text:
    A89A0311.
    McCRARY v. THE STATE.
    (381 SE2d 579)
   Carley, Chief Judge.

Appellant was tried before a jury on an indictment charging him with six counts of selling cocaine. On the morning after the jury had begun its deliberations, the jury forewoman reported to the trial court that she had received an anonymous telephone call the previous evening. According to the forewoman, the unknown caller had reported information calculated to evoke sympathy for appellant. The trial court determined that another juror had received a similar anonymous call. When the trial court asked if the two could “put that information quickly out of [their] minds and quickly continue [their] deliberations,” the forewoman responded that she could. The other juror, however, responded that she could but that “it’s hard, real hard. I’ll try my best.” The State then moved for a mistrial. Over appellant’s objection, the trial court granted a mistrial. Appellant subsequently filed a plea of double jeopardy. Pursuant to Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982), appellant appeals directly from the trial court’s order overruling his plea.

We note at the outset that this case does not involve a motion for mistrial predicated upon the alleged bad faith conduct of the State or the trial court or upon the alleged false answers given by a juror during voir dire. Compare Cobb v. State, 246 Ga. 619 (272 SE2d 296) (1980); Williams v. State, 180 Ga. 595, 597 (2) (180 SE 101) (1935). It involves a motion for mistrial predicated upon an alleged improper communication with a juror. “ ‘We think that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution under urgent circumstances, and for very plain and obvious cases. . . . But, after all, [courts] have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office.’ ” Jones v. State, 232 Ga. 324, 327 (206 SE2d 481) (1974).

In Jones v. State, supra at 328, the Supreme Court discussed ‘“[t]he cases in which mistrials have been declared because of suspected juror bias. . . . [Cits.] In each of these cases, after the jury had been impaneled and sworn, the trial judge received information which rendered suspect the ability of one or more of the jurors to reach an impartial verdict. The exercise of the trial judge’s discretion in declaring a mistrial was upheld, and reprosecution was permitted over objections based on the double jeopardy clause. Significantly, in each case, after the trial judge had ascertained that a juror has received an improper communication, the reviewing court did not require the judge to determine whether the communication had in fact prejudiced the juror. Discovery of the harmful communication in itself afforded grounds for mistrial. . . .’ [Cit.]” Jones v. State, supra at 328-329. Accordingly, the trial court, prior to ruling on the motion for mistrial, was authorized but not required to determine whether the improper communications had in fact prejudiced the jurors. The trial court having determined to make that inquiry, the issue becomes whether there was a “manifest necessity” to grant the mistrial in light of the jurors’ responses.

Decided April 14, 1989.

Erion & Exum, Charles T. Erion, for appellant.

Willis B. Sparks III, District Attorney, Wayne G. Tillis, Kimberly S. Shumate, Howard Z. Simms, Assistant District Attorneys, for appellee.

“[A] juror may be found disqualified even though he insists he is not biased; therefore, the juror’s opinion of his qualification is by no means determinative. . . .” Jones v. State, supra at 330. Although the forewoman indicated that the improper communication had not prejudiced her against the State and in favor of appellant, the second juror did not state unequivocally that she had not been biased by the improper communication. Compare Mosley v. State, 184 Ga. App. 582, 583 (2) (362 SE2d 80) (1987). She acknowledged that it would be “real hard” to discount the communication, but that she would “try” to do so. Accordingly, the grant of the motion for mistrial was authorized. This was one of those “ ‘instances where a trial judge has discovered facts during a trial which indicated that one or more members of a jury might be biased against the Government or the defendant. It is settled that the duty of the judge in this event is to discharge the jury and direct a retrial.’ [Cit.]” (Emphasis in original.) Jones v. State, supra at 329.

Since the motion for mistrial was properly granted, it follows that appellant’s plea of double jeopardy was correctly overruled.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: Carley, Chief Judge.

license: Public Domain

text:
    A89A0366.
    WOODRUFF v. THE STATE.
    (381 SE2d 582)
    Decided April 14, 1989.

      Ralph M. Hinman III, for appellant.

      Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of two counts of aggravated child molestation. He appeals from the judgments of conviction and sentences that were entered on the jury’s guilty verdicts.

Appellant moved for a directed verdict of acquittal, contending that the evidence was insufficient to establish venue and that the State had failed to prove that the crimes had occurred within the four-year statute of limitations. He enumerates as error the denial of his motion on both grounds.

The victims were appellant’s two young sons. The evidence established that, at the time of the molestation, appellant and his family were living in a house in Whitfield County. One of the victims specifically testified that he had been molested while at home. The other victim did not testify with as much specificity as his brother but, from the totality of his testimony, it is clear that he too was molested while at home. Accordingly, the evidence as to venue was sufficient. “Evidence of venue, though slight, is sufficient in the absence of conflicting evidence. [Cit.] Venue may be proved by circumstantial as well as direct evidence. The evidence here, direct and circumstantial, was sufficient to prove venue of the crimes in [Whitfield] County.” Loftin v. State, 230 Ga. 92, 93-94 (2) (195 SE2d 402) (1973).

There was no direct evidence that the molestations had occurred within the four-year statute of limitations. There was, however, sufficient circumstantial evidence to authorize a finding that both molestations had occurred within the period of limitations. See generally Peavy v. State, 179 Ga. App. 397 (1) (346 SE2d 584) (1986).

Judgments affirmed.

McMurray, P. J., and Beasley, J., concur.


author: Sognier, Judge.

text:
    A89A0465.
    PHILLIPS v. PLYMALE.
    (381 SE2d 580)
   Sognier, Judge.

D. Buck Plymale Jr. brought suit against Cynthia G. Phillips on a promissory note. Phillips answered and filed motions to dismiss and to implead a third party, which were denied by the trial court. Plymale then filed a motion for summary judgment, which was granted, and Phillips appeals.

The record reveals that in April 1985 appellant purchased undeveloped property from appellee and signed a promissory note secured by a deed to secure debt. In November 1985 appellant sold the property to Double Development, Inc., which assumed payment of appellant’s note to appellee. After that sale, Double Development and appellee entered into an agreement subordinating the assumed note to a $2.5 million construction loan note from Double Development to the First National Bank of Louisville, which was secured by the same property. When Double Development defaulted on the note to appellee, appellee sought payment from appellant, claiming she was still liable on the original note. After several demands, and after this action had been filed, a check in the amount of $17,705 was tendered by appellant’s husband as partial payment on the note, but it was returned by the bank for insufficient funds.

1. Appellant contends the trial court erred by granting summary judgment in favor of appellee because issues of fact remain as to the status of the note after the resale. Appellant argues that the subordination agreement was entered into by appellee and Double Development without appellant’s knowledge or consent, and that because she was not a party to the subordination agreement, it effected a novation of the original note. We do not agree. Appellant’s claim that the subordination agreement was entered into without her knowledge and consent is belied by the record. The contract between appellant and Double Development for resale of the property specifically stated in its special (typewritten) clauses that the sale was “contingent on assumption of first note to [appellee] by buyer” and “contingent of (sic) first note being subordinated to construction loan.” Since appellant signed that contract, her claim that she knew nothing of the subordination agreement is, at best, disingenuous.

