3) (389 SE2d 555) (1989).

Judgment affirmed.

Smith and Eldridge, JJ, concur.

       Lamb brought a separate lawsuit against Soggs for his alleged personal injuries and the property damage to his vehicle.

       This vehicle sustained severe front end damage, a bent steering wheel, as well as a broken windshield and dashboard.

       Lamb disputed that value and claimed the car was worth between $800 and $1,200.


author: Phipps, Judge.

text:
    A99A1015.
    BATCHELOR v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (526 SE2d 68)
   Phipps, Judge.

State Farm Mutual Automobile Insurance Company filed this complaint for declaratory judgment against Melissa Batchelor, John Glenn, and Warren Hauling, Inc. Batchelor appeals the trial court’s grant of State Farm’s motion for summary judgment.

Batchelor brought a personal injury action against Glenn and his employer Warren Hauling as a result of a traffic collision involving a truck operated by Glenn, owned by Warren Hauling, and insured by State Farm. State Farm sought a declaration that its insurance policy does not provide coverage for the accident. State Farm showed that its policy does not cover Glenn unless his use of the vehicle is with the consent of Warren Hauling and alleged that, on the evening of the accident, Glenn was using the truck for personal reasons even though he had permission to drive it only to and from work.

Pursuant to the Civil Practice Act, OCGA § 9-11-36 (a) (1), State Farm served Glenn with a request for admissions concerning the truth of the above allegations. Glenn did not respond to the request for admissions, thereby admitting them. State Farm later moved for summary judgment, claiming that there was no material issue of fact with respect to the matters set forth in the unanswered request for admissions. In opposition to State Farm’s motion, Batchelor filed an affidavit in which Glenn testified that Warren Hauling had given him permission to operate the truck for his personal use. Because OCGA § 9-11-36 (b) provides that any matter admitted under OCGA § 9-11-36 is conclusively established unless the court on motion permits withdrawal'of the admission, and because there was no motion to withdraw Glenn’s admission, the court held that Batchelor could not contradict the admitted facts by affidavit testimony. As a result, State Farm’s motion for summary judgment was granted. Held:

It is true that unlike an “evidentiary admission,” which may be contradicted, facts admitted via requests for admission are “judicial admissions,” which are conclusive unless withdrawal is permitted by the trial court. But the question presented here is whether such admissions by one defendant are binding on another defendant.

OCGA § 24-3-31 (2), which is part of the Evidence Title of the Georgia Code, provides:

The admission by a party to the record shall be admissible in evidence when offered by the other side, except in the following cases: . . . [a]dmissions of one of several parties with no joint interest, unless the issue is of such character that the effect of the admission can be confined to the one party alone. . . .

Under this statute, it has been held that admissions in judicio as to matters of fact against one party’s interest are binding on another party where the interests of the two are joint but not where their interests are adverse. Inasmuch as the interests of Batchelor and Glenn are adverse, the judicial admissions of the latter are not binding on the former under OCGA § 24-3-31 (2).

Nor is Glenn’s admission binding on Batchelor under OCGA § 9-11-36 (b). Even though OCGA § 9-11-36 (b) states that unwithdrawn or unamended admissions are conclusively established, it does not expressly provide that such admissions are binding on a co-party. Moreover, OCGA § 9-11-36 by its terms does not authorize one party to object to a request for admissions directed to another party or to move to withdraw another party’s admission. Consistent with this statutory scheme, the United States District Court for the Northern District of Georgia held in Alipour v. State Auto. Mut. Ins. Co., that under the federal Civil Practice Act “the admissions of a party [do not] bind a coparty.” Although Alipour is not legally binding on this court, we find it persuasive.

Decided October 15, 1999.

Jack F. Witcher, Ana M. Rountree, for appellant.

Sharon W. Ware & Associates', Donna W. Darroch, for appellee.

For the above reasons, the grant of summary judgment against Batchelor must be reversed. Other issues are moot.

Judgment reversed.

Smith and Eldridge, JJ., concur.

       OCGA § 9-11-36 (a) (2).

        Stone v. Lenox Enterprises, 176 Ga. App. 696, 697 (1) (337 SE2d 451) (1985).

        Piedmont Aviation v. Washington, 181 Ga. App. 730, 731 (1) (353 SE2d 847) (1987) and cits.; see also Thomas v. Barnett, 107 Ga. App. 717, 729 (5) (131 SE2d 818) (1963) (where defendants were sued as joint tortfeasors and filed separate answers admitting the allegations of negligence against the co-defendant but denying the allegations of negligence against him, the admission by the one that the other was negligent could not be considered “as evidence against” the other); compare KHD Deutz of America Corp. v. Utica Mut. Ins. Co., 220 Ga. App. 194, 198 (3) (469 SE2d 336) (1996) (nothing prevents consideration of one party’s admission as to his own conduct simply because establishing such party’s wrongful conduct happens to work to the detriment of another party).

