text:
    A93A2049.
    LINLEY v. THE STATE.
    (436 SE2d 688)
   Blackburn, Judge.

The appellant, Michael Linley, was convicted of three counts of sexual battery and one count of simple battery, with all offenses involving three female students at the high school where he taught. His sole contention on appeal is that the trial court erred in denying his motion for mistrial based upon the State’s placement of his character in issue.

All of the acts in question occurred on school premises when Linley had the victims isolated. At trial, one student testified that after she had taken some papers to the office for him, Linley pushed her into an empty classroom, kissed her on the lips, fondled her breasts, and put his hand down her pants and touched her vagina. Another student testified that as she stood next to his desk reviewing a school assignment, Linley put his hand on her leg and rubbed it up and down. On another occasion, Linley fondled her breasts after she had taken some papers to the office for him. The third victim told how, as she helped him grade papers on the last day of school, Linley kissed her, touched her breasts and vagina, and asked her if she would like to be his girl friend. The State also presented the testimony of one of Linley’s former students from another high school, regarding a similar incident in 1981.

During closing argument, the district attorney remarked about Linley’s position of authority and influence over students, and how unfortunate the situation was that not only had violations of the State’s criminal laws occurred, but also a breach of trust. The district attorney then referred to the three victims and the former student who testified about the similar incident, and reiterated that “it’s unfortunate when a teacher abuses his position such as this.”

At that point, defense counsel moved for mistrial on the grounds that the district attorney’s closing argument regarding breach of trust placed Linley’s character in issue. The trial court denied the motion, but immediately gave curative instructions to the jury, emphasizing that the trial concerned only the offenses alleged in the accusation, and that the defendant’s position as teacher should be considered only so far as it pertained to those charges. The court also instructed the district attorney to confine his closing remarks to the acts for which Linley was charged and not to any aspects of the teaching profession, except to the extent it pertained to the charged offenses.

“Where improper statements have been made by counsel in the presence of the jury, it is the duty of the judge to endeavor to remove from the minds of the jury improper impressions made by unfair argument; and in determining the proper method the judge is vested with a sound discretion, and his rulings thereon will not require a new trial, unless it manifestly appears that his discretion was abused.” Hicks v. State, 196 Ga. 671, 673-674 (27 SE2d 307) (1943).

In the instant case, as noted by the trial court, inasmuch as the charges involved a school teacher perpetrating criminal acts upon several of his students, some element of an abuse of a position of trust would unavoidably be injected by the evidence proving the offenses. The trial court’s instructions to the jury to consider Linley’s position as teacher only to the extent that it pertained to the charges against him, and instruction to the district attorney to confine his remarks to such, demonstrated a commendable attempt by the trial court to take that extra step to insure that the defendant received a fair trial and was sufficient to render the comments harmless if they were improper to begin with, which they were not, as they did not place the defendant’s character into evidence. Accordingly, we find no abuse of discretion in the trial court’s denial of the motion for mistrial.

Decided September 23, 1993

Reconsideration denied October 12, 1993

Mundy & Gammage, John S. Husser, Theodore G. Frankel, for appellant.

George C. Turner, Jr., District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A93A1056.
    HORN et al. v. FOODMAX OF GEORGIA, INC.
    (437 SE2d 336)
   Johnson, Judge.

Nancy Horn brought this action against Foodmax of Georgia, Inc. seeking damages for injuries she allegedly sustained when she slipped and fell on a foreign substance while shopping in a Foodmax store. Her husband, Edward Horn, seeks damages for loss of consortium. The trial court granted summary judgment to Foodmax and the Horns appeal.

On the day of the accident, Mrs. Horn was walking toward the check-out with three small items in her hand. She watched where she was going and her eye “picked up” a small puddle of clear liquid on the floor. Before she had a chance to stop, she slipped, fell and was injured. Mrs. Horn testified on deposition that there were no store employees in or around the area when she fell. The closest store employee was Carolyn Minton, who was standing at a demonstration table approximately fifteen feet and two aisles away when Mrs. Horn fell. Minton saw Mrs. Horn fall via her peripheral vision. When Mrs. Horn fell, Minton and her supervisor, who had apparently been about six more feet away, went over to assist her and summoned an ambulance. They also inspected the floor around her several times but did not find any foreign substance. Minton had not seen any substance on the floor prior to the fall either. It was never determined what the alleged substance was. Minton testified that the floors were inspected and cleaned every three to four hours by other employees and were cleaned immediately if problems were discovered.

1. The Horns contend that the evidence was sufficient to show that genuine issues of material fact remained as to the proprietor’s knowledge of the dangerous condition. We disagree.

“It is well-settled that in order to establish a proprietor’s liability for a slip and fall attributable to a foreign substance on the floor, the plaintiff must show that the defendant had actual or constructive knowledge of the foreign substance and that the plaintiff was without knowledge of the substance or, for some reason attributable to the defendant, was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).” Jester v. Ingles Market, 206 Ga. App. 327, 328 (425 SE2d 323) (1992). The Horns do not claim that the proprietor had actual knowledge of the presence of the foreign substance on the floor. Instead, they argue that Foodmax had constructive knowledge of its presence.

In order to establish constructive knowledge, the plaintiff must show: 1) that a foreign substance had been on the premises for such a time that ordinary diligence by the defendant should have effected its discovery, or 2) that an employee of the defendant was in the immediate area of the hazardous condition and could have easily seen the substance. Jester, supra at 328. The Horns contend that the unidentified liquid was on the floor for a long time and that had Foodmax employees exercised reasonable care, they would have discovered it. However, there is no evidence whatsoever indicating how long the substance had been on the floor. Therefore, there is no evidence that ordinary diligence would have effected its discovery.

Furthermore, there is no evidence to show that a Foodmax employee was in the immediate area and could have easily seen the substance. Mrs. Horn’s own testimony was that there were no employees in the area at the time she fell. Other evidence in the record indicates that the closest employee was approximately fifteen feet and two aisles away when the accident occurred. The evidence also indicates that the substance could not even be seen easily at a very close distance. Mrs. Horn testified that the substance was small and clear and that, although she was looking at the floor as she walked, she did not see the substance until it was too late for her to avoid stepping in it. We therefore conclude that the Horns have failed to show the existence of a genuine issue of fact as to Foodmax’s constructive knowledge of any foreign substance on the floor.

Decided October 12, 1993.

Copeland, Thomas & Haugabrook, Vincent D. Hyman, for appellants.

Hodges, Erwin, Hedrick & Kraselsky, William H. Hedrick, David W. Orlowski, for appellee.

2. In their second enumeration of error, the Horns argue that the court erred in granting summary judgment because issues involving negligence, diligence and the exercise of ordinary care are generally left within the purview of the jury. This is a correct statement of law. However, as discussed in Division 1 above, “no question of fact exists from which a jury could infer any failure on appellee’s part to exercise reasonable care to keep its store in safe condition. [Cit.]” Bright v. Food Giant, 177 Ga. App. 641, 642 (340 SE2d 272) (1986). The Horns’ claim that Foodmax employees failed to render aid has absolutely no support in the record and does not warrant further discussion. Therefore, in the absence of any genuine issue of material fact, we find that the trial court correctly granted summary judgment in favor of Food-max. Consequently, since Mr. Horn’s right to recover for loss of consortium is derivative of his wife’s claim, and since she cannot recover, he likewise cannot recover. Stone Mountain Mem. Assn. v. Herrington, 225 Ga. 746, 749 (3) (171 SE2d 521) (1969). See Grogan v. Bennett, 208 Ga. App. 102, 103 (6) (430 SE2d 94) (1993).

3. In their third enumeration of error, the Horns argue that the party opposing the motion for summary judgment must be given the benefit of all reasonable doubts and favorable inferences. We agree. However, even giving the Horns the benefit of all reasonable doubts and all favorable inferences, which we in fact did in Division 1 above, we find no error in the trial court’s decision granting summary judgment.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       In her deposition, Mrs. Horn repeatedly used the word “small” to describe the puddle. She never gave the dimensions verbally, although she apparently drew a picture indicating its size. The drawing, however, is not included in the record. The only evidence we have of the size of the puddle is Foodmax’s characterization (based on the drawing) that the substance was approximately three inches in diameter.


text:
    A93A1101.
    BANKHEAD et al. v. MOSS.
    (436 SE2d 723)
   Johnson, Judge.

Gerald and Pauline Bankhead appeal the trial court’s order awarding attorney fees and expenses of litigation to Randy Moss pursuant to OCGA § 9-15-14. The Bankheads sued Moss and Swat, Inc., asserting various claims arising out of the Bankheads’ purchase of a home from Moss for which Swat provided a termite inspection report prior to closing. The complaint alleges that Moss fraudulently concealed termite infestation and damage about which he knew or should have known and that he knew of material misrepresentations in the inspection report prepared by Swat. The trial court granted Moss’ motion for summary judgment, and this court affirmed that ruling in an unpublished decision, finding there was no evidence Moss had the alleged knowledge. Bankhead v. Swat, 204 Ga. App. XXX (1992). After a hearing, the trial court granted Moss’ motion under OCGA § 9-15-14 (a) and (b) for attorney fees and expenses incurred in defending the action prior to appeal and for “expenses in attorney fees incurred as a result of the appeal.”

1. In four enumerations of error, the Bankheads contend the trial court erred in awarding Moss attorney fees and expenses under OCGA § 9-15-14 because their claim against him had some factual merit. Specifically, they contend that prior to filing suit they were aware of deposition testimony of the principal of Swat, Michael Dunn, in another case against Swat and of certain statements of neighbors which led them to believe Moss had knowledge of the termite infestation. They contend that while much of this evidence was deemed inadmissible at the summary judgment stage, it provided justification for their filing suit against Moss.