While we agree with appellant that the subordination agreement affected her interest because it diminished appellee’s security, we do not agree that Double Development’s assuming payment of appellant’s note to appellee relieved her of primary liability on the note. “ ‘(M)ere acceptance by the obligee of performance by the assignee, or substituted obligor, of the contract is not sufficient to establish novation in the absence of words or conduct tending to show an intention or agreement on the part of the obligee to release the original obligor and extinguish his liability.’ [Cit.]” Worth County Indus. &c. v. Lehigh Valley Indus., 183 Ga. App. 634, 636-637 (1) (359 SE2d 707) (1987). Appellee was not a party to the resale of the property, and appellant has shown nothing to indicate that appellee intended or agreed to release her from her primary obligation on the promissory note when it was assumed by Double Development.

Decided April 14, 1989.

Robert J. Hippie, Thomas A. Soderberg, for appellant.

Cashin & Davis, Johann R. Manning, Jr., for appellee.

“On a motion for summary judgment, the movant carries the burden of proving that there are no genuine issues of fact requiring jury resolution and that he is entitled to judgment as a matter of law. [Cit.] . . . The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against him. [Cit.]” Kelly v. American Fed. Savings &c. Assn., 178 Ga. App. 542-543 (1) (343 SE2d 755) (1986). The record shows appellee proved a prima facie case by showing that appellant signed the promissory note and was now in default. As we have found no merit in the issues raised by appellant in rebuttal, the trial court did not err by granting summary judgment in favor of appellee. See generally Coleman v. McDonald’s Corp., 185 Ga. App. 628 (365 SE2d 282) (1988).

2. Appellant also asserts the trial court erred by denying her motion to add Double Development as a third party defendant. Appellant did not seek to bring in Double Development within ten days after serving her answer, and thus was required to obtain leave of court to do so pursuant to OCGA § 9-11-14 (a). The grant or denial of that motion was thus in the discretion of the trial court. Given the fact that Double Development was then in bankruptcy proceedings and any action against it would have been automatically stayed, allowing appellee to go forward only against appellant; and that OCGA § 9-11-56 permits the trial court to grant summary judgment as to part of a case as well as all, nothing would have prevented the trial court from entering summary judgment against appellant even had her motion to implead Double Development been granted. Accordingly, even assuming the trial court’s denial of appellant’s motion to bring in Double Development was error, it was harmless, and it is well established that “[t]o warrant reversal, alleged error must be harmful. [Cit.]” Black & White Constr. Co. v. Bolden Contractors, 187 Ga. App. 805, 806 (1) (371 SE2d 421) (1988).

3. Appellee has moved this court to award damages against appellant for bringing a frivolous appeal. We agree with appellee that this appeal was brought for purposes of delay only, and award appellee an additional 10 percent damages pursuant to OCGA § 5-6-6.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


author: Carley, Chief Judge. Benham, Judge,

text:
    77284, 77285.
    BUCK’S SERVICE STATION, INC. et al. v. DEPARTMENT OF TRANSPORTATION; and vice versa.
    (381 SE2d 516)
   Carley, Chief Judge.

Appellee/cross-appellant Department of Transportation (DOT) condemned a portion of property which was leased to appellant/crossappellee Buck’s Service Station, Inc. (Buck’s). In addition, certain temporary construction easements were taken. Prior to trial, DOT filed a motion in limine, seeking to preclude Buck’s from introducing certain evidence. The trial court granted DOT’s motion in part and denied it in part and certified its order for immediate review. This court granted Buck’s application for an interlocutory appeal from the partial grant of DOT’s motion in limine. DOT then filed a cross-appeal from the partial denial of its motion in limine.

Case No. 77285.

1. We will address the cross-appeal first.

The trial court denied the motion in limine insofar as DOT sought to preclude the introduction of evidence of consequential damages incurred as a result of the taking of the temporary construction easements. DOT cross-appeals from this ruling.

With regard to this issue, Hillman v. Dept. of Transp., 257 Ga. 338 (359 SE2d 637) (1987) is clearly controlling. Here, as there, “[i]f the condemnee . . . can show that the taking of a portion of his property for [nineteen] months for a construction easement caused some special damage to [its] remaining property, other than the general inconvenience, noise, dust and obstruction of the construction process, then Art. I, Sec. Ill, Par. I requires that the state pay for any diminished value of the remainder. [Cit.]” Hillman v. Dept. of Transp., supra at 340.

Contrary to DOT’s contentions, an asserted insufficiency in the condemnee’s evidence in this regard is not appropriately resolved on a motion in limine. A motion in limine determines the admissibility of evidence. A motion for summary judgment or for a directed verdict would be the appropriate means by which to invoke a ruling as to the sufficiency of the condemnee’s evidence. The trial court did not err in denying DOT’s motion in limine which sought to preclude the condemnee from introducing evidence as to the consequential damages.

Case No. 77284.

2. The trial court granted the motion in limine insofar as DOT sought to preclude the introduction of evidence of Buck’s business losses. It is from this ruling that Buck’s appeals.

With regard to this issue, Hillman v. Dept. of Transp., supra, is not controlling. On its facts, Hillman relates only to the condemnee’s entitlement to recover consequential damages. Business losses is not an element of consequential damages, but an entirely separate element of recoverable damages. “The destruction of an established business is and must be a separate item of recovery.” Bowers v. Fulton County, 221 Ga. 731, 739 (2) (146 SE2d 884) (1966).

If there were no controlling Supreme Court authority regarding the recoverability of business losses, this court would perhaps be authorized to consider the issue of whether the scope of Hillman should be extended beyond consequential damages to include business losses. However, such controlling authority exists and must be applied by this Court. In Housing Auth. of Atlanta v. Southern R. Co., 245 Ga. 229, 232 (1B) (264 SE2d 174) (1980), the Supreme Court held the following to be “a correct charge on the law”: “ ‘[A] mere temporary loss of profits associated with the extinguishment by condemnation of Condemnee’s property interest is not a proper element for consideration in determining just and adequate compensation.’ ” (Emphasis supplied.) Under this “correct charge on the law,” the Supreme Court found that “a reasonable juror could certainly have understood the [trial] court to mean that no recovery should be allowed [the condemnee] merely for an interruption of its business while it moved to another location, but that [the condemnee] had to have irrevocably lost something of value that could not be duplicated elsewhere. The [condemnor] would have to pay for relocation and for that amount of lost business that [the condemnee] would never recover.” (Emphasis supplied.) Housing Auth. of Atlanta v. Southern R. Co., supra at 232 (1B).

Accordingly, regardless of the holding in Hillman as to the recoverability of “temporary” consequential damages, the holding in Housing Auth. is that only “permanent” business losses are recoverable as a separate element of damages. Unless and until the Supreme Court reviews and overrules its holding in Housing Auth., this court and the trial court are bound thereby, and “temporary” business losses are not recoverable by the condemnee. In this case, we have no more authority to fail to follow the holding in Housing Auth. than this Court had in Department of Transp. v. Fitzpatrick, 184 Ga. App. 249 (2) (361 SE2d 241) (1987).

Nevertheless, the trial court did err in granting DOT’s motion in limine as to the issue of business losses. As worded, DOT’s motion and the trial court’s order would have the effect of precluding the condemnee from offering any evidence in support of its recovery of business losses. Here, as in Gunthorpe v. Daniels, 150 Ga. App. 113 (257 SE2d 199) (1979), the exclusion of evidence that was sought and that was granted is too broad. Under existing authority, the condemnee would be entitled to recover permanent business losses and, consequently, would be entitled to introduce evidence of its entitlement to such a recovery. See Housing Auth. of Atlanta v. Southern R. Co., supra. Accordingly, the trial court’s grant of DOT’S motion in limine is incorrect for the reason that it erroneously excluded the introduction of relevant evidence as to permanent business losses.