       See OCGA § 9-11-36 (a) (2).

       See OCGA § 9-11-36 (b).

       (Punctuation omitted.) 131 FRD 213, 215 (N.D. Ga. 1990), citing Wright & Miller, Fed. Practice & Procedure § 2264, p. 741 (1970).

        Winburn v. McGuire Investment Group, 220 Ga. App. 384, 385 (1) (469 SE2d 477) (1996) .

        G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 268 Ga. 327 (1) (486 SE2d 810) (1997) .


text:
    A99A1087.
    BROWNLEE et al. v. WINN-DIXIE ATLANTA, INC.
    (523 SE2d 596)
   Miller, Judge.

Stephanie Brownlee, individually and as next friend of her three minor children, sued Winn-Dixie Atlanta, Inc. for negligence. Brown-lee presented evidence that Roderick Smith, a uniformed Winn-Dixie bag boy positioned to bag groceries, injured her children when he discharged a mace-like spray in the direction of the children who were standing in a check-out aisle. Smith testified, without contradiction, that he discharged the mace-like spray while engaged in horseplay and that the action was personal and not connected to his work duties. The trial court granted summary judgment to Winn-Dixie, rejecting Brownlee’s theories of respondeat superior and premises liability. Brownlee appeals.

On appeal of a grant of summary judgment, the appellate court must determine whether the trial court erred in concluding that the moving party demonstrated that no genuine issue of material fact remained and that the party was entitled to judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. We view the evidence, and all reasonable conclusions and inferences drawn from it, de novo and in the light most favorable to the non-movant.

1. Regarding respondeat superior, the general rule for determining whether the master is liable for the acts of an employee is “not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment.” If a servant steps aside from his master’s business to do an act entirely disconnected from it, and injury to another results from the act, the servant may be liable, but the master is not liable. Summary judgment for the master is appropriate where the evidence shows that the “servant was not engaged in furtherance of his master’s business but was on a private enterprise of his own.”

Because engaging in horseplay and spraying mace were not in any way connected to Smith’s bag boy duties at Winn-Dixie, Smith abandoned Winn-Dixie’s business when he engaged in this conduct. -The trial court did not err in granting summary judgment on the respondeat superior theory.

2. The concept of premises liability imposes upon the proprietor a duty to exercise ordinary care in keeping his premises safe for invitees. This concept focuses on different inquiries depending on whether the injury arises (a) from pre-existing conditions or (b) from active negligence, i.e., from the proprietor’s acts or omissions occurring at the time the plaintiff was on the premises. In the former, the inquiry is whether the proprietor had superior knowledge of the defect or dangerous condition; in the latter, the inquiry is whether the proprietor could reasonably foresee that his actions or inactions would cause injury to the plaintiff. If a third party’s misconduct causes injury to a plaintiff while on the premises, the former concept applies, and the inquiry is whether the proprietor had superior knowledge of the danger that a third party would so act.

Decided October 15, 1999.

Martin & Martin, Karen K. Martin, for appellants.

Fain, Major & Wiley, Gene A. Major, John K. Miles, Jr., for appellee.

Active negligence, the latter concept, does not apply here. Because Smith’s actions were outside the scope of his employment, he was a third party at the time of the incident. The inquiry then is whether Winn-Dixie had superior knowledge that Smith would so act. Winn-Dixie did not. There was no evidence of (i) prior horseplay, (ii) employees or third parties previously possessing or using mace on the store’s premises or elsewhere, or (iii) Smith playing with the cannister or threatening anyone with it that evening or at any other time before his actually spraying it.

While superior knowledge is generally an issue for the jury, Brownlee presented no evidence that Winn-Dixie had actual or constructive knowledge of the danger. Under such undisputed facts, the trial court properly granted summary judgment to Winn-Dixie on the premises liability theory also.

Judgment affirmed.

Smith and Eldridge, JJ., concur.

       OCGA § 9-11-56 (c).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       (Citation and punctuation omitted.) Morrison v. Anderson, 221 Ga. App. 396, 398 (2) (471 SE2d 329) (1996).

       Id.

       (Citations and punctuation omitted.) Rucker v. Troll Book Fairs, 232 Ga. App. 189, 191 (1) (501 SE2d 301) (1998).

       See Morrison, supra, 221 Ga. App. at 398 (2) (waitress’s following of patrons outside the restaurant and hugging them were purely personal acts and outside the scope of her employment); Rucker, supra, 232 Ga. App. at 190-191 (1) (employee’s assault and battery against co-worker were personal acts and not in prosecution of company business).