OCGA § 9-15-14 (a) provides for a mandatory award of attorney fees and expenses where a party asserts a claim as to which “there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim.” The standard of review for this section is the “any evidence” rule. Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987). OCGA § 9-15-14 (b) provides for a discretionary award of fees and expenses if the court “finds that an attorney or party brought ... an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct. . . .” The standard of review for this section is the “abuse of discretion” rule. Haggard, supra at 527 (4) (c). The trial court awarded Moss attorney fees and expenses, finding there was no evidence that he knew of any infestation or damage to the premises or that the termite report contained misrepresentations of true facts. The court thus found that the charge of concealment “lacked any facts that any court would accept to allow the [Bankheads] to maintain” suit against Moss.

The Bankheads point to their knowledge about Dunn’s testimony in the earlier case against Swat indicating that Moss had seen termites at the back sliding glass door and that the termite report incorrectly stated that the property was not covered under a treatment contract. They also rely on a statement by a neighbor that he and Moss had discussed termites being in their backyards and statements by another neighbor that Moss’ wife had mentioned having termites in the house. As this court noted, however, in its previous opinion, the fact that termites swarmed around the yard and once crawled along the sliding glass door does not demonstrate that Moss had actual knowledge that termites had infested or damaged the house and without such knowledge Moss could not be held liable for concealment of termite damage. The statement by the neighbor that Moss’ wife had mentioned having termites was hearsay and thus provided no competent evidence of actual knowledge on Moss’ part.

Decided October 12, 1993.

Harry A. Osborne, for appellants.

Albert B. Wallace, Stephen B. Wallace II, Drew, Eckl & Farnham, B. Holland Pritchard, for appellee.

Finally, even assuming the termite report mischaracterized the contractual relationship between Moss and Swat as not being a “treatment contract,” as this court noted in its earlier opinion, this statement does not establish the Bankheads’ claim against Moss for concealment of termite infestation or damage.

The Bankheads had no basis for an action against Moss and they could have made this determination with a minimum amount of diligence. See Haggard, supra at 527 (4) (b). The record thus supports the trial court’s award under both the “any evidence” standard and the “abuse of discretion” standard. Accordingly, we affirm that portion of the order awarding attorney fees and expenses of litigation incurred in defending the action prior to appeal.

2. Bankhead also contends the trial court erred in awarding Moss expenses pursuant to OCGA § 9-15-14 for attorney fees incurred in defending the earlier appeal. This court has previously held that OCGA § 9-15-14 does not authorize a trial court to award attorney fees and expenses of litigation for proceedings before the appellate courts of this state. Dept. of Transp. v. Franco’s Pizza &c., 200 Ga. App. 723, 728 (5) (409 SE2d 281) (1991). We therefore reverse this portion of the award and remand to the trial court to enter a revised award in accordance with this opinion.

Judgment affirmed in part, reversed in part, and case remanded with direction.

McMurray, P. J., and Blackburn, J., concur.


text:
    A93A1321.
    FOODMAX, INC. v. TERRY.
    (436 SE2d 725)
   Johnson, Judge.

Catherine Terry brought this action against Foodmax, Inc. for injuries she allegedly sustained when she slipped and fell on a foreign substance at a Foodmax supermarket. The trial court denied Food-max’s motion for summary judgment and we granted Foodmax’s application for interlocutory appeal.

Reviewing the evidence in favor of Terry as the nonmovant on a motion for summary judgment, the record reveals that Terry was walking down an aisle of the Foodmax store searching the shelves for some peas when she slipped and fell on two small puddles of a dark substance resembling cola. Terry testified in her deposition that her husband was pushing a grocery cart and she was walking at least five feet behind him. She stated that, after falling, she saw a dark substance on the floor that had dried and was sticky. She stated that the floor of the store was a light color and that had she been looking at the floor she would have seen the substance; however, she “was looking for what she was getting.”

By affidavit, Terry Slone, the store manager, and Mary Stell, a cashier, testified that Foodmax had a policy whereby all store employees were required to visually inspect the floors for any foreign substances and to remove and clean any such substances. Slone stated that he had conducted a visual inspection of the area where Terry fell approximately 20 minutes before the fall and that no foreign substances were present at that time. Stell stated that she had inspected the area where Terry fell approximately five minutes before the fall and saw no foreign substance. Stell further testified that at the time of the fall she and another employee were walking five to ten feet behind Terry and could not have seen the foreign substance on the floor because Terry was blocking their view. Both Slone and Stell conceded that after the fall they saw a small puddle of brown liquid near where Terry fell. Slone also stated that the substance appeared to be cola.

1. Foodmax argues that summary judgment should have been granted because no evidence exists that it had knowledge of the foreign substance on the floor. In order to establish a proprietor’s liability for a slip and fall attributable to a foreign substance on the floor, the customer must show the proprietor knew of the foreign substance or should have known of it had ordinary care been exercised. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). The inquiry here must begin with whether Foodmax had constructive knowledge of the substance since there is no evidence it had actual knowledge of the presence of the foreign substance on the floor. Constructive knowledge may be established by showing that an employee of the proprietor was in the immediate area of the hazardous condition and could have easily seen the substance or that a foreign substance remained on the floor for such a time that ordinary diligence by the proprietor should have effected its discovery. Jester v. Ingles Market, 206 Ga. App. 327, 328 (425 SE2d 323) (1992). Foodmax negated the first theory by which constructive knowledge may be shown since it is undisputed that the only two employees near the affected area had their view of the area blocked by the plaintiff. See Queen v. Kroger Co., 191 Ga. App. 249, 250 (1) (381 SE2d 413) (1989).

As to the second theory, a lack of actionable constructive knowledge may be established by presenting conclusive evidence that a customary inspection and cleaning program was in place and had been complied with on the day in question. Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428, 430 (1) (408 SE2d 443) (1991). Here, the direct and undisputed testimony of two Foodmax employees established that the floor in the immediate area of Terry’s fall had been inspected and contained no foreign substance twenty minutes prior to the fall and five minutes prior to the fall. “Where it appears a foreign object had not been present for more than 10 to 15 minutes, the allegations show no actionable negligence on the part of the proprietor in failing to discover it.” (Citation and punctuation omitted.) Mazur v. Food Giant, 183 Ga. App. 453, 454 (1) (359 SE2d 178) (1987).

In Mazur, this court held that the fact that the frozen vegetables on which the plaintiff slipped had thawed was not inconsistent with testimony that the vegetables had not been present ten to fifteen minutes earlier. Id. at 454 (1). We likewise reject Terry’s contention that her testimony regarding the dry and sticky nature of the substance controverted the direct evidence in Stell’s affidavit that the substance was not there five minutes before the fall. The mere fact that the cola appeared to be dry and sticky is not inconsistent with the testimony that it was not present five minutes earlier since cola is by its very nature sticky and it could have appeared dry by virtue of having dust tracked in it or having been run over by a grocery cart. See also Queen, supra at 250 (1). “[A] fact shown by direct, uncontradicted, reasonable and unimpeached evidence cannot be disproved by circumstantial evidence consistent with such direct evidence.” (Citations and punctuation omitted.) Mazur, supra at 454 (1). Thus, the existence of multiple alternative reasons for the sticky nature of the spot distinguishes this case from those in which the nature or condition of the foreign substance raised a reasonable inference that sufficient time had passed since the substance appeared to charge the owner with constructive knowledge. See, e.g., Mitchell v. Rainey, 187 Ga. App. 510, 512 (370 SE2d 673) (1988) (melted ice cream). Accordingly, no issue of material fact with respect to Foodmax’s knowledge of the foreign substance was established and the trial court erred in denying its motion for summary judgment.

Decided October 12, 1993.

Long, Weinberg, Ansley & Wheeler, Paul L. Weisbecker, J. M. Hudgins IV, Stephen H. Sparwath, for appellant.

Word & Flinn, Gerald P. Word, for appellee.

2. Foodmax also alleges the trial court erred in finding a material question of fact existed as to whether Terry exercised ordinary care for her own safety. “In order to recover for a slip and fall resulting from a foreign substance . . . the plaintiff must also show that he was without knowledge of its presence. The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it. He must make use of all his senses in a reasonable measure amounting to ordinary care in discovering and avoiding those things that might cause hurt to him.” (Citations and punctuation omitted.) Smith v. Wal-Mart Stores, 199 Ga. App. 808, 810 (406 SE2d 234) (1991). Terry testified that the floor of the store was light and the substance was dark and that had she looked down she would have seen it. Because Terry could have seen the hazardous condition had she looked, we find that she failed to exercise ordinary care for her own safety. See Smith, supra at 810. We reject Terry’s contention that ordinary care did not require her to look where she was going because she was looking for what she wanted to purchase. Items of stock on shelves are not in themselves distractions and the plaintiff cannot rely on a “self-induced” distraction. Riggs v. Great Atlantic &c. Tea Co., 205 Ga. App. 608, 609-610 (423 SE2d 8) (1992). The trial court erred in denying Foodmax’s motion for summary judgment on this ground.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.


author: Cooper, Judge.

text:
    A93A1511.
    HAMMOCK v. THE STATE.
    (436 SE2d 571)
   Cooper, Judge.

Joe Dennis Hammock was tried before a jury and found guilty of terroristic threats, in violation of OCGA § 16-11-37. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict of guilt.

1. Investigating the possibility of an insanity defense, defense counsel arranged for Dr. Newkirk, a psychiatrist, to interview and evaluate appellant. Appellant made an incriminating statement during this interview. Thereafter, appellant made a pretrial motion in limine to prohibit Dr. Newkirk from relating this incriminating statement to the jury, arguing that he had not been advised of his Fifth Amendment right not to incriminate himself before he was interviewed. At a Jackson-Denno hearing, Dr. Newkirk testified that at the outset of the interview, she reminded Hammock that he had the right not to participate and need not respond to any questions, and that anything he said would be reported and possibly testified to by her in court. Other evidence demonstrated that appellant previously had been warned of his rights by the police and by the magistrate. This motion in limine was overruled and the psychiatrist testified at trial. The trial court’s evidentiary ruling that Hammock’s statement was made freely and voluntarily is enumerated as error.