Judgment reversed in Case No. 77284. Judgment affirmed in Case No. 77285.

Deen, P. J., McMurray, P. J., Birdsong, Sognier, and Pope, JJ., concur. Banke, P. J., Benham and Beasley, JJ., concur specially.

Benham, Judge,

concurring specially.

While I agree with the majority that the trial court erred in granting that portion of DOT’s motion in limine directed to evidence of business losses, I disagree with its decision limiting the condemnee to the introduction of relevant evidence of permanent business losses, and its narrow interpretation of the Supreme Court’s decision in Hillman v. Dept. of Transp., 257 Ga. 338 (359 SE2d 637) (1987). I further believe that its reliance on Housing Auth. of Atlanta v. Southern R. Co., 245 Ga. 229 (264 SE2d 174) (1980), is misplaced, and in light of the Supreme Court’s holding in Hillman, I question the continued viability of Housing Auth. and of this court’s decision in Dept. of Transp. v. Fitzpatrick, 184 Ga. App. 249 (2) (361 SE2d 241) (1987).

Relying on Housing Auth., the majority states that “only ‘permanent’ business losses are recoverable as a separate element of damages” (p. 342), thereby distinguishing permanent damage from temporary damage. However, the Georgia Supreme Court has held that “[t]he [Georgia] [Constitution does not distinguish between permanent and temporary damage.” Hillman at 340. While the issue in Hillman was whether consequential damages could be awarded in a temporary taking, the rationale of the Supreme Court’s decision can and should be applied to the present case, which involves whether business losses can be awarded in a temporary taking. Since the Supreme Court has ruled that the temporary/permanent distinction is unconstitutional, I do not believe we can continue to uphold the distinction.

The majority maintains that we are “bound” by Housing Auth. to hold that temporary business losses are not recoverable by a condemnee. Even if I were to agree (and I do not) that Housing Auth. stands for the proposition that in no case is a condemnee entitled to business losses resulting from a temporary taking, I do not believe that we must blindly follow that case when we have more recent authority, Hillman, from which we can extrapolate a logical answer to the issue now before us. Suppose the Supreme Court, in an armed robbery case, were to hold that grand jury proceedings should have been open to the defendant. Are we unable to apply that ruling to a burglary case, or must we adhere to earlier law and wait for the Supreme Court to apply its ruling to a burglary case, and then a rape case, and then a child molestation case, etc., before we may apply the Supreme Court’s ruling? I think not.

Decided March 6, 1989

Rehearings denied March 31, 1989 and April 17, 1989

Reynolds & McArthur, Charles M. Cork III, for appellants.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Roland F. Matson, Senior Assistant Attorney General, William C. Harris, for appellee.

I agree that the trial court erred in granting that part of the motion in limine concerning business losses (Case No.,77284). However, I cannot agree with the majority that the condemnee is only entitled to permanent business losses. If the condemnee in the case at bar can meet the evidentiary requirements to recover business losses due to a permanent taking (uniqueness, not remote, not speculative) (Dept. of Transp. v. Dixie Hwy. Bottle Shop, 245 Ga. 314, 315 (265 SE2d 10) (1980)), then the condemnee should be entitled to recover the damages, despite the fact that its business loss was due to a temporary taking. Hillman at 340.

Insofar as it can be read to stand for the proposition that only permanent business losses are recoverable, the Supreme Court’s decision in Housing Auth. has been effectively overruled by its later decision in Hillman. That being so, our decision in Dept. of Transp. v. Fitzpatrick must likewise be overruled insofar as it conflicts with Hillman.

I am authorized to state that Presiding Judge Banke and Judge Beasley join in this opinion.


author: Deen, Presiding Judge. Benham, Judge,

text:
    A89A0145. A89A0146.
    BANKS v. THE STATE. OGLETREE v. THE STATE.
    (381 SE2d 548)
   Deen, Presiding Judge.

Appellants were indicted for armed robbery, kidnapping, and aggravated assault in three counts. They were found guilty of kidnapping and two counts of aggravated assault and sentenced to a total of five years’ incarceration plus probation, and were assessed fines totaling $1,500 each. They were also required to enroll in a drug and alcohol program and to seek mental health treatment. On appeal they enumerate as error the trial court’s refusal to grant a mistrial in response to the prosecution’s allegedly improper remarks, and also two allegedly erroneous jury instructions. Held:

1. The trial transcript reveals that defense attorneys made no objection during the prosecutor’s closing argument, during which the allegedly improper “birds of a feather” remark was made, nor did he subsequently request curative instructions. Such conduct would ordinarily amount to a waiver. Tolbert v. State, 180 Ga. App. 703, 704 (350 SE2d 51) (1986). Moreover, it is well settled that in closing argument the prosecutor has considerable latitude as to what inferences may be drawn from the evidence and as to the language he may use in expressing his thoughts, however vivid or overblown it may sometimes be. Callahan v. State, 179 Ga. App. 556 (347 SE2d 269) (1986). Although in the instant case the challenged remarks come perilously close to being improper (see Hall v. State, 180 Ga. App. 881, 884 (350 SE2d 801) (1986); Aldridge v. State, 125 Ga. App. 691 (188 SE2d 835) (1972)), we find no error here.

2. Scrutiny of the record indicates that the trial court took pains to instruct the jury regarding the necessity of considering the evidence of each separate count against each defendant separately and of “arriv[ing] at... a verdict as to each of the defendants on all five of the counts.” Moreover, the verdict itself indicates that the jurors gave separate consideration to each count lodged against each defendant; i.e., one defendant received a directed verdict of acquittal on one count, and the jury acquitted the other on one count. We find no merit in this enumeration.

3. A careful reading of the jury charge in its entirety reveals that, as the State concedes, the trial court did indeed make the alleged slip of the tongue when, late in the charge, he alluded again to the “reasonable doubt” on which, together with correct instructions on presumption of innocence and burden of proof, he had previously given the jury full and accurate instructions. Although it is always unfortunate, and a cause for concern, when such a lapsus linguae occurs, it is difficult to believe, in the context of the charge as a whole and in the face of the ample evidence presented, that this verbal slip — so slight that neither the defense nor the prosecution caught it at the time — contributed to the convictions. See Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976). We find this enumeration devoid of merit.

Judgments affirmed.

Birdsong, J., concurs. Benham, J., concurs specially.

Benham, Judge,

concurring specially.

Appellants’ initial enumeration of error is that the trial court erred in failing, sua sponte, to declare a mistrial based upon the assistant district attorney’s closing argument in which he purportedly put appellants’ character into issue. See OCGA § 24-9-20 (b). In his argument, the assistant D.A. alluded to the fact that one of the victims sold cocaine and dealt in marijuana (the victim had been impeached with his convictions for possession with intent to distribute cocaine and marijuana) and noted that one of the victims was “not the finest of individuals” (that victim had earlier been impeached with his conviction for aggravated assault). The assistant D.A. then commented that “birds of a feather flock together.” Appellants, however, did not object to the closing argument until after the jury was charged.

Decided April 4, 1989

Rehearing denied April 17, 1989

Fennessy, Skipper & Nettum, Richard E. Nettum, for appellants.