       OCGA § 51-3-1; Robinson v. Kroger Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997).

        Lipham. v. Federated Dept. Stores, 263 Ga. 865 (440 SE2d 193) (1994).

       Adams & Adams, Ga. Law of Torts, p. 99, § 4-1 (1996); see Hartley v. Macon Bacon Tune, 227 Ga. App. 679, 681-682 (490 SE2d 403) (1997), vacated and modified, 234 Ga. App. 815, 818 (507 SE2d 259) (1998); Wade v. Mitchell, 206 Ga. App. 265, 266 (2) (b) (424 SE2d 810) (1992).

       See Sturbridge Partners v. Walker, 267 Ga. 785, 786 (482 SE2d 339) (1997).

        Robinson, supra, 268 Ga. at 748-749 (lack of evidence showing proprietor’s knowledge of hazard requires summary judgment).


text:
    A99A1155.
    RAINWATER v. THE STATE.
    (523 SE2d 586)
   Phipps, Judge.

Patrick Rainwater was convicted of felony possession of marijuana after a bench trial. The marijuana was seized by police through consensual searches of the Rainwater family’s yard and dwelling. Rainwater contends the consent for the searches was invalid, and he appeals, challenging the trial court’s denial of his motion to suppress. We must decide two issues of consent. First, did Rainwater’s 15-year-old sister give valid consent to the search of the yard? Second, did Rainwater’s mother give valid consent to the search of the home?

On May 29, 1998, 15-year-old Robin Rainwater called the Clayton County Police and made a complaint. Shortly after midnight, Officer Christopher Hutchens responded to the Rainwater family’s home. Patrick Rainwater answered the door. Hutchens asked for Robin Rainwater. Rainwater told Hutchens that he would get his mother, Patricia Rainwater. He did, and the three of them went to Robin Rainwater’s bedroom “and woke her up.”

Hutchens and Robin Rainwater went outside and spoke alone. She informed Hutchens that her brother and her parents used and sold narcotics and that she had called the police because they refused to stop. She told Hutchens she had taken a small amount of marijuana from the house and placed it outside in the drain area of a flower bed so police would believe her. She told him to go and look for himself. He did, and in the drain of the flower bed next to the house, he found one clear plastic bag of marijuana. She told him that more marijuana was inside the house.

Hutchens then confronted Rainwater and his mother with the bag of marijuana. Rainwater said it was his. He was arrested, and Hutchens told Mrs. Rainwater that he wanted to search the house. She asked Hutchens what her options were. Hutchens explained that, because of the marijuana that he had found in the yard and what her daughter had told him about more in the house, he believed there was a basis to search the home and she could consent or he would get a search warrant. If he had to get a search warrant, he told her, everyone in the house would be detained outside while the warrant was obtained. She consented and signed a “Permission to Search” form. In part through directions given by Rainwater himself, more than six ounces of marijuana were found in various places in the house.

When reviewing a trial court’s order on a motion to suppress, we construe the evidence most favorably to upholding the trial court’s findings and judgments. “[A]ny of the co-inhabitants [of a premises] has the right to permit [an] inspection in his own right [,] and . . . the others have assumed the risk that one of their number might permit the common area to be searched.”

Minors are not prevented from giving consent. Instead, their capacity becomes a factor which is considered on a case-by-case basis with other factors relevant to the extent of their control over the area searched. In Davis v. State, the Supreme Court of Georgia “judge[d] it important to examine a child’s mental maturity and his ability to understand the circumstances in which he is placed, and the consequences of his actions, when considering a child’s age in relation to the child’s ability to give valid consent.” Other considerations include:

whether the minor lived on the premises; whether the minor had a right of access to the premises and the right to invite others thereto; whether the minor was of an age at which he or she could be expected to exercise at least minimal discretion; and whether officers acted reasonably in believing that the minor had sufficient control over the premises to give a valid consent to search.

Robin Rainwater resided on the premises with no apparent limitations on her access to common areas. She was two months from her sixteenth birthday and therefore at an age where she could be expected to exercise at least minimal discretion. A sufficient level of maturity and control was demonstrated when she called the police to the house and when her mother allowed her to confer independently with the officer. Also, she demonstrated an appreciation of the consequences of a police search. Unlike the ten-year-old child in Davis who called the police because he wanted to get help for his parents, Robin Rainwater called the police because she was exasperated with drug use and distribution in her home. She called the police only after she had asked her family members to stop illicit drug activity and they had refused. These facts show that she possessed a sufficient degree of discretion to give valid consent to the search of the yard.