“ ‘A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding.’ [Estelle v. Smith, 451 U. S. 454, 468 (101 SC 1866, 68 LE2d 359) (1981).] This statement logically leads to another proposition: if a defendant requests such an evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested. The defendant would have no Fifth Amendment privilege against the introduction of this psychiatric testimony by the prosecution. [Cits.]” Buchanan v. Kentucky, 483 U. S. 402, 422-423 (III A) (107 SC 2906, 97 LE2d 336) (1987). Since appellant “was given a full and proper Miranda warning at the time of his arrest,... it was not necessary to remind him (although the [psychiatrist] did so) that he need not answer any of the [psychiatrist’s] questions before the . . . psychiatric examination. A full, separate, second warning was not necessary. [Cit.]” Godfrey v. Francis, 251 Ga. 652, 657 (5) (308 SE2d 806) (1983). See also Moss v. State, 250 Ga. 368, 370 (297 SE2d 459) (1982) (Hill, C. J., concurring specially.) The trial court did not err in determining that appellant’s incriminating statement was freely and voluntarily made, even though the psychiatrist did not expressly warn him that anything he said could be used against him in a court of law.

2. As a special ground of his motion for new trial, appellant urged that trial counsel had failed to render reasonably effective assistance with respect to her handling of the psychiatric evaluation. The overruling of this motion is enumerated as error.

The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed unless that determination is clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986). “We have reviewed the transcript of that hearing (at which trial counsel testified [and defended her actions]) and find sufficient evidence to support the trial court’s conclusion that [appellant] failed to show ineffectiveness under the standards of Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). [Cit.]” Scott v. State, 263 Ga. 300 (2) (432 SE2d 107) (1993).

Decided October 12, 1993.

Carla J. Friend, for appellant.

Lewis R. Slaton, District Attorney, Robert A. Weathers, Barry I. Mortge, Assistant District Attorneys, for appellee.

3. Appellant enumerates the general grounds.

“A person commits the offense of a terroristic threat when he threatens to commit any crime of violence. OCGA § 16-11-37 [(a)].” Carver v. State, 258 Ga. 385, 386 (1) (369 SE2d 471) (1988). “ ‘[W]hen the communication of a threat is done to terrorize another, the crime of terroristic threats is complete[.]’ . . . [Cit.]” Wilson v. State, 151 Ga. App. 501, 503 (6) (260 SE2d 527) (1979). “Direct evidence that the threats were made for the purpose of terrorizing another is not necessary if the circumstances surrounding the threats are sufficient for a jury to find the threats were made for such a purpose. [Cit.]” Boone v. State, 155 Ga. App. 937, 939 (2) (274 SE2d 49) (1980). The victim, appellant’s uncle, held various assets in trust for the use of appellant and the evidence revealed that the two quarreled frequently over money. Appellant had previously shot his uncle in the shoulder with a shotgun. Appellant admitted to the psychiatrist that he had anonymously mailed his uncle an envelope with a spent shotgun shell in it. From this evidence, a rational trier of fact could reasonably have found appellant guilty of committing a terroristic threat beyond a reasonable doubt. The enumeration of the general grounds is without merit.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A1658.
    HOWARD v. BURCH.
    (436 SE2d 573)
   Cooper, Judge.

Appellant, an inmate, filed a pro se action denominated a “tort action” against appellee, a correctional officer at the facility where appellant was housed. Appellant alleged in the action that appellee was liable for libel and slander for writing false disciplinary reports. The case was set for a hearing on a November 1992 non-jury calendar, but due to the volume of cases on that calendar, appellant’s case was tentatively rescheduled for January 1993. Appellee subsequently moved to dismiss the complaint on the grounds that appellee was immune from suit pursuant to the Georgia Tort Claims Act, OCGA § 50-21-20 et seq. Appellant did not respond to the motion, and the court entered an order granting the motion to dismiss on March 29, 1993. The trial judge found that appellee was an employee of the Georgia Department of Corrections, that his actions were related to the performance of his official duties and that appellant’s action was barred by the Georgia Tort Claims Act. Appellant filed a notice of appeal from “the decision of this court ... in his refusal to hear this case and hold a hearing and render a decision in the above styled case. . . .”

Decided October 12, 1993.

Edgar W. Howard, pro se.

Michael J. Bowers, Attorney General, Neal B. Childers, Assistant Attorney General, for appellee.

Although appellant’s notice of appeal is deficient in failing to specify the order from which the appeal is taken, we will give appellant as a pro se litigant, the benefit of the doubt and treat his appeal as being taken from the March 29, 1993 order dismissing his case. Consequently, appellee’s request that the appeal be dismissed is denied.

The Georgia Tort Claims Act “provides for a waiver of the state’s sovereign immunity for ‘torts of state officers and employees while acting within the scope of their official duties or employment,’ OCGA § 50-21-23 (a), unless the alleged tortious act falls within one of the exceptions set forth in OCGA § 50-21-24. The instant claim[s] [are] so excluded, as the Act provides that the state will have ‘no liability for losses resulting from . . . [libel and slander].’ OCGA § 50-21-24 (7).” Collier v. Whitworth, 205 Ga. App. 758, 759 (423 SE2d 440) (1992). Accordingly, we find no error with the trial court’s dismissal of appellant’s action.

Appellant’s argument that the trial court should have held a hearing on appellee’s motion to dismiss is without merit since Rule 6.3 of the Uniform Superior Court Rules does not mandate that such a hearing be held. Datz v. Brinson, 208 Ga. App. 455, 456 (4) (430 SE2d 823) (1993).

Similarly, appellant’s contention that the trial judge failed to recuse himself presents nothing for review since the record does not reflect that appellant made a request for recusal.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


author: Birdsong, Presiding Judge. Pope, Chief Judge,

text:
    A93A1576.
    DATZ v. THE STATE.
    (436 SE2d 506)
   Birdsong, Presiding Judge.

Richard Ronald Datz, Jr. a/k/a Richard Datz a/k/a Ronald Richard Datz appeals his conviction of possession of a firearm by a convicted felon and the sentence. Held:

1. Appellant asserts evidence insufficiency. A rifle and ammunition for the gun were found in the trunk of appellant’s wife’s car; ammunition for the weapon also was found in two locations in appellant’s house. The police evidence custodian testified appellant contacted him numerous times, by phone and in person, seeking return of “his AR-15 rifle.” Davis v. State, 146 Ga. App. 629 (247 SE2d 210) is distinguishable from the facts of this case. Compare Chambers v. State, 162 Ga. App. 722 (293 SE2d 20). The jury could reasonably find that the evidence excluded every reasonable hypothesis except that of defendant’s guilt. See Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). The transcript when viewed in the light most favorable to the verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. The trial court did not err in denying appellant’s extraordinary motion for new trial based upon newly discovered evidence. The trial court’s finding of fact that the absence of any defense witnesses who would testify as to rifle ownership was due to appellant’s instructions not to secure the witnesses’ presence, is supported by evidence of record; moreover, we agree that such testimony would have been corroborative in nature. Also, appellant has failed to carry his burden of satisfying all six of the requirements of Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) as to any of the proffered evidence. Failure to satisfy any one of these requirements is sufficient to deny either a motion for new trial or an extraordinary motion for new trial. See Cofield v. State, 204 Ga. App. 776, 779 (2) (420 SE2d 597). Most of the allegedly newly discovered evidence either was corroborative in some degree of other evidence of record or would merely attack witness credibility. Further, appellant has failed to establish that any of the alleged newly discovered evidence was “so material that it probably would produce a different outcome.” (Emphasis supplied.) Id. OCGA § 5-5-41 (a) gives the trial judge discretion to allow the filing of an extraordinary motion for new trial. Martin v. Children’s Sesame, 188 Ga. App. 242 (1) (372 SE2d 648). The trial court did not abuse its discretion by denying the extraordinary motion for new trial. See Merka v. State, 201 Ga. App. 471, 473 (2) (411 SE2d 357).

3. The trial court did not err in denying appellant’s motion for new trial based on ineffective assistance of counsel. The trial court concluded appointed counsel was diligent and effective. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. Ferrell v. State, 261 Ga. 115, 119-120 (401 SE2d 741).

(a) There exists no specified amount of time which a counsel must spend in preparation for trial; each situation must be judged upon its own circumstances and in light of its own degree of complexity. Hand v. State, 205 Ga. App. 467, 469 (2) (422 SE2d 316). There was no total failure of trial preparation in this case as in Cochran v. State, 262 Ga. 106 (414 SE2d 211). .

(b) The record fails to establish an actual conflict of interest on the part of appellant’s trial counsel. Compare Pullen v. State, 208 Ga. App. 581 (3) (431 SE2d 696). Prejudice is presumed, under the test of Strickland v. Washington, 466 U. S. 668, 692 (104 SC 2052, 80 LE2d 674), only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance. Pullen, supra. Actual conflict is not established by ingenious claims in appellate briefs inadequately supported by the record; mere possibility of conflict is insufficient to impugn a criminal conviction amply supported by competent evidence. Id. Appellant has failed to establish an actual conflict; his trial counsel stated on the record that he was not involved directly or indirectly in any lawsuit appellant had filed against Cobb County officials and had not issued any warrants as a Cobb County magistrate which involved appellant.

(c) Although the transcript of the motion for new trial hearing reflects appellant’s trial counsel advised appellant not to testify at the motion to suppress hearing, it appears such advice was given as a legitimate trial tactic. Moreover, trial counsel had previously testified that he and appellant “talked about everything — every decision, because [counsel] learned very quickly that . . . the client makes the ultimate call.” Thus, it can be concluded appellant voluntarily made the ultimate decision, after receiving advice of counsel, not to testify at the suppression motion hearing.