John R. Parks, District Attorney, R. Rucker Smith, Assistant District Attorney, for appellee.

I agree with the majority that appellants’ failure to make a timely motion for mistrial precludes our review of appellants’ enumerated error. See Chafin v. State, 246 Ga. 709 (11) (273 SE2d 147) (1980); Bennett v. State, 165 Ga. App. 600 (3) (302 SE2d 367) (1983). However, I am unwilling to condone the assistant district attorney’s remarks as “vivid or overblown inference[s].” The remarks, implying that from the company they kept appellants were not the finest of individuals and might have been involved with drugs, had no place in a closing argument.


author: Deen, Presiding Judge.

text:
    A89A0326.
    PONDER v. THE STATE.
    (381 SE2d 534)
   Deen, Presiding Judge.

The appellant, Frankie Ponder, was convicted of two counts of selling cocaine in violation of the Georgia Controlled Substances Act. On appeal, Ponder’s sole contention is that the trial court erred in denying his motion to disclose the identity of the confidential informant.

Just after midnight on February 6, 1988, an undercover police officer purchased crack cocaine from Ponder in the rest room of a night club. The officer was introduced to Ponder by a David Brown, whom he had met at the bar. The officer was also accompanied by a confidential informant, who afterwards told the officer Ponder’s name. At trial, the officer positively identified Ponder as the man who had sold him cocaine.

On March 5, 1988, another undercover police officer, accompanied by the confidential informant, purchased some crack cocaine from Ponder, from the officer’s unmarked car parked in front of a housing project. Ponder had approached the officer from his side of the vehicle. The informant only advised the officer as to Ponder’s name after the sale. At trial, this officer also positively identified Ponder as the man who had sold him cocaine.

Decided April 3, 1989

Rehearing denied April 17, 1989

Andrews & Seery, S. Andrews Seery, for appellant.

David Brown testified on Ponder’s behalf, and denied either being present at the night club or introducing the undercover officer to Ponder. Ponder also testified and denied selling cocaine to either undercover officer. Held:

“Where an informant is a mere tipster, disclosure of his identity is not required. Thornton v. State, 238 Ga. 160 (2) (231 SE2d 729) (1977). But where the informer is a witness or participant, a request for disclosure requires the trial court to balance the benefits of disclosure to the defendant against the resulting harm to the government. Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1957); Thornton, supra. ‘Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.’ Roviaro, supra, at 62.” State v. Royal, 247 Ga. 309, 312 (275 SE2d 646) (1981).

In the recent case of Moore v. State, 187 Ga. App. 387 (370 SE2d 517) (1988), this court held that disclosure of the informant’s identity was mandated where the informant, other than introducing the undercover officer to the defendant, merely witnessed the drug sale, because the informant was the only witness in a position to amplify or contradict the testimony of the defendant and the police officer and because the informant’s testimony would not be merely impeaching, since the defendant testified. In the instant case, with regard to the sale that occurred at the night club, the informant was not the only witness available to amplify or contradict the testimony of the police officer or Ponder; Ponder adduced the testimony of David Brown for that purpose. Regarding the other drug sale, however, the informant was in a posture indistinguishable from that of the informant in Moore v. State, supra. Accordingly, the trial court is directed to conduct a post-trial, in-camera proceeding as explained in Moore v. State, supra, to determine whether the error of nondisclosure of the informant’s identity was harmless.

Case remanded with direction.

Birdsong and Benham, JJ., concur.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.


text:
    A89A0380.
    NORTHSIDE ENVIRONMENTAL SERVICES, INC. v. NATIONAL BANK OF GEORGIA.
    (381 SE2d 536)
   Deen, Presiding Judge.

In approximately March of 1986, Mrs. Sherry Mashburn was hired as a bookkeeper by appellant Northside Environmental Services, Inc. (Northside), a landscaping contractor. Tony Alexander was president of Northside and the only person authorized to approve or sign checks drawn on either its operating account with Heritage Bank (Heritage) or its payroll account, also with Heritage. Through a clever manipulation of the computer (actually, a “power outage”), Mrs. Mashburn (who was, according to the record, an experienced embezzler) destroyed the firm’s computer-stored general ledger, with the result that checks had to be prepared manually, rather than by computer generation, until such time as the general ledger could be reconstructed and reprogrammed into the computer — a time-consuming process.

The record indicates that subsequent to this incident Mrs. Mash-burn prepared a number of unauthorized checks, either by forging Alexander’s signature or by altering the name of the payee on an authentically signed check. On June 6, 1986, while Alexander was confined to the hospital, Mrs. Mashburn brought to him for his signature a typewritten check drawn on Northside’s operating account and payable to the firm’s payroll account. She took the signed check to her office, where she “lifted” the typed name of the payee (North-side’s payroll account) and typed in the name of her husband. On June 11 she presented the check to appellee National Bank of Georgia (NBG), where she and her husband had a joint checking account in which they routinely kept a fairly high balance. She then withdrew $12,000 in cash from this account.

On June 13, 1986, Heritage Bank notified Northside that its payroll account contained insufficient funds to meet that week’s payroll, and Northside immediately requested that Heritage issue a “stop payment” order on the $12,000 check which supposedly had been deposited in the payroll account. Northside then attempted to reach Mrs. Mashburn at home but instead reached her husband, who told them that she was ill. He professed surprise at the information concerning the check in question, and on June 15 he notified Alexander (who had been discharged from the hospital) that he had found $12,000, in cash hidden in his home and that he supposed it was the missing money taken by his wife, whose illness, he said, was mental or emotional. Meanwhile, Heritage, pursuant to the “stop payment” order, had refused to honor the check and had returned it to Northside with the notation, “Refer to maker.”

On June 16 Mr. Mashburn and Alexander took the cash to Heritage Bank, purchased a cashier’s check for $12,000, and deposited it into Northside’s payroll account. Mashburn shortly thereafter found an additional $3,500 in cash, which he turned over to Northside; subsequent investigation revealed that Mrs. Mashburn had embezzled a total of approximately $35,000 — $40,000, including the amounts of $12,000 and $3,500 which Mr. Mashburn had returned to Northside.

NBG brought an action against Northside to recover the $12,000. Northside counterclaimed for legal expenses, and both sides moved for summary judgment. The motions were denied, but NBG renewed its motion after this court decided Northbrook Property &c. Ins. Co. v. C & S Nat. Bank, 184 Ga. App. 326 (361 SE2d 531), in September of 1987. The Fulton County State Court granted NBG’s renewed motion and also ruled against Northside on its counterclaim. Northside appeals, enumerating as error (1) the denial of its motion for summary judgment; (2) the award of summary judgment to NBG on either of two bases: (a) unjust enrichment of Northside and (b) NBG’s alleged failure to prove that in paying the check it had acted in conformity with reasonable banking practices; and (3) the award of prejudgment interest to NBG from June 16, 1986, to date of judgment. Held:

1. First addressing appellant’s third assignment of error, we note that appellee has conceded that, on the basis of OCGA § 7-4-14, prejudgment interest (if such is appropriate at all) should in the instant case have been computed not from June 16, 1986, but from September 9, 1986, the date on which appellee demanded that appellant repay the $12,000. We further note that, under OCGA § 7-4-15, prejudgment interest on the liquidated sum of $12,000 was properly awarded; only the date on which it began to accrue was erroneous. The portion of the judgment requiring that interest be paid for the period between June 16, 1986, and September 9, 1986, must therefore be amended by the trial court.