As to the search of the home, Patricia Rainwater’s consent is not invalidated because Hutchens represented he could get a search warrant and the occupants of the house would be detained while he did. Hutchens did not misrepresent the likelihood of getting a search warrant. Based on Robin Rainwater’s tip that her family members possessed illegal drugs in the house, which was corroborated by the marijuana found outside, and Patrick Rainwater’s acknowledgment of ownership of it, there was probable cause to believe illegal drugs were present in the house.

Decided October 15, 1999

Lee Sexton, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Clifford A. Sticker, Assistant District Attorneys, for appellee.

Further, detaining the occupants outside would have been a reasonable measure to prevent the destruction or removal of drugs from the house. It was not advanced as a ploy to circumvent the requirement for a search warrant. Patricia Rainwater’s consent was valid.

Because Rainwater’s 15-year-old sister gave valid consent to search the yard and his mother gave valid consent to search the house, the trial court did not err in denying Rainwater’s motion to suppress.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); State v. Wright, 224 Ga. App. 753, 754 (482 SE2d 441) (1997).

        United States v. Matlock, 415 U. S. 164, 171, n. 7 (94 SC 988, 39 LE2d 242) (1974).

       See Davis v. State, 262 Ga. 578, 580-581 (1) (422 SE2d 546) (1992); Atkins v. State, 173 Ga. App. 9, 10-11 (2) (325 SE2d 388) (1984), aff’d, 254 Ga. 641 (331 SE2d 597) (1985).

       262 Ga. at 581.

       Id. at 580, quoting Atkins, supra at 11.

       See Rajappa v. State, 200 Ga. App. 372, 374 (408 SE2d 163) (1991) (Where 15-year-old daughter of defendant answered the door and admitted police to search for defendant, who was found in the apartment, we noted, “at age 15, [defendant’s daughter] was at an age at which she could be expected to exercise at least minimal discretion.”).

       See Solomon v. State, 236 Ga. App. 778, 780 (2) (513 SE2d 520) (1999) (“[W]hen an officer represents to an accused that a warrant to search will be obtained if consent is refused, and does not have probable cause to secure the warrant, then the accused’s consent is invalid”) (punctuation omitted); Darby v. State, 216 Ga. App. 781, 783 (2) (455 SE2d 850) (1995) (reversed because officer represented search warrant would be obtained if consent refused, but officer did not have probable cause).

       Compare Murphy v. State, 230 Ga. App. 365, 368 (1) (496 SE2d 512) (1998) (reversed where officers who did not have probable cause to search defendant obtained his consent by telling him he would be detained while they applied for a search warrant).


text:
    A99A1277.
    EVANS et al. v. CITY OF COVINGTON et al.
    (523 SE2d 594)
   Miller, Judge.

Shortly after tripping on a sidewalk in disrepair, Jeanne Evans contacted the City of Covington for compensation and was referred to the city’s insurance company, USF&G. Within days, USF&G began payments under a partial settlement with Evans, which allowed her to seek further compensation if her injuries were worse than expected. Ten months later Evans concluded that her injuries were indeed worse, but USF&G refused to pay more than $15,000. Evans sent the city an ante litem notice of her claim. Joined lay her husband, who alleged a claim for loss of consortium, she later sued the city for negligence. The court entered summary judgment on both claims on the ground that the ante litem notice was more than six months after the accident. Because a city may not waive OCGA § 36-33-5’s ante litem notice provisions, we affirm.

1. As a condition precedent to bringing a tort suit against a city, OCGA § 36-33-5 requires the injured person to present a written claim to the city’s governing authority within six months of the incident. Although substantial compliance with the statute suffices, “[flormal, written notice is required.” Oral notice is insufficient.

Because the only writing Evans gave to the city was her counsel’s letter sent ten months after the incident, she does not contend that she complied with the ante litem notice requirement. The statute also required her husband to give written notice under the statute, which he did not do.

2. Rather, Evans and her husband argue that the city waived its right to the ante litem notice when it allowed USF&G to enter into and begin performing a partial settlement agreement on its behalf. But assuming USF&G purported to waive the ante litem notice, it did not have the authority to bind the city to such a waiver. An insurer is not an agent of a city for purposes of the ante litem notice. “Reference of the claim to an insurance carrier which undertook an investigation and settlement, can not work a waiver of the notice, an estoppel to assert lack thereof, or toll the time for giving it.” Whether the insurer reaches a settlement agreement with the claimant plays no role in determining the need for the statutory ante litem notice.

Even if a city official had expressly waived the requirement, this waiver would have been ineffectual. “It is well established that governing officials cannot waive statutory ante litem notice requirements.”

Decided October 15, 1999.

Strauss & Walker, John T. Strauss, for appellants.

Cobb, Grabbe, Spillers & Irwin, R. Chris Irwin, for appellees.