The record also reflects appellant first informed his counsel that the weapon was owned by a man from Puerto Rico; thereafter, appellant’s wife informed cofinsel the. man from Puerto Rico had died. Subsequently, appellant informed counsel that appellant’s brother Steven owned the gun and that Steven was in Florida and was wanted on Georgia warrants. Counsel further testified appellant told him that he did not want his brother “to get involved up here.” This testimony supports the determination of the trial court regarding the adequacy of trial counsel, and supports the trial court’s conclusion that the absence of any witnesses in regard to rifle ownership was due to instructions of appellant.

(d) In view of the lack of showing of actual conflict of interest, the proper test to be employed is the two-prong test of Strickland, supra. Pretermitting whether counsel’s professional performance was deficient is whether the result of the proceeding would have been different but for counsel’s performance. Appellant has failed to establish by a reasonable probability that, but for trial counsel’s alleged unprofessional errors, the result of the proceeding would have been different. Appellant has failed to establish inadequacy of trial counsel within the meaning of Strickland, supra. Also, a trial court’s finding that appellant had been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous (Whitner v. State, 202 Ga. App. 608, 609 (415 SE2d 52)); the trial court’s findings were not clearly erroneous.

4. Assuming appellant had standing to challenge the warrantless search of his wife’s car, the trial court did not err in denying the motion to suppress the evidence seized.

(a) Appellant has abandoned the issue whether he could consent to the search of his wife’s car. Court of Appeals Rule 15 (c) (2). In any event, such argument is without merit. Pupo v. State, 187 Ga. App. 765, 767 (5) (371 SE2d 219); see Illinois v. Rodriguez, 497 U. S. 177 (110 SC 2793, 111 LE2d 148).

(b) Appellant failed to preserve any issue as to the legality of the search by failing to object to the admissibility of the rifle at trial. Mattingly v. State, 205 Ga. App. 777 (423 SE2d 709).

(c) Additionally, the officer testified that appellant, after being advised of his Miranda rights, voluntarily consented to the search of his wife’s car; after the assault weapon was found in the trunk, appellant also voluntarily signed a written consent to search. Appellant further was advised he could stop the search of the car and house at any time. The officer denied threatening to have appellant and his wife jailed and their children placed in DFCS custody if appellant failed to cooperate. Courts determine voluntariness of consent by examining the totality of the circumstances. State v. McBride, 261 Ga. 60, 62 (1) (401 SE2d 484). That consent may have occurred after an officer seized the object does not per se render the consent invalid (id.); a subsequent free and voluntary written consent (even where no prior oral consent has been given) will serve to ratify a prior warrantless entry. State v. Sutton, 258 Ga. 382 (2) (369 SE2d 249). The record in this case is sufficient to establish that both the prior oral consent and the subsequent written consent were freely and voluntarily given. Unless clearly erroneous, the trial court’s ruling on disputed facts and credibility at a suppression hearing must be accepted on appeal. Huff v. State, 205 Ga. App. 557, 558 (422 SE2d 664). The trial court’s finding that appellant gave a free and voluntary consent to the search of the vehicle was not clearly erroneous.

5. The trial court did not abuse its discretion in denying appellant’s motion for mistrial. In response to a question whether he was still in possession of the seized raincoat, the detective indicated that a Cobb County court had released it, and he did not know “if they were aware of this case pending . . . after another case, it was released.” Appellant’s counsel conceded on the record that he knew the witness did not “intentionally testify” to inadmissible information. The trial court denied appellant’s mistrial motion. The testimony did not reveal to the jury whether the other case was civil or criminal, or whether appellant was even a party to the case. The trial court did not abuse its discretion in denying the mistrial motion. See Oller v. State, 187 Ga. App. 818, 822 (3) (371 SE2d 455). Moreover, since appellant’s counsel thereafter affirmatively elected not to ask for any curative instructions, the issue of the court’s failure to give curative instruction was not preserved for appellate review. Id. at 823 (4).

6. Appellant argues that the trial court erred in admitting certain pretrial statements of appellant in evidence. The record establishes that appellant was duly advised of his Miranda rights before he was subjected to questioning by the officers before being transported to the police station. Thereafter, while sitting voluntarily in the police car, appellant made certain admissions to police about driving the car in question that day; he also subsequently admitted his knowledge of the existence of the rifle in the car trunk. Before making any of these statements, he did not request counsel or assert his right of silence; he waived these rights. Aldridge v. State, 258 Ga. 75, 76 (3) (365 SE2d 111). Appellant, after being re-advised of his Miranda rights, subsequently made certain other admissions at the police station. Appellant’s fifth enumeration expressly asserts that the pretrial statements were inadmissible due to the State’s noncompliance with OCGA § 17-7-210.

Appellant was adequately advised of and did knowingly and intelligently waive his Miranda rights and, his contested pretrial statements were voluntarily made. See Mainor v. State, 259 Ga. 803, 804 (3) (387 SE2d 882); Aldridge v. State, supra. Moreover, under the attendant circumstances, the trial court’s determination that defendant was not in custody when he voluntarily accompanied the detectives to their car and then to the South Precinct was not clearly erroneous. See Williams v. State, 208 Ga. App. 153 (2) (430 SE2d 42); Magher v. State, 199 Ga. App. 508 (5) (405 SE2d 327); cf. Whatley v. State, 196 Ga. App. 73, 78 (5) (395 SE2d 582). Compare D’Anna v. State, 201 Ga. App. 731 (1) (412 SE2d 857) where the defendant was determined to be in custody for purposes of OCGA § 17-7-210. In D’Anna, defendant thought he was not free to leave and officers testified they intended to arrest him and would not have let him leave at the time the statement was made. The facts in the case at bar are distinguishable from D’Anna. Appellant’s fifth enumeration of error is without merit.

7. The trial court did not err in denying appellant the use of the detective’s personnel files. Examination of the sealed personnel files fails to support appellant’s claim of a pattern of improper police work so as to be either legally or logically relevant to “challenge” the validity or voluntariness of his alleged consent to search; nor do we find any exculpatory evidence in the files. “[A]bsent a manifest abuse of discretion,” we will not reverse a trial court’s exclusion of evidence either on grounds of lack of logical relevance or because the probative value of the tendered evidence was found to be outweighed by its potential for prejudice or for misleading the jury. Friedman v. Friedman, 259 Ga. 530, 532 (3) (384 SE2d 641); see Everman v. State, 203 Ga. App. 350, 352 (3) (416 SE2d 861); see also Renner v. State, 260 Ga. 515 (2) (397 SE2d 683).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur specially.

Pope, Chief Judge,

concurring specially.

Although I reach the same conclusion as the majority with respect to Division 6,1 write separately to clarify the defendant’s argument and why it fails under the circumstances of this case. The defendant does not assert in this enumeration of error that his Miranda rights were violated or that his pre-trial statements were not voluntarily made. Rather, he contends that even though these statements were knowingly and voluntarily made, they should nonetheless have been excluded because the State did not provide him with a copy of the statements as required by OCGA § 17-7-210.

The defendant raised this issue below in a motion in limine, and after hearing evidence and argument, the trial court ruled that the State’s failure to comply with OCGA § 17-7-210 did not compel exclusion of the statements in question because defendant was not in custody when he made them. At the hearing on the motion, two detectives testified that they went to defendant’s home one evening. They drove an unmarked car, they wore plain clothes and their guns and handcuffs were not in sight. When the detectives told defendant they wanted to question him about a series of burglaries and related forgeries they were investigating, defendant accompanied the detectives to their car. The detectives read defendant his Miranda rights because he was a subject of their investigation, but they told defendant that they were there to investigate, not to arrest him, and that regardless of what he said or did not say that night, he would be spending the night in his own home. Defendant admitted playing a role in the forgeries, willingly giving the officers a statement which placed most of the blame for the burglaries and forgeries on another man. He later went with the detectives to the South Precinct so they could record his statement. In the course of his statements, defendant admitted that he drove the car registered in his wife’s name and that no one else drove it; referred to the vehicle several times as “my car”; and talked about using it on two specific occasions, once that day and once several days earlier. It is these incriminating admissions defendant sought to exclude. Defendant was not arrested that night, and the detectives took him home after his taped statement was complete. Both detectives testified that defendant went with them voluntarily and that he could have left the car or the precinct at any time. Although defense counsel suggested the detectives threatened defendant and his family if he did not cooperate, defendant presented no evidence to support this suggestion and the detectives denied it. Under these circumstances, the trial court’s determination that defendant was not in custody when he voluntarily accompanied the detectives to their car and then to the South Precinct was not clearly erroneous. See Williams v. State, 208 Ga. App. 153 (2) (430 SE2d 42) (1993); Magher v. State, 199 Ga. App. 508 (5) (405 SE2d 327) (1991). Compare D’Anna v. State, 201 Ga. App. 731 (1) (412 SE2d 857) (1991) (when defendant thought he was not free to leave and officers testified they intended to arrest defendant and would not have let him leave at the time he gave a statement, defendant was in custody for purposes of OCGA § 17-7-210 even if formal arrest came later). Accordingly, I agree that the judgment should be affirmed.

Decided September 21, 1993

Reconsideration dismissed October 13, 1993

William A. Jordan, for appellant.

Richard R. Datz, Jr., pro se.

Garry T. Moss, District Attorney, Gregory A Hicks, Assistant District Attorney, for appellee.

I am authorized to state that Judge Andrews joins in this special concurrence.


author: Smith, Judge.

text:
    A93A0960.
    NEAL v. THE STATE.
    (436 SE2d 574)
   Smith, Judge.

Manuel Neal was indicted on two counts of aggravated child molestation. At Neal’s first trial the jury failed to agree on a verdict, and a mistrial was declared. At the second trial, the jury found Neal guilty on both counts. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts.