2. We agree with appellee that Northbrook, supra, is controlling in the fact situation of the instant case. We held in Northbrook, at 327, that “a loss from the activities of a faithless employee must be borne by the employer rather than the . . . bank . . . ‘The principle followed is that the loss should fall upon the employer as a risk of his business enterprise rather than upon the subsequent holder. . . . [Uniform Commercial Code § 3-405, Official Comment.]’ Only bad faith by a bank prevents [the employer’s] invoking the code section to defeat a claim.” Here, as in Northbrook, we find no indicia of bad faith on the part of the bank, appellee NBG. We find no merit in appellant’s remaining enumerations.

Decided April 3, 1989

Rehearing denied April 17, 1989

Jay E. Loeb, for appellant.

Schwall, Ruff & Goodman, Emory A. Schwall, Lee S. Alexander, for appellee.

Judgment affirmed in part and reversed in part and case remanded for amendment.

Birdsong and Benham, JJ., concur.


text:
    A89A0560.
    ABERNATHY v. THE STATE.
    (381 SE2d 537)
   Deen, Presiding Judge.

The appellant, Janet Abernathy, was convicted of second degree vehicular homicide and no proof of insurance. On appeal, in addition to contending that the evidence was insufficient to support the convictions, Abernathy enumerates as error the denial of her motion to sever and the trial court’s failure to instruct the jury on criminal negligence as the mens rea for misdemeanor vehicular homicide.

The evidence showed that as Abernathy attempted to pull out onto a road from a shopping center parking lot, a motorcycle collided with her car. The motorcyclist died from the injuries sustained in the collision. At the time of the incident, Abernathy presented an insurance card indicating fleet coverage under a policy issued to an Ammie Cary. At trial Cary explained that approximately six months earlier he had discussed the possibility of providing insured transportation for Abernathy if they worked out an arrangement for Abernathy to look after his infirm mother, but emphasized that he had employed her only one day and had not authorized her further use of the card. Cary’s fleet policy did not cover Abernathy’s vehicle. Held:

1. Where a joinder of offenses is based upon the same conduct or transaction, severance lies within the discretion of the trial court, who must consider “ ‘whether in view of the number of offenses charged and the complexity of the evidence to be offered, the triers of fact will be able to distinguish the evidence and apply the law intelligently to each offense.’ ” Thomas v. State, 184 Ga. App. 318, 320 (361 SE2d 280) (1987). The trial court did not abuse its discretion in denying Abernathy’s motion to sever in this case.

2. The trial court gave the standard jury charge on intent, but denied Abernathy’s request for a jury instruction on criminal negligence as the mens rea for second degree homicide by vehicle, on the basis that criminal negligence was applicable only to first degree homicide by vehicle.

“Homicide by vehicle in the first degree and homicide by vehicle in the second degree share the same general elements, to wit: a homicide resulting from the commission of a traffic offense. The only difference between first and second degree vehicular homicide is in the culpability which attaches to the predicate traffic offense . . . ‘ “[A] distinction is made in the punishment. The former constitutes the offense with greater enormity.” ’ ” Hayles v. State, 180 Ga. App. 860, 861 (350 SE2d 793) (1986).

OCGA § 16-2-1 provides that “[a] ‘crime’ is a violation of a statute of this State in which there is a joint operation of an act or omission to act and intention or criminal negligence.” In Johnson v. State, 170 Ga. App. 433 (317 SE2d 213) (1984), after noting OCGA § 16-2-1, this court held that a jury charge on criminal negligence was applicable to homicide by vehicle. Although Johnson involved first degree vehicular homicide, nothing in that opinion suggests a basis for limiting a charge on criminal negligence to only first degree vehicular homicide. Since, as noted in Hayles, the only practical difference between first and second degree homicide by vehicle is the seriousness of the predicate traffic offenses, we conclude that a charge on criminal negligence is also applicable to second degree homicide by vehicle.

The jury charge actually requested by the appellant defined criminal negligence as “such recklessness or carelessness, resulting in injury or death, as imports a thoughtless disregard of consequences or a needless indifference to the safety and rights of others and a reasonable foresight that injury would result.” That requested charge was taken from Johnson, supra, and is correct as far as it goes, but it is incomplete. This court in Johnson also pointed out that “ ‘(t)he violation of the safety statute regulating the use of highways does not constitute criminal negligence, unless such violation is intentional, wilful, or wanton, or unless the violation, though unintentional, is accompanied by recklessness or is under circumstances from which probable death or injury to others might be reasonably anticipated.’’ ” (Emphasis supplied.) Because the requested jury charge did not fully apprise the jury of when a traffic violation constitutes criminal negligence, the refusal to give it provides no cause for new trial. Daniels v. State, 184 Ga. App. 689 (1) (362 SE2d 775) (1987).

3. The evidence was sufficient to support the convictions. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Decided April 3, 1989

Rehearing denied April 17, 1989

Kathleen J. Anderson, Donna L. Avans, for appellant.

Ken Stula, Solicitor, Dean Broome, Assistant Solicitor, for appellee.


text:
    A89A0700.
    UNITED STATES FIDELITY & GUARANTY COMPANY v. MACON-BIBB COUNTY ECONOMIC OPPORTUNITY COUNCIL, INC.
    (381 SE2d 539)
   Deen, Presiding Judge.

As of January 1, 1983, the appellee, Macon-Bibb County Economic Opportunity Council, was insured against losses sustained through fraudulent or dishonest acts committed by certain employees under two fidelity bonds issued by the appellant, United States Fidelity & Guaranty Company. Sometime between 1983 and 1985, the appellee’s executive director allegedly misappropriated $25,557.12. In May 1985, at the instigation of the governor’s office, the local sheriffs department and district attorney began an investigation into possible misappropriation, leading to the indictment and trial of the executive director in February 1986. During the investigation, the appellee’s records were seized, and an audit was conducted. The district attorney’s office did not divulge to the appellee any of the results of the investigation before the trial. The appellee’s executive director was acquitted on the criminal charges.

Following the trial and acquittal of the executive director, who had been replaced in September 1985, the appellee hired the same accounting firm that had completed the audit for the district attorney’s office, to complete another audit. The appellee received the results of the audit in February 1987. The appellee submitted a notice and proof of loss to the appellant on May 14, 1987, and commenced this action in October 1987 when the appellant denied the claim.

The fidelity bonds in question provided that “[u]pon knowledge or discovery of loss under this bond, the insured shall (a) give notice thereof to the underwriter as soon as practicable and (b) file detailed proof of loss, duly sworn to, with the underwriter within four months after the discovery of loss.” The bond also contained a limitation period for filing suit of one year beginning with the date the insured discovered the loss. Claiming that the appellee had discovered the loss at least by the date of the trial in February 1986, the appellant moved for summary judgment on the bases that the appellee had not given timely notice of loss and that the action was barred by the contractual-limitations period. This interlocutory appeal follows from the trial court’s denial of the appellant’s motion. Held:

Denied April 3, 1989

Rehearing denied April 17, 1989

Anderson, Walker & Reichert, R. William Buzzell II, Loretta L. Pinkston, for appellant.

Lonzy F. Edwards, for appellee.