3. Evans argues that because USF&G, on behalf of the city, reached and partially consummated the interim settlement agreement with her, the city was estopped from asserting the “lack of ante litem notice” defense. But an insurer is not the agent of a city for the purpose of ante litem notice. Only the city’s governing body, i.e., the city council, may act so as to estop the city, and then only if not acting ultra vires. Because a city council has no right to waive the requirements of OCGA § 36-33-5, a city cannot be estopped from raising the defense of no ante litem notice.

The court did not err in granting summary judgment to the city.

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.

       See OCGA § 36-33-5 (b).

        City of Chamblee v. Maxwell, 264 Ga. 635, 636 (452 SE2d 488) (1994); Gillingwater v. City of Valdosta, 177 Ga. App. 241 (1) (339 SE2d 287) (1985).

        City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1, 3 (1) (421 SE2d 113) (1992).

       (Citations and punctuation omitted.) Clark v. City of Smyrna, 212 Ga. App. 598, 599 (1) (442 SE2d 461) (1994).

        City of Calhoun v. Holland, 222 Ga. 817 (152 SE2d 752) (1966).

       Evans does not argue that USF&G’s letter to her confirming the partial settlement agreement constituted the ante litem notice, nor could she, as this writing was not from her but to her from USF&G. See Clark, supra, 212 Ga. App. at 599 (1) (“documents prepared by city employees and its insurer were not presented to the city by appellant as required by the statute and thus cannot constitute proper ante litem notice”); Brown v. City of Chamblee, 211 Ga. App. 145, 148 (2) (438 SE2d 396) (1993) (claimant must give notice to the city, not vice versa); Chiles v. City of Smyrna, 146 Ga. App. 260, 262 (3) (246 SE2d 117) (1978) (“the notice required in [OCGA § 36-33-5] must be given by the person injured and having the claim”). Moreover, notice to a city’s insurance company cannot suffice as the notice required by OCGA § 36-33-5. City of LaGrange v. USAA Ins. Co., 211 Ga. App. 19, 20 (1) (438 SE2d 137) (1993); Allen v. City of Macon, 118 Ga. App. 88, 89 (162 SE2d 783) (1968).

       See Campbell v. City of Atlanta, 117 Ga. App. 824 (162 SE2d 213) (1968).

        City of LaGrange, supra, 211 Ga. App. at 21 (1).

       (Citations and punctuation omitted.) Clark, supra, 212 Ga. App. at 599 (2).

       Id.; see OCGA § 1-3-7; City of Calhoun, supra, 222 Ga. at 819; City of LaGrange, supra, 211 Ga. App. at 21 (2).

       Id. at 21 (1).

        Allright Auto Parks v. City of Atlanta, 257 Ga. 315, 316 (1) (357 SE2d 797) (1987); Corey Outdoor Advertising v. Bd. of Zoning &e. of Atlanta, 254 Ga. 221, 224 (3) (327 SE2d 178) (1985); City of Calhoun, supra, 222 Ga. at 819; see OCGA § 45-6-5.

         City of Calhoun, supra, 222 Ga. at 819; City of LaGrange, supra, 211 Ga. App. at 21 (2); see Gillingwater, supra, 177 Ga. App. at 241 (2).


text:
    A99A1309.
    STEWART v. THE STATE.
    (523 SE2d 592)
   Phipps, Judge.

Does one impersonate a peace officer when, driving a newer model Ford Crown Victoria (a car commonly used by police), he pulls up to the bumper of a speeding car at 1:30 in the morning, shines his bright lights into the car, pulls the car over by activating a siren and flashing blue lights, approaches the driver’s window of the car and asks the driver for his driver’s license, insurance and registration? A jury answered, Wes.” Freddie Stewart appeals, challenging the sufficiency of the evidence for the jury’s verdict and the trial court’s denial of his motion for a directed verdict.

Stewart arrived at Nick’s Big Apple Club on a Saturday night just before closing time. Stewart drank one or two beers and purchased a table dance from one of the topless dancers, Sandra Patrella. Stewart wanted Patrella to dance another, but time did not permit. When Patrella left the club, Stewart secretly followed her. He watched her gas her car, take a friend home and then proceed toward her own home in another town. The car Stewart stopped was also following Patrella. It was driven by her boyfriend, who told Stewart he was following her home. Patrella noticed the stop and went back and asked Stewart “what was going on.” He did not answer. Stewart did not attempt to arrest the boyfriend, but accused him of drinking, told him to go back to the town they had left, and that he would take Patrella home. Patrella told Stewart she wanted her boyfriend to take her home. Nevertheless, Stewart followed the two of them to Patrella’s house.