1. Neal enumerates as error the general grounds. Viewed in the light most favorable to the verdict, the evidence at trial showed that the nine-year-old victim complained to her mother of pain in her side and was taken to Grady Hospital. A physician in Grady’s pediatric emergency clinic testified to his examination of the victim. His provisional diagnosis, based upon his examination and a Gram stain test, was one of recent sexual abuse and infection with gonorrhea. After this diagnosis, the victim told her mother that her stepfather, Neal, had raped her, and she recounted the incident to a police officer, a school counselor, and an employee of Grady Hospital’s outpatient child psychiatry unit. At trial, the victim testified that Neal removed his clothing, pulled down her underwear, kissed her, placed his mouth on her “private” and then placed his “private” in her “private.” When she began to cry, he threatened to stab her mother to death. A rational trier of fact could reasonably find that Neal was guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Neal also enumerates as error the trial court’s refusal to allow testimony on retrial that the mother of the victim was a cocaine addict and had casual relationships with numerous men in the family home. This testimony was offered in support of Neal’s contention that one of these unidentified men or the mother herself may have molested the victim.

The trial court properly excluded this testimony. Generally, evidence implicating another named individual as the actual perpetrator of the crime is relevant and admissible as tending to exonerate the defendant. Henderson v. State, 255 Ga. 687, 689 (1) (341 SE2d 439) (1986); Walker v. State, 260 Ga. 737, 738 (1) (399 SE2d 199) (1991). However, this is not the case where no specific individual is accused the defendant merely speculates that a person or persons unknown may have had the opportunity to commit the crime. Palmer v. State, 186 Ga. App. 892, 898 (3) (369 SE2d 38) (1988). “ ‘The evidence, to be admissible, must be such proof as directly connects the other person with the corpus delicti, and tends clearly to point out someone besides accused as the guilty person. Evidence which can have no other effect than to cast a bare suspicion on another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible. . . .’ [Cit.]” Bradford v. State, 204 Ga. App. 568, 569 (420 SE2d 4) (1992).

Evidence that the victim resided with another man who had been charged with molesting another child was properly excluded in Sales v. State, 199 Ga. App. 791, 792 (2) (406 SE2d 131) (1991). In Burris v. State, 204 Ga. App. 806, 809 (2) (420 SE2d 582) (1992), evidence that another named person with access to the victim had attempted to molest and rape other children in the family was properly excluded because the victim never named that person as a molester and there was no other evidence to indicate that the victim herself was ever molested by that individual. In contrast, though, Burris also held that exclusion of evidence that the victim had accused yet another individual of molesting her during the same time period was reversible error. 204 Ga. App. at 810.

There is no evidence that any specific person other than Neal ever molested the victim, and Neal has not presented anything other than his own speculation that unknown alleged drug users frequenting his residence may have had the opportunity to molest the victim. The victim consistently identified Neal as the only person who molested her. The testimony proffered by Neal does not meet the requirements for admission set forth in Henderson.

3. Neal also contends that the trial court erred in excluding evidence that the victim’s mother had told her about the mother’s own molestation as a child. The State presented extensive evidence regarding the “child sexual abuse accommodation syndrome” and its symptoms as manifested in the victim. See generally Allison v. State, 256 Ga. 851 (353 SE2d 805) (1987). The victim testified to symptoms and behaviors which were identified by an expert witness as consistent with the syndrome. Neal’s counsel attempted to cross-examine the victim regarding her mother’s own accounts of molestation as a child by her mother and eldest brother. Neal contended this was relevant to show that the source of the victim’s complaints could have been information subconsciously absorbed from those accounts.

The trial court sustained the State’s hearsay objection to Neal’s attempt to elicit this testimony on cross-examination of the victim. The victim’s mother testified for the State in the original trial, but did not testify on retrial. When Neal attempted to call the victim’s mother to the stand, the State objected on the ground that she had not been subpoenaed, and the trial court sustained the objection. Neal has failed to enumerate as error the trial court’s refusal to allow him to subpoena the victim’s mother and has presented no argument on that ground. Accordingly, we do not reach that issue. Pouncey v. Adams, 206 Ga. App. 126, 129 (2) (424 SE2d 376) (1992).

Generally, evidence of a child victim’s prior molestation or other sexual history is inadmissible absent a showing of relevance. See Woods v. State, 187 Ga. App. 105 (1) (369 SE2d 353) (1988). However, where the State introduces testimony regarding the child sexual abuse accommodation syndrome and connects the child’s behavior to that syndrome, evidence of prior sexual conduct, such as molestation by an identified third person, may become relevant as an alternative explanation for the apparent link to the syndrome. Hall v. State, 196 Ga. App. 523, 525 (2) (396 SE2d 271) (1990). “Testimony regarding the syndrome . . . having been properly admitted, the evidence regarding other possible causes of her behavior and injuries was necessary to prevent the jury from reaching the unwarranted conclusion that the only possible explanation for the medical findings and the existence of behavior consistent with the child sexual abuse accommodation syndrome was that the victim had been molested by appellant. Moreover, a jury’s awareness that the victim had been molested previously could affect its judgment of the victim’s credibility, as the credibility of a young child’s report of an improper touching must necessarily be greater if the child has had no occasion to learn about such behavior from prior incidents.” Id.; see also Marion v. State, 206 Ga. App. 159, 160 (1) (424 SE2d 838) (1992).

Decided October 13, 1993.

Kendall & Dixon, Alvin L. Kendall, for appellant.

Lewis R. Slaton, District Attorney, Suzanne Wynn, Vivian D. Hoard, Assistant District Attorneys, for appellee.

If the only issue raised by the evidence in this case was whether the victim concocted or imagined her testimony, the exclusion of evidence that the victim could have acquired information on molestation from a source other than molestation by Neal might be error. However, in view of the overwhelming evidence that the victim was actually molested, including but not limited to the physical evidence of recent sexual abuse and the diagnosis of gonorrhea, any contention that she acquired her knowledge of molestation from her mother’s account lacks merit. Such an account, while possibly offering an alternative explanation for the victim’s knowledge or behavior, cannot do so for the physical evidence. In view of the positive and consistent testimony of the victim that Neal molested her, and the total lack of evidence that any third party molested her, any error on this ground was harmless.

4. We do not reach the merits of Neal’s contention that a mistrial should have been granted due to the prosecutor’s comments during closing argument, because trial counsel failed to object to those comments. Neal waived his right to appellate review by failing to object at trial. Williams v. State, 251 Ga. 749, 801 (14) (312 SE2d 40) (1983); York v. State, 207 Ga. App. 494, 498 (4) (428 SE2d 113) (1993).

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A1016.
    MADDOX v. THE STATE. FOSTER v. THE STATE.
    A93A1034.
    (436 SE2d 730)
   Smith, Judge.

Reginald George Maddox a/k/a Roy Merritt a/k/a Bennie Lee Daniels and Peyton Foster a/k/a Vickie Sandra Collins were charged in the same indictment with theft by shoplifting, OCGA § 16-8-14. Both were tried and convicted by a jury, and this appeal followed.

1. In Case No. A93A1016, Maddox enumerates as error the admission of his spontaneous statement that he had injected himself with cocaine and heroin before entering the grocery store. Evidence as to whether Maddox was under the influence of alcohol or drugs on the day in question was admissible as part of the res gestae of the crime. Latham v. State, 195 Ga. App. 355, 356 (2) (393 SE2d 498) (1990). “The logic of this general rule is particularly clear in a case such as this one, where the state of mind of the accused is pivotal.” Giddens v. State, 206 Ga. App. 409 (425 SE2d 299) (1992). Where goods are not actually removed from a store, concealment of the goods with the intent to deprive establishes the offense of theft by shoplifting. OCGA § 16-8-14 (a) (1). Maddox testified that he never took the cigarettes out of the store and never intended to conceal them. The statement is also relevant to Maddox’s motive to commit the alleged crime in order to purchase drugs, and to explain his unusual behavior in the store both while attempting to remove the cigarettes and while struggling with the police officers. Admission of this testimony was not error. See Bogan v. State, 206 Ga. App. 696, 697 (1) (426 SE2d 392) (1992).

2. Maddox also contends that because the State failed to produce the tape recording of the preliminary hearing in response to his requests for production, the recording should have been excluded under OCGA § 17-7-210. However, that Code section by its terms applies only to statements given “while in police custody.” OCGA § 17-7-210 (a). A statement made before a person is taken into custody, or while the person is out on bond, is not within the scope of this statute. See Shelton v. State, 196 Ga. App. 163 (3) (395 SE2d 618) (1990); Martin v. State, 179 Ga. App. 551, 553 (5) (347 SE2d 247) (1986). It therefore follows that a person testifying before a magistrate or other judicial officer in open court at a preliminary hearing is likewise not in police custody within the contemplation of OCGA § 17-7-210 (a). The circumstances which the Code section addresses do not exist when a person is giving testimony before an impartial finder of fact.

“Even if it is assumed, for the sake of argument, that appellant’s detention . . . constituted ‘police custody,’ the statements made by appellant were neither incriminating nor inculpatory. Statements that are not incriminating or inculpatory do not fall within the ambit of OCGA § 17-7-210, and therefore need not be furnished to a defendant” under that Code section. Williamson v. State, 188 Ga. App. 307, 308 (1) (372 SE2d 685) (1988). The tape recording of the preliminary hearing contained no statement which was inculpatory or incriminating on its face; it became so only as a result of his testimony at trial and was admitted for the limited purpose of impeachment. Dawson v. State, 203 Ga. App. 146, 147 (1) (416 SE2d 125) (1992). The single inculpatory statement, that Maddox needed money to buy drugs, was testified to by the magistrate alone, on rebuttal, and did not appear on the tape, portions of which were inaudible.

3. Maddox’s remaining enumerations of error are based upon the general grounds and the overruling of his motion for a directed verdict of acquittal. “On appeal from a finding of guilt, the presumption of innocence no longer prevails and evidence must be viewed in the light most favorable to the verdict, for it reflects the jury’s determination on the credibility and weight of evidence which determination we must accept; we consider only the sufficiency of the evidence to support a conviction. [Cit.]” Gazaway v. State, 207 Ga. App. 641, 642 (1) (428 SE2d 659) (1993).

OCGA § 16-8-14 provides: “(a) A person commits the offense of theft by shoplifting when he alone or in concert with another person, with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, does any of the following: (1) Conceals or takes possession of the goods or merchandise of any store or retail establishment. . . .”