The dispositive issue in this case is when the appellee discovered its loss. The chairman of the appellee’s board acknowledged that from a common-sense standpoint, by the time of the February 1986 prosecution and trial of the former executive director, the appellee felt it had sustained a loss. That suspicion did not become knowledge of a loss, sufficient to enable the appellee to satisfy the fidelity bond’s requirement of filing a detailed proof of loss, until receipt of the auditor’s report in February 1987. The investigation and prosecution of the appellee’s former executive director, considering the fact that he was acquitted, did not provide that degree of knowledge. Accordingly, the operative date of discovery of loss was the appellee’s receipt of the auditor’s report in February 1987, and the trial court properly denied the appellant’s motion for summary judgment.

Judgment affirmed.

Birdsong and Benham, JJ., concur.


text:
    A89A0042.
    ROGERS v. THE STATE.
    (381 SE2d 545)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of violating former OCGA § 40-6-391 (a) (4), which prohibited driving with a blood alcohol level of .12 percent or more. He appeals the judgment of conviction and sentence entered on the jury verdict.

Appellant’s sole enumeration is that the trial judge erred in refusing to give a requested instruction on the defense of coercion. OCGA § 16-3-26 provides that “[a] person is not guilty of a crime, except murder, if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.” Appellant testified that, while sleeping in his car, he was awakened by headlights and drove away out of concern for his safety without realizing that he had been startled by a police vehicle. This is not evidence that he was forced to drive involuntarily “ ‘under fear of threats or menaces involving a direct danger to life or great bodily injury where the danger is abated only by the performance of the criminal act.’ [Cit.]” Stewart v. State, 177 Ga. App. 681 (340 SE2d 283) (1986). The trial court did not err in refusing to give the requested charge on coercion, there being no evidence to support it. See generally Young v. State, 163 Ga. App. 507, 508 (3) (295 SE2d 175) (1982).

Decided April 3, 1989

Rehearing denied April 19, 1989

Gregory Z. Schroeder, for appellant.

Ralph T. Bowden, Jr., Solicitor, Gary D. Bergman, Assistant Solicitor, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A0166.
    JOHNSON v. THE STATE.
    (382 SE2d 435)
    Decided April 3, 1989
    Rehearing denied April 19, 1989.
    Alexander Johnson, pro se.

      Sam B. Sibley, Jr., District Attorney, Danny L. Durham, Assistant District Attorney, for appellee.
   Deen, Presiding Judge.

The appellant, Alexander Johnson, was convicted of two counts of aggravated assault, stemming from an incident when he shot his wife five times and his sister-in-law once. This pro se appeal was docketed in this court on October 5, 1988. The appellant’s brief and enumeration of errors were due on October 25, 1988. No filing has been made, but we nevertheless decline to dismiss this pro se appeal of a criminal defendant. See Conyers v. State, 183 Ga. App. 591 (359 SE2d 454) (1987).

We have thoroughly reviewed the record and transcript on appeal and find no reversible error. The evidence authorized a rational trier of fact to find Johnson guilty of two counts of aggravated assault beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong and Benham, JJ., concur.


author: Pope, Judge.

text:
    A89A0180.
    LLOYD v. HODGE.
    (381 SE2d 540)
   Pope, Judge.

Appellant John V. Lloyd appeals the trial court’s order dismissing his original notice of appeal pursuant to OCGA § 5-6-48 (c), based on the unreasonable and inexcusable delay in the transmission of the record to the appellate court resulting from appellant’s failure to pay the costs of preparing the record in a timely manner.

The pertinent facts are not in dispute: On November 25, 1987, the trial court dismissed appellant’s claims against appellee on the ground that the claims asserted were in the nature of a compulsory counterclaim to a pending action. On December 16, 1987, appellant filed a notice of appeal from the trial court’s order. Thereafter, on December 23, 1987, the clerk of the superior court, via certified mail, sent appellant the bill for the preparation of the record on appeal. Costs were not paid and on May 9, 1988 appellee filed a motion to dismiss the appeal. Appellant responded to appellee’s motion on June 7, 1988, and costs were paid on June 9, 1988. Following the requisite hearing, the trial court entered an order dismissing the appeal; the trial court also awarded attorney fees in the amount of $125 to appellee. Held:

“[OCGA § 5-6-48 (c)] provides, in part, that the trial court may dismiss an appeal where delay in transmission of the record is both unreasonable and inexcusable and caused by the failure of a party to pay costs in the trial court or file [a] pauper’s affidavit. [Cits.] ‘The trial court’s decision on this issue will be reversed only for an abuse of discretion.’ [Cit.]” Compher v. Ga. Waste Systems, 155 Ga. App. 819, 820 (1) (273 SE2d 200) (1980).

Appellant, an attorney who is proceeding pro se, does not dispute that he received the bill for costs, as evidenced by his signature on the certified mail receipt. Appellant argues, however, that he should be accorded special lenience because he was not actively engaged in the practice of law at the time he received the bill of costs from the clerk. However, as the trial court noted, appellant is a graduate of Emory Law School and has been a member of the Georgia Bar since 1972. Appellant failed to pay the costs of preparing the record on appeal for approximately five and one-half months. Under these circumstances, the trial court did not err in finding the delay in transmitting the transcript to be unreasonable, and to be inexcusably caused by appellant’s failure to pay costs. The appeal was properly dismissed. See, e.g., Typo-Repro Svcs. v. Bishop, 188 Ga. App. 576 (1) (373 SE2d 758) (1988); Bouldin v. Parker, 173 Ga. App. 526 (1) (327 SE2d 760) (1985); McDonald v. Garden Svcs., 163 Ga. App. 851 (295 SE2d 551) (1982); cf. Compher, supra.

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.

Decided April 3, 1989

Rehearing dismissed April 19, 1989.

John V. Lloyd, pro se.

William E. Dillard III, John M. Tatum, for appellee.


text:
    A89A0185.
    CATO et al. v. GILLESPIE.
    (381 SE2d 542)
   Carley, Chief Judge.

In this medical malpractice action, a jury trial resulted in a verdict in favor of appellee-defendant and appellant-plaintiffs moved for a new trial. Included as a ground of appellants’ motion was an allegation of “improper conduct” in that, “prior to the commencement of this action [,] at least one juror contacted an associate of the law firm employed by [appellee], and that associate advised that juror to attend jury service because the case was a medical malpractice case.” Appellants appeal from the trial court’s denial of their motion for new trial.

The trial court’s failure to grant the motion for new trial on the ground of “improper conduct” is appellant’s sole enumeration of error. The evidence shows the following: Dr. Roger Seklecki was summoned for jury service. Being a sole practitioner, he had some concern about his patients’ care while he served as a juror. He phoned a friend to ask whether he had grounds for seeking to be excused from jury service. The friend happened to be an associate in the law firm that was representing appellee. The associate advised Dr. Seklecki that he would not be given special consideration simply because he was a medical professional and that he would most likely have to serve. At this point, the associate was completely unaware that Dr. Seklecki was a prospective juror in the trial of a case in which his law firm was representing appellee. When the associate did subsequently learn that the case against appellee had been scheduled for trial, he telephoned Dr. Seklecki. The associate told him only that it was a medical malpractice case that was set to be tried and that, as a medical professional, it was unlikely that he would be chosen as a juror for such a case. The associate did not mention the names of the parties to the action and did not discuss the facts of the case. The sole purpose of the second conversation was, according to the associate, merely to relieve Dr. Seklecki’s concerns about what effect being called for jury service might have on his practice. After unsuccessfully seeking to be excused, Dr. Seklecki appeared for jury service. Dr. Seklecki was not a member of the jury panel of 24 from which the 12 jurors who actually tried the case were selected. He was one of seven potential alternate jurors, but appellants used one of their strikes against him. None of the three alternate jurors who were selected ever sat on the jury.