The standard of review is the same for the sufficiency of evidence for a conviction and the denial of a motion for directed verdict of acquittal. It is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” One impersonates a peace officer if he (a) falsely holds himself out as a peace officer (b) with intent to mislead another into believing that he is actually such officer.

Stewart points out that he did not say he was a peace officer, he did not wear a uniform, he did not display a badge, his car was not marked as a police car, his blue lights were unplugged when he was arrested the next day, and there was no evidence that he carried a weapon. He asserts that testimony he used blue lights was the only possible evidence that he held himself out as a peace officer and claims even that must be rejected because the jury acquitted him on a second charge for using blue lights. Stewart also asserts that he had the right to make a citizen’s arrest because the car he stopped was traveling erratically and going 85 mph.

Although Stewart did not expressly state he was a peace officer, when the evidence is considered in the light most favorable to the prosecution, it was sufficient to overcome a motion for a directed verdict and to support a conviction. The sufficiency does not depend upon whether Stewart used flashing blue lights or flashing white lights, as he testified. Also, because Georgia no longer recognizes the inconsistent verdict rule, we cannot infer that the jury did not believe Stewart used blue lights. Finally, without addressing whether Stewart could have made a valid citizen’s arrest, the question of whether he was actually attempting to do so and not impersonating an officer was a matter for the jury to determine.

Decided October 15, 1999.

Salter, Shook & Craig, Mitchell M. Shook, for appellant.

J. Thomas Durden, Jr., District Attorney, for appellee.

After reviewing the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found Stewart guilty beyond a reasonable doubt of the crime for which he was convicted. The trial court did not err in denying the motion for a directed verdict.

Judgment affirmed.

Barnes and Ellington, JJ, concur.

        Hogan v. State, 210 Ga. App. 122, 123 (1) (435 SE2d 494) (1993).

       (Citation, punctuation and emphasis omitted.) Id.; Gray v. State, 213 Ga. App. 507, 509 (1) (445 SE2d 328) (1994).

       See OCGA § 16-10-23.

        Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986); Kimble v. State, 236 Ga. App. 391, 393 (1) (512 SE2d 306) (1999).

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


text:
    A99A1438.
    GREEN v. THE STATE.
    (523 SE2d 581)
   Miller, Judge.

A jury convicted Terry Green of possession of cocaine, possession of tools for the commission of a crime, and conspiracy to commit burglary. On appeal he asserts several enumerations of error including the denial of his motion to suppress the evidence. We affirm.

1. Green claims that the court should have suppressed evidence found in a vehicle in which he was a passenger because the police lacked reasonable suspicion to stop the vehicle. Because the parties have stipulated to the facts, our review is de novo.

An officer may conduct a brief investigative stop of a vehicle if justified by specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. To determine the existence of reasonable suspicion, we look at the totality of the circumstances.

The unchallenged testimony of the officer at the scene was that at about 3:15 a.m., she noticed two U-haul trucks backed into the parking lot of a restaurant located next to a Wal-mart. One of the trucks had its lights off, and she observed several men walking around. She knew that the restaurant was closed and that the last employees left around 1:30 a.m. Mindful that there had been other burglaries in the area, she called a 911 dispatcher who informed her that the emergency contact for the restaurant stated that no one should be at the building. When she decided to approach the trucks to investigate, they drove away and she followed, eventually stopping them.

Because the property owner informed police no one should be at the premises, the totality of the circumstances gave the officer reasonable suspicion to authorize a brief stop of the vehicles. The court did not err in denying Green’s motion to suppress.

2. Green contends that the trial court erred by holding a hearing on preliminary matters in his absence and in the absence of his counsel. A motions hearing for Green and his co-defendants was held at 9:00 a.m., and Green did not appear. The court issued a bench warrant for Green and proceeded to hear motions from the co-defendants. Around 1:15 p.m., Green and his counsel appeared. Although a defendant has a constitutional right to be present at all stages of his trial, Green’s absence was voluntary and due to his own failure to appear. Once trial counsel and Green appeared, the court explained its rulings on the co-defendants’ motions, noted that it had ruled on Green’s motions in the earlier hearing, and offered to reiterate those rulings. Counsel declined the offer and did not object to the hearing on the co-defendants’ motions held in her and her client’s absence. By going forward with the proceedings without objection, Green and his trial counsel acquiesced to the hearing and cannot complain on appeal.

3. In two enumerations, Green claims that the trial court erred in allowing the State to use a peremptory strike on an African-American venireperson and that the court removed itself from a position of impartiality by providing a race-neutral reason for the strike. To evaluate a Batson motion on a peremptory strike, the trial court follows a three-step process.

The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent.

We defer to the trial court’s findings as to whether the opponent of the strike has met the burden of persuasion and affirm them unless clearly erroneous.