While the grocery manager and a head clerk, as well as a police officer watched through a two-way mirror, Maddox furtively loaded a large quantity of cigarettes into a cardboard box, closed the flaps on the box, and made two or three attempts to carry it out of the grocery store through an area without cash registers. He apparently responded to Foster’s hand signals in loading and moving the box, in leaving and reentering the aisle, and in attempting to leave the store. The evidence showed that the alarm on the store’s cigarette case had been disconnected and that Maddox had no money with which to pay for the cigarettes. Maddox denied having acted as the three witnesses testified he did. Finally, he gave conflicting accounts of the reason for his visit to the store and the length of time he had known Foster. A rational trier of fact could reasonably find that Maddox was guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. In Case No. A93A1034, the only enumeration of error advanced by Foster is that the evidence was insufficient as a matter of law to support her conviction. This contention has no merit.

While mere presence at the scene of a crime does not support a conviction, “ ‘presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.’ [Cit.]” Kimbro v. State, 152 Ga. App. 893, 894 (264 SE2d 327) (1980). “A person who acts as a ‘lookout’ during the commission of a [crime] is participating in the commission of that crime within the meaning of Code Ann. § 26-801 [OCGA § 16-2-20].” DeLoach v. State, 142 Ga. App. 666 (1) (236 SE2d 904) (1977). See Lay v. State, 184 Ga. App. 655, 656 (1) (362 SE2d 458) (1987).

Decided October 13, 1993.

Joseph M. Todd, for appellant (case no. A93A1016).

Gary Tharp, for appellant (case no. A93A1034).

Robert E. Keller, District Attorney, Gina C. Naugle, Assistant District Attorney, for appellee.

Foster was observed by three witnesses as she stood at a vantage point and made hand signals while Maddox loaded cartons of cigarettes. According to the testimony, Maddox observed her hand signals and responded to them. She attempted to leave the store with Maddox and the cigarettes, bypassing the cashiers. Moreover, she gave conflicting accounts of her relationship with Maddox and her reason for visiting the store. Viewing this evidence in a light most favorable to the verdict, we conclude that a rational trier of fact reasonably could have found that Foster was guilty of the offense of shoplifting beyond a reasonable doubt under the standard of Jackson v. Virginia. See Carter v. State, 188 Ga. App. 464 (1) (373 SE2d 277) (1988).

Judgment affirmed in Case No. A93A1016 and Case No. A93A1034.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A1151.
    HANCOCK v. THE STATE.
    (437 SE2d 610)
   Birdsong, Presiding Judge.

Ricky Lee Hancock appeals his judgment of conviction of trafficking in cocaine, possession of cocaine, and possession of cocaine with intent to distribute, the sentence, and the denial of his motion for new trial. In State v. Hancock, 203 Ga. App. 577 (417 SE2d 381), the State appealed the trial court’s grant of appellant’s motion to suppress; we concluded the trial court erred in granting the suppression motion and reversed.

Certain police witnesses testified to the circumstances surrounding appellant’s arrest and to the seizure of cocaine hidden under appellant’s hat. Appellant testified in his own behalf, denied criminality, and asserted that the police were out to “bust” him and that he did not know where the cocaine could have come from. On cross-examination in response to questions posed by the State, appellant testified in a manner implying it could be shown the cocaine was planted because it was old cocaine (which appellant speculated may have come from the police evidence room) and that he knew about cocaine. Held:

1. Appellant claims, inter alia, he was denied effective assistance of counsel. His defense counsel testified at a post-trial hearing that she believes her representation of appellant was impaired by her medical condition, although she cannot be sure to what extent.

Pretermitting the issue of trial defense counsel’s inadequacy is whether other reversible error occurred during appellant’s trial. Although no timely specific objection was posed to the admission of certain evidence, we will not employ waiver to preclude appellate review of the merits of enumerations hereafter discussed. See generally Taylor v. State, 186 Ga. App. 113, 114-115 (3) (366 SE2d 422); Kearney v. State, 184 Ga. App. 64, 66 (360 SE2d 633); see Ryals v. State, 186 Ga. App. 457, 459 (367 SE2d 309) (concurring opinion).

2. Appellant asserts the trial court erred in allowing the State to place his character in evidence by allowing him to be cross-examined over certain prior drug convictions pertaining either to cocaine or marijuana, and thereafter admitting records of such convictions in evidence.

The State asserted appellant opened the door for cross-examination by testifying he was aware of the properties of old cocaine as he had been previously in possession of it and had lied about where he had seen it, and that he likewise opened the door for admission of records of his prior drug convictions. The record reveals appellant did not testify that he previously had been in possession of cocaine, nor did he otherwise elect to place his character in issue either during direct or cross-examination. Rather, during cross-examination, appellant eventually stated he had previously seen cocaine “plenty of places” including “on TV, everywhere else.” Contrary to the State’s contention, appellant neither expressly nor by implication lied as to the source of his knowledge of cocaine. By testifying that he had seen it plenty of places, on TV and everywhere else, appellant did not rule out or exclude his own prior personal possession; however, neither did appellant, by his testimony, admit expressly or by implication that he had been engaged in any prior criminal misconduct.

Moreover, “only where the defendant makes an election to place his good character in issue may the State offer evidence of the defendant’s general bad character or his prior convictions under the authority of OCGA § 24-9-20 (b).” Jones v. State, 257 Ga. 753, 758 (1) (363 SE2d 529). Further, “a defendant does not put his ‘character in issue’ within the meaning of OCGA § 24-9-20 (b) by inadvertent statements regarding his own good conduct.” Id. The State concedes in its brief that, under the holding of Jones, supra, “appellant did not place his character into issue in terms of ‘opening the door’ for the admission of general character evidence.” Thus, “[w]here the defendant testifies in his own behalf and ‘ “falsely denies past criminal conduct (or past misdeeds), the State may introduce evidence reflecting negatively on the defendant’s character only insofar as that evidence proves the falsity of specific testimony of the defendant.” ’ ” Id. at 759 (1a). Appellant did not falsely deny past criminal conduct; and even assuming he had falsely testified as to his prior possession of cocaine, appellant’s prior convictions pertaining to possession or distribution of marijuana would not disprove and rebut that “specific testimony.” Compare Bryant v. State, 204 Ga. App. 856, 860 (3) (420 SE2d 801). Also, “[w]here the defendant testifies and admits prior criminal conduct, he has not placed his character ‘in issue’ within the meaning of OCGA § 24-9-20 (b). Rather, he has raised an issue which may be fully explored by the State on cross-examination. [Cit.] If, however, the defendant testifies he has committed a crime, implying that this is his only criminal record, his testimony is again subject to rebuttal by proof of other crimes he has committed.” Jones, supra at 759 (lb). In this instance, appellant did not testify either on direct or cross-examination in such a way as to admit prior criminal conduct, within the meaning of this exception. Nor did he testify in a manner implying that he had no criminal record. Thus, this exception provides no assistance to the State. While sometimes evidence also can be offered, although not technically qualifying as similar transaction evidence due to its relevancy, to show a special relationship between an accused and a victim (Rainwater v. State, 256 Ga. 271 (347 SE2d 586)), this is not such a case. Further, “when a witness gives a non-responsive [and even belligerent] answer to a question impacting negatively on the defendant’s character, this does not place the defendant’s character in issue under OCGA § 24-9-20 (b).” Jones, supra at 759 (lc). Moreover, the Supreme Court overruled its holding in Phillips v. State, 254 Ga. 370 (329 SE2d 475) to the effect that where a defendant admits to any prior criminal conduct which is less than all his criminal offenses, he has put his character in issue within the meaning of OCGA § 24-9-20 (b), by attempting to portray his bad character as better than it actually is. The Supreme Court concluded that when the petitioner admitted two crimes other than the crimes of which he was charged, the State could fully cross-examine him over this testimony, but was not entitled to introduce his prior felony convictions against him. Jones, supra at 760. Thus, our prior precedent that was grounded solely upon the above rule in Phillips can no longer be relied upon as controlling. The trial court erred in admitting the records of appellant’s previous convictions in this instance. Compare Mikle v. State, 236 Ga. 748 (225 SE2d 275); Houston v. State, 192 Ga. App. 73 (383 SE2d 571); Moses v. State, 190 Ga. App. 699 (3) (379 SE2d 819); Hurston v. State, 189 Ga. App. 748, 750 (3) (377 SE2d 519); Williams v. State, 187 Ga. App. 564, 566 (2) (370 SE2d 821); Johnson v. State, 186 Ga. App. 117 (366 SE2d 424), citing Askew v. State, 135 Ga. App. 56 (1) (217 SE2d 385) (State precipitated the issue).

Thrasher v. State, 204 Ga. App. 413 (1) (419 SE2d 516) and Mitchell v. State, 158 Ga. App. 628 (281 SE2d 260), cited by the State, are not controlling, as these cases involve situations where appellant testified falsely as to certain specific facts and the prior convictions constituted “sufficient evidence,” within the meaning of OCGA § 24-1-1 (7), to refute such specific testimony.

The State argues that the records of conviction were admissible in evidence as defense’s claim of drug planting was analogous to a claim of entrapment and that this type of evidence is admissible to show appellant’s bent of mind. While we agree that a drug planting claim is analogous in a certain respect to an entrapment claim, in order to be admissible to show bent of mind such evidence must meet the so-called similar transaction test (see generally Williams v. State, 261 Ga. 640 (409 SE2d 649)). Compare Sheppard v. State, 205 Ga. App. 373 (422 SE2d 66). The similar transaction requirements of Williams, supra, were not met in this instance.

Nor can we conclude, using the standard of Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869), the error was harmless.