Decided April 3, 1989

Rehearing denied April 19, 1989

Neal & Boone, Jack E. Boone, Jr., for appellants.

Fulcher, Hagler, Reed & Obenshain, Gould, B. Hagler, for appellee.

On this evidence, the trial court clearly did not err in denying appellant’s motion for new trial on the ground of “improper contact” between Dr. Seklecki and the associate in the law firm representing appellee. “ ‘(T)he evidence . . . affirmatively reveals that the [associate] and the [potential] juror did not converse concerning the case or in reference to any matter that could have affected a fair trial of the same. This being a civil case, the trial judge did not commit reversible error in denying the motion. [Cits.]’ [Cit.]” Glennville Wood Preserving Co. v. Riddlespur, 156 Ga. App. 578, 581 (3) (276 SE2d 248) (1980). Moreover, even assuming that the innocuous pretrial contact were grounds for disqualification of Dr. Seklecki from service as a juror, no reversible error would be shown. Dr. Seklecki’s “name was not called before the twelve venirepersons who tried the case were selected, and no alternate actually sat on the jury; therefore, any error in qualifying [him] as a prospective juror was harmless.” Wilcox v. State, 250 Ga. 745, 758 (6) (301 SE2d 251) (1983), overruled on other grounds, Harris v. State, 255 Ga. 464 (339 SE2d 712) (1986).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


text:
    A89A0424.
    BROWN v. THE STATE.
    (381 SE2d 543)
   Deen, Presiding Judge.

Gerald E. Brown brings this appeal from his conviction of DUI.

1. The evidence showed that the police officer who stopped appellant after noticing his vehicle weaving in the road requested that the accused take some field sobriety tests and a breath test. He agreed to submit to an intoximeter test, and the officer testified that three attempts to give a breath sample failed because appellant was unable to blow hard enough into the machine. The Intoximeter 3000 machine produced a print-out after the third attempt which read “test refused.”

Brown first contends that the court erred in permitting the police officer to testify as to the results printed on the print-out and in not requiring it to be produced. The transcript reveals that appellant made no objection to this testimony when it was first given and only raised the issue of the results printed on the tape after the witness had been extensively cross-examined. “It is too late to urge objections to the admission of evidence after it has been admitted without objection.” Reynolds v. State, 168 Ga. App. 555, 556 (309 SE2d 867) (1983); Miller v. State, 158 Ga. App. 21 (279 SE2d 289) (1981). An objection to the admission of the test results is waived when the defendant fails to object. Ford v. State, 256 Ga. 375 (349 SE2d 361) (1986). As no objection was ever raised in the court below to the witness’ observation of appellant’s attempts to give a breath sample, the issue will not be considered on appeal. Buckner v. State, 186 Ga. App. 376 (367 SE2d 277) (1988).

Appellant further argues that the results of the test should have been furnished to him pursuant to his pre-trial discovery motion. We disagree; there was nothing to discover under OCGA § 17-7-211. Looney v. State, 180 Ga. App. 693, 694 (350 SE2d 29) (1986). In Looney the operator testified from a checklist that there were no results; in the instant case the operator testified from memory as to her observations that the accused gave an insufficient sample for the machine to take a reading and that she observed it print out “test refused” after his third attempt. This print-out was furnished to the defendant with his traffic citation. We find no error.

2. The trial court did not err in failing to instruct the jury that they were authorized to find that the defendant had not refused the state-administered test because he had not made a request for such a charge. Wallace v. State, 188 Ga. App. 77 (371 SE2d 914) (1988).

3. As appellant withdrew his objection to the trial court’s giving of the State’s request to charge number 2 after the court offered to recharge the jury on that point, he has waived the issue on appeal in the same way as if he had responded negatively to the court’s inquiry as to an objection to charge or had failed to raise such an objection when asked. See Robinson v. State, 176 Ga. App. 18 (335 SE2d 303) (1985).

4. The trial court did not err in failing to instruct the jury as to the weight to be given to expert testimony because no expert testified at trial. The police officer who testified did not qualify as an expert, but merely testified as to her training, her experience in administering certain tests, and her observations.

Judgment affirmed.

Birdsong and Benham, JJ., concur.

Decided April 3, 1989

Rehearing denied April 19, 1989.

Richard G. Harwell, Sr., Curtis R. Richardson, for appellant.

Ralph T. Bowden, Jr., Solicitor, Debra J. Blum, N. Jackson Cotney, Jr., Assistant Solicitors, for appellee.


author: Banke, Presiding Judge.

text:
    A89A0426.
    PATTERSON v. THE STATE.
    (381 SE2d 754)
   Banke, Presiding Judge.

Barbara Patterson appeals her convictions of (misdemeanor) obstruction of a law enforcement officer (OCGA § 16-10-24 (a)), impersonating an officer, and speeding.

After being stopped for speeding by an officer of the Lake City Police Department, the appellant exited her car and began to approach the police vehicle. The officer testified that he asked the appellant to remain where she was, whereupon she responded with a “verbal tirade” of abusive language and claimed to be an Atlanta police officer. He stated that the appellant continued to refuse to comply with his instructions that she leave the road and return to her car, although, in his opinion, her presence in the roadway posed a safety hazard to both of them. He then advised her that she would be arrested for obstructing an officer if she continued to disobey. Several minutes later, the chief of police arrived on the scene in response to the first officer’s call for assistance; and the two officers arrested the appellant and removed her from the roadway. At a subsequent bond hearing, the appellant informed the magistrate that she was a City of Atlanta police officer; however, it was shown at trial that she was not actually a police officer, although she was employed by the City of Atlanta Police Department in a civilian capacity as a crime scene technician. Held:

1. The appellant challenges the sufficiency of the evidence to support her conviction of obstructing an officer. The offense is committed by “knowingly and willfully obstructing] or hinder [ing] any law enforcement officer in the lawful discharge of his official duties. . . .” OCGA § 16-10-24 (a). “In order to prove obstruction of an officer, there must be some evidence of forcible resistance or opposition to the officer in the performance of his duties.” Samples v. State, 151 Ga. App. 179 (259 SE2d 178) (1979). Whether the actions of a defendant actually had the effect of hindering or impeding the officer is a decision for the trier of fact. Sapp v. State, 179 Ga. App. 614 (1) (347 SE2d 354) (1986). We hold that the evidence in the present case was sufficient to enable a rational trier of fact to find the appellant guilty beyond a reasonable doubt of the offense of obstructing an officer. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 3, 1989

Rehearing denied April 19, 1989

Janet G. Scott, for appellant.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant District Attorney, for appellee.

2. Prior to trial, the appellant filed a Brady motion requesting access to the personnel records of the two arresting officers, “showing the reason for leaving any previous law enforcement employment” and also “any disciplinary action taken in the course of their . . . employment.” On appeal, she contends that the trial court erred in failing to order the production of these files for inspection in camera.

“When the defense seeks to discover the personnel files of an investigating law enforcement officer, some showing of need must be made.” Cargill v. State, 255 Ga. 616, 638 (23) (340 SE2d 891) (1986). See also Taylor v. State, 182 Ga. App. 494 (1) (356 SE2d 216) (1987). Because the appellant failed to establish how the officers’ files were relevant or material to her guilt or innocence, the trial court did not err in refusing to order the production of these documents.