After Green raised a Batson objection, the court did not rule on whether Green made a prima facie showing of discrimination but instead directly asked for the State’s race-neutral explanation for the strike. The State explained that the juror “had some very big problems with a police officer back in the early seventies. . . . She herself was arrested, she was an activist and she witnessed some African-Americans being arrested.” The State further explained that the juror could not be fair and impartial because of her political activity, that the strike had nothing to do with her being African-American, and that “[i]f she was white and she had the same viewpoints and was politically active [he] would have the same problem with her serving on the jury . . . whatever color she is.”

The court denied the motion, ruling that the State met its burden of showing race-neutral reasons for the strike. The contention that the court removed itself from a position of impartiality is without merit. The court simply reiterated the reasons given by the State for the strike. The court’s ruling is supported by evidence and is not clearly erroneous.

4. The indictment charging Green with the offense of conspiracy to commit burglary specifically alleged that Green “conspire [d] to commit the crime of [b]urglary of Wal-mart on Fairburn Road, and did go to the vicinity of Wal-mart with bolt cutters. . . .” But the court charged the jury that “[i]f you find that either or both of these defendants possessed tools for the commission of a crime that is an overt act upon which you would be authorized to convict as to the offense of conspiracy to commit burglary.” Green contends that because the indictment alleged the offense with specificity, the court was obligated to charge the jury on the specific tool used and the specific overt act.

Absent a remedial instruction, reversible error occurs if the jury charge recites the statutory definition of a crime (which informs the jury the crime may be committed in various manners) when the indictment alleges that the crime occurred in a specific way. If the jury charge is not cured, the conviction may be defective because of a fatal variance between the proof at trial and the indictment. Here the evidence shows that the judge provided a remedial instruction by stating that the burden of proof is upon the State to prove every material allegation in the indictment. The court also provided the jury with the indictment for review during deliberation. The defect was cured.

5. Green contends that the court should have excluded his tape-recorded interrogation because it contained hearsay statements made by detectives during questioning. Before playing the tape for the jury, the court redacted portions it considered to be inadmissible.

Even though the detectives’ statements were hearsay, the failure to redact these statements is not reversible error for two reasons. First, both detectives who questioned Green were available for cross-examination, so his right to confront the witnesses was not foreclosed. Second, the court gave an in-depth curative instruction informing the jury that the detectives’ statements were hearsay and could not be considered as evidence of the truth. The court did not err in admitting the tape.

6. After deliberations began, the jury requested a definition of the word “tacitly” as given in the jury charge. The court provided the jury with the definition of “tacit” from Webster’s dictionary. Green’s claim that this is error is without merit. It is the court’s duty to instruct on any point the jury requests and to do it in plain, clear language. “Tacitly” is not defined in the charge, and the court did not abuse its discretion in providing the definition.

7. A juror admitted that after the trial began, she drove to the area where the U-haul trucks were observed on the night of Green’s arrest. Green contends he should be granted a new trial because the triál court allowed the juror to remain on the jury.

Jurors generally cannot impeach their own verdict, and to set aside a jury verdict because of irregular juror conduct we must conclude that the conduct was so prejudicial that the verdict is inherently lacking in due process. Bobo v. State reversed a conviction because two jurors visited the crime scene and attempted to sway other jurors by discussing their observations. The conduct in the present case does not rise to that level. The juror stated that her visit to the scene did not “clear anything up” for her and that she told the other jurors that she “went by and it didn’t help.” She was then asked if she could base her decision only on what she had seen and heard in the courtroom, and she responded affirmatively. The juror’s conduct was not so prejudicial to deprive Green of due process.

8. The claim that one juror admitted the verdict was not hers when polled is without merit. The court asked the juror, “was this your verdict when it was reached in the jury room,” to which the juror responded, “[n]o, I had to review the law that you gave us[,] . . . [go] over the evidence . . . [a]nd I came to that conclusion.” The juror was simply stating that she made her decision after deliberating, not that she made her decision after the verdict form was returned. Moreover, Green did not object or otherwise raise the issue during the polling of the juror or at the close of polling of all of the jurors, thereby waiving any objection to the court’s reception of the verdict.

9. Finally, Green contends that the trial court erred in failing to merge the possession of tools for commission of a crime conviction with the conspiracy to commit burglary conviction. “Under Georgia law, offenses merge and multiple punishment is prohibited if one offense is included in the other as a matter of law or fact.”

The elements of the crime of conspiracy are an agreement between two or more persons to commit a crime and an overt act by any one of those persons to effect the object of the conspiracy. The elements of possession of tools for the commission of a crime are the possession of such tools and the intent to use them to commit a crime. Neither crime is included in the other by definition, and they do not merge as a matter of law.