3. Appellant asserts the trial court erred in imposing a life sentence because, as evidence exists only of the two bags of cocaine hidden together under his hat, the offenses of cocaine possession and cocaine possession with intent to distribute merged into the greater offense of cocaine trafficking, and a life sentence is not authorized for trafficking. At sentencing, appellant’s defense counsel questioned whether possession and possession with intent to distribute would be a lesser offense of trafficking, and stated that trafficking does not carry a life sentence. (Assuming arguendo, appellant’s counsel failed to object in proper form to this matter, the issue, in this instance, is still preserved for appellate review. Taylor, supra; Kearney, supra.) The State asserts that as appellant was convicted of possession of cocaine with intent to distribute, a life sentence is mandated by OCGA § 16-13-30 (b), and that possession to distribute is the greater offense in this case, merely because it carries the greater punishment. But see Horne v. State, 192 Ga. App. 528, 533 (6), 535 (385 SE2d 704) (majority and concurring opinions).

(a) OCGA § 16-1-7 (a) (1) pertinently provides: “When the same conduct of an accused may establish the commission of more than one crime, the accused . . . may not, however, be convicted of more than one crime if: (1) One crime is included in the other.” (Emphasis supplied.) OCGA § 16-1-6 (1) contains the standards for determining whether an offense is lesser included as a matter of fact; the second subsection of this Code provision sets out the standards for determining whether the offense is lesser included as a matter of law. Harmon v. State, 208 Ga. App. 271 (430 SE2d 399). Offenses can be lesser included offenses of greater offenses either as a matter of fact or of law; these are alternative and not conjunctive. Harmon v. State, supra; see generally State v. Sallie, 206 Ga. App. 732 (427 SE2d 11), citing State u. Evans, 192 Ga. App. 216 (384 SE2d 404). OCGA § 16-1-6 (1) provides that an offense can be a lesser included offense, as a matter of fact, when: “(1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged.” “That portion of OCGA § 16-1-6 (1) pertaining to a proof of the same facts test is but a variant application of the ‘uses up all the evidence’ test, cited in Fredrick [v. State, 181 Ga. App. 600, 602 (2) (353 SE2d 41)] and established in Haynes v. State, 249 Ga. 119, 120 (2) (288 SE2d 185).” Sallie, supra at 734.

(b) It has been concluded that under our current statutes, a “sentence for second offense of possession of cocaine is greater than that for trafficking in cocaine.” Hall v. State, 262 Ga. 596, 597 (1a) (422 SE2d 533). Nevertheless, neither OCGA § 16-1-6 nor OCGA § 16-1-7 purport to make any offense a greater offense, either as a matter of law or fact, solely because violation thereof mandates or otherwise results in the imposition of a greater sentence, or to make any offense a lesser included offense merely because a lesser sentence was statutorily authorized for its violation. Rather, notwithstanding the sentence authorized or mandated, an offense is lesser as a matter of fact if (after proper application of the above tests) it is found to fall within the parameters of OCGA § 16-1-6 (1). There rationally may be a difference between what is perceived by the legislature as the more “serious” offense for sentencing purposes, and that which it perceives to be a “lesser” offense for purposes of statutory prohibition of multiple prosecution for the same criminal conduct. Compare OCGA §§ 16-1-6 (1); 16-1-7 (a) with Tillman v. State, 260 Ga. 801 (400 SE2d 632) and Hall, supra. Thus, merely because a conviction for possession with intent to distribute may mandate life imprisonment is not controlling in determining whether such an offense is a greater or lesser included offense of trafficking. OCGA § 16-1-6 (1). See generally Horne v. State, supra, and compare the majority opinion as to merger (id. at 533 (6)) with the concurring opinion (id. at 534).

(c) The offense of possession of cocaine was a lesser included offense of the offense of possession with intent to distribute cocaine as a matter of law. Talley v. State, 200 Ga. App. 442, 446 (408 SE2d 463). (Likewise, it has been held that an OCGA § 16-13-30 (b) offense is a lesser included offense, as a matter of law, of a trafficking conviction under OCGA § 16-13-31. Gilbert v. State, 208 Ga. App. 258 (430 SE2d 391).) Possession of cocaine also was a lesser included offense, as a matter of fact, of possession with intent to distribute cocaine, as the same evidence used to prove the greater offense of possession with intent to distribute would per force prove the lesser offense of possession as averred in the indictment. Id.

The offense of possession of cocaine has been held to be a separate crime from that of illegal sale of cocaine, under the alternative matter of law test, but to be a lesser included crime (under the facts there attendant) as a matter of fact. State v. Estevez, 232 Ga. 316, 320 (1) (206 SE2d 475). However, pretermitting whether either possession, possession with intent to distribute, or both is a lesser offense, as a matter of law, of trafficking (compare Estevez, supra, with Gilbert, supra, and Montgomery v. State, 204 Ga. App. 534, 537 (6) (420 SE2d 67) (dictum)) is whether in this instance the offenses were lesser included as a matter of fact. Compare Iglesias v. State, 191 Ga. App. 403 (381 SE2d 604); see also McAlister v. State, 204 Ga. App. 259 (419 SE2d 64) (dictum) (trial court vacated possession with intent to distribute cocaine conviction as it constituted a lesser included offense of trafficking); Kemp v. State, 201 Ga. App. 629, 630 (411 SE2d 880) (dictum) (co-defendant charged with trafficking and convicted of “the lesser included offense” of possession of cocaine); Marshall v. State, 197 Ga. App. 762, 763 (2) (399 SE2d 555) (“[appellant was indicted for trafficking in cocaine, and the jury was charged on that offense and the lesser included offenses, possession with intent to distribute and simple possession”; “the charge was a correct statement of the law”); Owens v. State, 192 Ga. App. 335, 340 (1a) (384 SE2d 920) (co-appellant indicted for trafficking in cocaine but convicted of “the lesser included offense of possession of cocaine with intent to distribute”); cf. Foster v. Cohen, 203 Ga. App. 434 (417 SE2d 61).

The record establishes that the same two bags of cocaine found hidden together in appellant’s hat constituted the only cocaine used to prove appellant’s commission of Counts 1, 2, and 3, distribution, possession, and possession with intent to distribute cocaine, respectively. Also, the record establishes the gross and net weights of the cocaine, but contains no evidence of the separate weight of the drugs contained in each individual bag. Thus; to prove the averment in the distribution count that appellant had in his possession 28 grams or more of cocaine, it also was necessary for the State to rely upon the combined drug weight contained in both bags of cocaine. Thus, the offenses of possession of cocaine and possession of cocaine with intent to distribute were lesser included offenses, as a matter of fact, of the distribution offense. Proof of the two possession offenses, under the circumstances of this case, was established by “the same or less than all the facts” required to establish the distribution offense; intent to distribute was established in this instance by the circumstances surrounding appellant’s search and the seizure of two bags of cocaine from his possession. Conversely, proof of the distribution offense required not only proof of the circumstances surrounding appellant’s search and the seizure of two bags of cocaine from his possession, but also additional proof of facts concerning the weight and purity of the cocaine mixture. In Iglesias, supra at 403, appellant was convicted of both cocaine trafficking and possession of cocaine with intent to distribute, the conviction for possession with intent to distribute was reversed and the sentence vacated; in doing so, it was held: “[U]nder the facts of this case [appellant] could not be convicted of both cocaine trafficking and also possession of cocaine with intent to distribute. As the State has conceded, the charge of possession with intent to distribute was a lesser included offense of trafficking as a matter of fact because the evidence required to convict appellant. . . was the only evidence showing possession with intent to distribute, see OCGA § 16-1-6 (1); State v. Estevez, [supra].” (Emphasis supplied.)

Accordingly, we conclude that the trial court erred. In view of our holding in Division 2 above, rather than vacating all but the trafficking conviction and remanding the case to the trial court for re-sentencing consistent with the precedent contained in this opinion, we reverse the judgment of convictions in their entirety. (In the interest of judicial economy, we note the attempted corrective action of the trial court of merely vacating the sentences for certain of the offenses but allowing the convictions of all three to stand is not in compliance with the statutory requirement of OCGA §§ 16-1-6 (1) and 16-1-7 (a).)

4. Appellant, citing Trenor v. State, 252 Ga. 264 (313 SE2d 482), asserts the trial court erred in its charge on intent by failing to inform the jury that a presumption of intent may be rebutted. In view of our holding above, we need not address either this claim nor any other remaining enumeration of error.

Judgment reversed.

Pope, C. J., and Andrews, J., concur specially.

Pope, Chief Judge,

concurring specially.

I write separately because I disagree with the majority’s conclusion in Division 1 that waiver does not preclude our consideration of the issue of whether similar transaction evidence was properly admitted at trial by failing properly to object in the trial court and, consequently, with Division 2 of the majority opinion which holds that defendant is entitled to a new trial because of the erroneous admission of this evidence. However, I do believe the evidence was inadmissible for the reasons stated in the majority opinion; that defense counsel’s failure to assert these arguments in the trial court was deficient; and that counsel’s deficient performance of the defendant prejudiced the defense so as to result in ineffective representation at trial. Accord Bryant v. State, 204 Ga. App. 856 (3) (420 SE2d 801) (1992); cf. Gilbert v. State, 208 Ga. App. 258 (4) (e) (430 SE2d 391) (1993) (in which the court rejected defendant’s contention that trial counsel was ineffective for failing to object to prior crimes evidence because the evidence of defendant’s guilt was overwhelming). Thus, defendant is not only entitled to re-sentencing, as the majority properly concludes in Division 3, he is also entitled to a new trial, but, in my opinion, for the reason that previous counsel rendered ineffective assistance of counsel at trial.

Decided October 13, 1993.

Daniel B. Kane, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Lisa W. Pettit, Assistant District Attorneys, for appellee.

I am authorized to state that Judge Andrews joins in this special concurrence.


author: McMurray, Presiding Judge.

text:
    A93A1516.
    TURNER v. TRUST COMPANY BANK.
    (436 SE2d 577)
   McMurray, Presiding Judge.

Plaintiff Lisa Turner brought suit against Trust Company Bank (“the bank”) in the Superior Court of Fulton County. She alleged that the bank financed an automobile which she purchased from Stovall Nissan, Inc.; that the bank wrongfully repossessed the automobile although she was not in default in her payments; that the bank misstated the amount it would take to redeem the automobile in violation of OCGA § 11-9-504; and that the bank was liable to her for (1) the value of the automobile, (2) the statutory amounts allowed in OCGA § 11-9-507, (3) punitive damages and (4) attorney fees. The bank answered the complaint and denied any liability to plaintiff. Thereafter, the bank moved for summary judgment.

In support of its summary judgment motion, the bank submitted the affidavit of Glenda Kiser, an operations officer with the bank. Ms. Kiser deposed that plaintiff’s automobile was repossessed on May 29, 1992; and, that at that time, plaintiff was in arrears, having failed to make two payments when they became due. Ms. Kiser also deposed that the bank sent plaintiff a “Notice of Repossession” on June 2, 1992; and that a true and correct copy of the notice was attached to her affidavit.

The notice informed plaintiff that she had a right to redeem the automobile upon the payment of $28,998.63. Ms. Kiser deposed that at the time the notice was sent, “the letter correctly stated the amount necessary to redeem the car.” She continued: “On June 3, 1992, [the bank] subtracted insurance charges which had been previously added to the account in the amount of $5,730.00 together with accrued interest in the amount of $438.71. The remaining balance was $22,857.34.” Ms. Kiser deposed further that the bank transferred the automobile to Stovall Nissan, on June 8, 1992, for $23,077.34, pursuant to a standing “full recourse assignment agreement.”

Plaintiff deposed that she was not in default, having timely made payments to the bank. She also admitted that she received a letter from Stovall Nissan, dated June 19, 1992, advising her that it intended to sell the collateral after ten days and that she could redeem the collateral by paying the balance due.

The trial court denied the bank’s motion for summary judgment upon plaintiff’s wrongful repossession claim, finding a factual question with regard to whether plaintiff was in default. However, the trial court granted the bank’s motion for summary judgment upon plaintiff’s OCGA § 11-9-507 claim. Plaintiff appeals from the trial court’s grant of partial judgment to the bank. Held:

In Stoppi v. Wilmington Trust Co., 518 A2d 82 (Del. 1986), the Stoppis executed a conditional sales contract with Larry’s Homes, Inc. (“LHI”) for the installment purchase of a mobile home. LHI assigned the contract and security agreement to the Wilmington Trust Company (“Wilmington”). Pursuant to an agreement between LHI and Wilmington, LHI was obligated to repurchase the contract in the event of default. Thereafter, the Stoppis defaulted on their obligation to Wilmington and Wilmington repossessed their mobile home. Two days later, Wilmington sent written notice to the Stoppis advising them that they were in default, the mobile home had been repossessed, and the property would be sold at private sale. Rather than selling the property at private sale, Wilmington reassigned the contract and title to the property to LHI pursuant to the repurchase agreement. LHI subsequently sold the property at a private sale without notifying the Stoppis.

The Stoppis brought suit against LHI and Wilmington alleging the defendants failed to give them reasonable notice in connection with the sale of their repossessed mobile home. They sought statutory damages pursuant to UCC § 9-507. Wilmington moved for summary judgment and so did the Stoppis. The superior court in Delaware granted Wilmington’s motion, ruling that Wilmington was not required to give the Stoppis notice inasmuch as it merely reassigned the mobile home to LHI pursuant to the repurchase agreement. (The superior court granted the Stoppis’ motion against LHI, holding it liable for statutory damages for failure to give the Stoppis reasonable notice of the sale.) The Stoppis appealed from the grant of summary judgment to Wilmington.

Decided October 13, 1993.

Ralph S. Goldberg, for appellant.

The Supreme Court of Delaware affirmed. Finding the Supreme Court of Delaware’s opinion to be sound and apposite, we extrapolate as follows:

“In order to establish [the bank’s] liability for damages under Section 9-507(1), the plaintiffs must prove a violation of one of the provisions contained [in Sections 9-501 through 9-506]. While the bank [may have given] an erroneous notice, it in fact had no duty under Section 9-504(3) to give any notice. Under the circumstances it cannot be held liable for Section 9-507(1) statutory damages.

“The reasonable notification requirement of Section 9-504(3) is triggered only in connection with a sale or other disposition of the repossessed collateral. This brings Section 9-504(5) of the Code into play — where a reassignment, as here, occurs. That law provides: ‘(5) A person who is liable to a secured party under a guaranty, indorsement, repurchase agreement, or the like and who receives a transfer of collateral from the secured party or is subrogated to his rights has thereafter the rights and duties of the secured party. Such a transfer of collateral is not a sale or disposition of the collateral under this Article.’ [UCC § 9-504(5).] [(Emphasis supplied.)]

“The last sentence in Section 9-504(5) makes clear that a reassignment of collateral from the bank back to the seller, pursuant to the repurchase agreement, is not a sale or disposition of the collateral under the Code. Thus, the transfer from [the bank] back to [the original seller] does not activate the notice provisions of Section 9-504(3). [Cits.]

“The bank’s liability under Section 9-507(1) for statutory damages must be predicated upon a violation of Sections 9-501 through 9-506. Clearly, when [the bank] had no duty to act under any of these provisions, including Section 9-504(3), no Section 9-507(1) liability attache [d] by reason of its legally meaningless notice of sale.”

The trial court did not err in granting partial summary judgment to the bank upon plaintiff’s claim for OCGA § 11-9-507 (1) damages. However, the case will proceed to trial upon plaintiff’s wrongful repossession claim.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Stokes, Lazarus & Carmichael, William K. Carmichael, C. W. “Tab” Billingsley, Jr., for appellee.


text:
    A93A1654.
    HERNANDEZ v. RESOLUTION TRUST CORPORATION.
    (436 SE2d 534)
   Johnson, Judge.

Southern Federal Savings Association of Georgia conducted a non-judicial foreclosure sale of Julio A. Hernandez’ property under the power contained in a deed to secure debt. Southern Federal’s successor in interest, the Resolution Trust Corporation (RTC), presented a report of the sale and petition for confirmation to the Honorable Jo Ann Bayneum, Chief Fulton County Magistrate Judge, sitting as Presiding Judge of the Superior Court of Fulton County. Judge Bayneum executed an acknowledgment of the report. At a hearing on the confirmation petition, Hernandez claimed the RTC did not properly report the sale because it was not reported to the specific judge to whom the case was assigned, Judge Elizabeth Long, and that Judge Bayneum was not a judge of the Superior Court of Fulton County. Judge Long denied Hernandez’ contentions and confirmed the sale. Hernandez appeals.

1. Hernandez contends that the requirement of OCGA § 44-14-161 (a) that the report of sale must be presented within 30 days of the sale “to the judge of the superior court of the county in which the land is located” means the specific judge to whom the case is assigned and that reporting the sale to the presiding judge is insufficient to comply with the statute. We recognize the confirmation statute is in derogation of the common law and must be strictly construed, Oviedo v. Connecticut Nat. Bank, 194 Ga. App. 626 (391 SE2d 417) (1990), however, we find this contention to be without merit. The statutory language is plain and the clear import of that language is that the report must simply be made to a judge of the superior court of the county in which the land is located and presentation of the report to the presiding judge in this case complied with the statute. This holding is consistent with our decision in Cornelia Bank v. Brown, 166 Ga. App. 68 (303 SE2d 171) (1983), in which we found technical compliance with the statute where the report of sale was made to the judge’s secretary who had the delegated authority to accept petitions in any ministerial manner. Hernandez’ reliance on F.D.I.C. v. M.C. Honea, Jr., Inc., 440 FSupp. 1064 (N.D. Ga. 1977), is misplaced. A review of that decision reveals that Honea stands for the proposition that if the confirmation proceeding is brought in federal court, the report of sale should be made to a federal court judge rather than a judge of the superior court of the county in which the land lies. Id. at 1066.

Decided September 28, 1993

Reconsideration denied October 14, 1993

Fine & Block, Paul R. Jordan, Kenneth I. Sokolov, for appellant.

Parker, Johnson, Cook & Dunlevie, William A. Capp, John A. Thomson, Jr., for appellee.

2. Hernandez contends Judge Long erred in finding Magistrate Judge Bayneum was authorized to accept the report of sale because the order appointing Judge Bayneum to act as a temporary superior court judge is not included in the record of this case and Judge Long could not take judicial notice of Judge Bayneum’s appointment. This contention lacks merit.

Judge Bayneum signed the acknowledgment of the sale as Presiding Judge of the Superior Court of Fulton County. We note that there is “a presumption, in the absence of a showing to the contrary, that a public official, including a trial judge, performed faithfully and lawfully the duties devolving upon him by law.” (Citations omitted.) Morris v. Clark, 189 Ga. App. 228, 229 (1) (375 SE2d 616) (1988). Moreover, Judge Long stated in the final order of confirmation that she was familiar with standing orders of the court appointing Judge Bayneum to serve as a judge of Fulton Superior Court pursuant to OCGA § 15-1-9.1. Under this section, upon a written request for assistance from the chief superior court judge, a judge from another court within the same county may be appointed as a temporary superior court judge and shall discharge all the duties and exercise all the powers and authority of a superior court judge. OCGA § 15-1-9.1 (b) (2), (e). A written designation appointing the substitute judge and defining the scope and tenure of such requested service is on file in the minutes of the superior court clerk’s office in which the service is to be performed. OCGA § 15-1-9.1 (e), (f). Judge Bayneum’s appointment as a temporary Fulton County superior court judge is thus a matter of public record and Judge Long properly took judicial notice of that fact. Merritt v. State, 121 Ga. App. 832, 833 (3) (175 SE2d 890) (1970); Fluker v. State, 187 Ga. 418 (1 SE2d 29) (1939); Perry v. State, 113 Ga. 936, 938 (1) (39 SE 315) (1901). The RTC properly presented the report of sale and petition for confirmation to a superior court judge as required by OCGA § 44-14-161 (a).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.