But, Green’s indictment alleged both offenses with specificity. The conspiracy count alleged that Green “conspire [d] to commit the crime of [b]urglary of Wal-mart on Fairburn Road, and did go to the vicinity of Wal-mart with bolt cutters . . .,” while the count on possession of tools for commission of a crime alleged that Green “did unlawfully have in [his] possession bolt cutters, a tool commonly used in the commission of burglary with intent to make use of them in a burglary. . . .” To prove the conspiracy as alleged in the indictment, the State had to prove that Green was in the possession of the bolt cutters with criminal intent, which is the same proof needed for the possession of tools offense. Thus, one conviction is included in the other. The possession of tools for the commission of a crime conviction merges with the conspiracy to commit burglary conviction as a matter of fact. The court erred in failing to merge the two convictions and erred in sentencing Green on the conviction for possession of tools for the commission of a crime.

Decided October 15, 1999.

Edwards & McLeod, Jennifer McLeod, James M. Money, for appellant.

David McDade, District Attorney, James E. Barker, Assistant District Attorney, for appellee.

Judgment affirmed as to convictions for possession of cocaine and conspiracy to commit burglary. Judgment reversed and sentence vacated as to conviction for possession of tools for the commission of a crime.

Smith and Eldridge, JJ., concur.

        Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

        Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889) (1968).

        Gonzalez v. State, 235 Ga. App. 253, 254 (509 SE2d 144) (1998); Evans v. State, 183 Ga. App. 436, 438 (2) (359 SE2d 174) (1987).

        Pennie v. State, 271 Ga. 419, 420 (2) (520 SE2d 448) (1999); Parker v. State, 220 Ga. App. 303, 311 (12) (469 SE2d 410) (1996).

       See, e.g., id. at 312 (12); see generally Harris v. State, 234 Ga. App. 126, 128 (2) (505 SE2d 49) (1998) (this court will not consider on appeal issues not raised and preserved in the trial court).

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

        Chandler v. State, 266 Ga. 509, 510 (467 SE2d 562) (1996).

        Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996); Curry v. State, 238 Ga. App. 511, 516 (2) (b) (519 SE2d 269) (1999).

       See Dennis v. State, 238 Ga. App. 343, 346 (4) (518 SE2d 745) (1999); Haynes v. State, 234 Ga. App. 272, 276 (5) (507 SE2d 151) (1998).

        Hendrix v. State, 230 Ga. App. 604, 606 (2) (497 SE2d 236) (1998).

        Gilliam v. State, 237 Ga. App. 476, 477 (1) (517 SE2d 348) (1999); Hunley v. State, 227 Ga. App. 234-235 (1) (488 SE2d 716) (1997); Levin v. State, 222 Ga. App. 123, 126-127 (6) (473 SE2d 582) (1996).

       See Hendrix, supra, 230 Ga. App. at 606 (2) (jury instruction confining elements to the material allegations of the indictment cured defect); see also Green v. State, 221 Ga. App. 694, 695 (2) (472 SE2d 457) (1996) (even though jury charge included that crime may be committed in more than one manner, the jury was given and wrote verdict on a copy of the indictment which alleged crime with specificity).

       Compare Watson v. State, 199 Ga. App. 825, 826 (1) (406 SE2d 509) (1991) (court carefully admonished jury that what others told officers is hearsay); cf. Huckeba v. State, 217 Ga. App. 472, 476-477 (5) (458 SE2d 131) (1995) (statements of officer were part of interrogation technique to elicit a response from defendant).

        Kimmel v. State, 261 Ga. 332, 334-335 (3) (404 SE2d 436) (1991).

       Compare Levin, supra, 222 Ga. App. at 127-128 (7).

        Satterwhite v. State, 235 Ga. App. 687, 688 (509 SE2d 97) (1998).

        Butler v. State, 270 Ga. 441, 444 (2) (511 SE2d 180) (1999).

       254 Ga. 146 (1) (327 SE2d 208) (1985).

       See Butler, supra, 270 Ga. at 445 (2); Brooks v. State, 265 Ga. 548, 550 (5) (458 SE2d 349) (1995).

       See Kimmel, supra, 261 Ga. at 335 (4); Jackson v. State, 184 Ga. App. 123 (361 SE2d 14) (1987).

       (Citation omitted.) Wells v. State, 222 Ga. App. 587, 588 (3) (474 SE2d 764) (1996); see OCGA §§ 16-1-6 (1); 16-1-7 (a) (1).

       See OCGA § 16-4-8.

       See OCGA § 16-7-20.

       See OCGA § 16-1-7.

       Compare Hanifa v. State, 269 Ga. 797, 798, n. 2 (505 SE2d 731) (1998); Wells, supra, 222 Ga. App. at 588-589 (3).