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A89A0445.
    BUTLER v. FIRST FAMILY MORTGAGE CORPORATION OF FLORIDA.
    (381 SE2d 551)
   Banke, Presiding Judge.

The appellee initiated a dispossessory action against the appellant in magistrate court, claiming to have acquired ownership of the property in question at a foreclosure sale. The appellant, acting pro se, filed an answer alleging that the foreclosure was a nullity because he had filed a Chapter 13 bankruptcy petition on the day before the foreclosure sale. The appellant failed, however, to include any reference to the alleged bankruptcy proceeding by case number or to provide any documentation indicating that such a proceeding was in fact pending.

The magistrate court granted a writ of possession to the appellee, and the appellant thereafter appealed to the State Court of Fulton County. That court dismissed the appeal on the basis of evidence presented by the appellee showing that, in dismissing a previous bankruptcy petition filed by the appellant, the bankruptcy court had enjoined the appellant from filing another such petition during the relevant time period. Additionally, the state court ordered the appellant to make payments of $325 per month into the registry of the court during the pendency of any appeal or further proceedings in the case. This appeal followed. Held:

Decided April 5, 1989

Rehearing denied April 19, 1989

Myron L. Butler, pro se.

McCalla, Raymer, Padrick, Cobb & Nichols, William A. Broughman, for appellee.

1. The appellant has failed to provide this court with a transcript of the proceedings below, and the record before us establishes no basis for a reversal of the court’s judgment. Where no transcript is provided, it is presumed that the findings of the trial court were supported by the evidence. See Hunnicutt v. Hunnicutt, 182 Ga. App. 578 (356 SE2d 679) (1987).

2. The appellee has moved this court to assess a 10-percent penalty against the appellant pursuant to OCGA § 5-6-6 for filing a frivolous appeal. The judgment below does not, technically speaking, contain any award of damages against the appellant on which such a penalty could be predicated. However, we must agree with the appellee that there was no arguable merit to the appeal, and we consequently find it appropriate to assess a penalty against the appellant pursuant to Rule 26 (b) of this court for filing a frivolous appeal. The state court is directed to enter judgment against the appellant in the amount of $200 upon the return of the remittitur in the case.

Judgment affirmed with direction.

Sognier and Pope, JJ., concur.


text:
    76129.
    KAHN et al. v. COLUMBUS MILLS, INC. et al.
    (382 SE2d 437)
   Sognier, Judge.

In Columbus Mills v. Kahn, 259 Ga. 80 (377 SE2d 153) (1989), the Supreme Court reversed the judgment of this court in Kahn v. Columbus Mills, 188 Ga. App. 90 (371 SE2d 908) (1988). Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

Carley, C. J., Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Pope, Benham and Beasley, JJ., concur.

Decided April 19, 1989.

Thomas R. Burnside, Jr., James B. Wall, for appellants.

Frank C. Jones, Nolan C. Leake, David F. Guldenschuh, for appellees.


author: Birdsong, Judge.

text:
    A89A0085.
    JACKSON v. THE STATE.
    (381 SE2d 759)
   Birdsong, Judge.

Norris Jackson was convicted by jury of violating the Georgia Controlled Substances Act (OCGA Title 16, Chapter 13 et seq.), and sentenced to serve 30 years. He brings this appeal enumerating as error the refusal of the trial court to give charges on the affirmative defense of aiding a law enforcement officer in the performance of such duties by acting as an agent for the officer in undercover drug activities. Held:

The only evidence relevant to the alleged affirmative defense arose as follows. The GBI undercover agent was assigned to work in the Lamar County area. He made contact with a drug dealer in Lamar County who eventually revealed that larger amounts of cocaine could probably be obtained from a person who subsequently was identified as Norris Jackson. The agent spoke by telephone on numerous occasions with Jackson at the telephone number first disclosed by the initial contact. During those conversations, Jackson disclosed that he (Jackson) already knew the agent by having observed the activities of the undercover agent when dealing in Lamar County with other drug dealers. Thus, Jackson had no compunction in meeting with the undercover agent in order to negotiate a sale of a larger amount of cocaine. These initial conversations clearly indicated to the agent that Jackson knew the identity of the agent by physical appearance only and not as a law enforcement officer. A meeting was set for the sale and purchase of a quarter of an ounce of cocaine for $535. The meeting was effectuated in Spalding County. The only information exchanged at that first meeting was the exchange of first names — Bob (the agent) and Norris (the appellant). All other conversation related to the means and directions of traveling to the site of the sale. At no time was there any indication at this first meeting that there was knowledge by Jackson that he was dealing with an agent or that the agent was in any unusual degree of personal danger.

A week later, a second meeting was set to effectuate a second and separate uncharged sale of cocaine, on this occasion a half-ounce of cocaine for $950. The agent was very reluctant to give Jackson the sum of $950 to pay for the one-half ounce of cocaine, apparently from the same seller as on the first occasion. The agent did in fact deliver to Jackson the sum of $950 at this second meeting. Jackson disappeared with this money and never returned the money nor the one-half ounce of cocaine. It was developed on cross-examination of the agent that during the conversations between the agent and Jackson evolving at the second meeting, the agent became aware that Jackson suspected the agent’s undercover status. The agent, however, denied that Jackson ever said or implied that he (Jackson) felt led to or impelled to cooperate with the agent in law enforcement work. It was only at the second meeting that Jackson indicated he knew the agent was a law enforcement officer and that he (Jackson) “was suspect or liable for what he was doing.”

Decided April 19, 1989.

Thacker & Thacker, Louis C. Thacker, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Anne Cobb, Assistant District Attorney, for appellee.

Based upon this state of the evidence, we are satisfied that the issues of affirmative defense (confession and avoidance) in that Jackson rendered assistance to the agent while the agent was hindered in the performance of his duties or whose life was endangered by another and thus ultimately acted as agent for his principal (the law enforcement officer) simply is not raised, even remotely, in regard to the act charged, i.e., the first sale. Pretermitting the question of the sufficiency of the evidence to establish an issue that Jackson later concluded he was working with or for a law enforcement officer in relation to a subsequent and uncharged attempted purchase of cocaine, there simply is no credible evidence giving rise to such an issue as to the first and charged sale of cocaine.

The instructions of a trial court in a criminal case must be tailored to the charge in the indictment and adjusted to the evidence admitted in court. Walker v. State, 146 Ga. App. 237, 244 (246 SE2d 206). An instruction can only stand upon a base founded in the evidence. If there is no evidence giving rise to an issue, the trial court does not err in failing to give such a charge. Pulliam v. State, 236 Ga. 460, 466 (224 SE2d 8); Nuckles v. State, 137 Ga. App. 200, 204 (223 SE2d 245).

Judgment affirmed.

Deen, P. J., and Benham, J., concur.


author: Beasley, Judge.

text:
    A89A0153.
    EVANS v. THE STATE.
    (381 SE2d 760)
   Beasley, Judge.

Evans was indicted for rape, OCGA § 16-6-1, and two counts of aggravated sodomy, OCGA § 16-6-2 (a), against the same victim. He was acquitted of the rape charge and of the count of aggravated sodomy accusing him of committing cunnilingus on the victim against her will. He was convicted of the remaining charge of aggravated sodomy by forcing the victim against her will to perform fellatio on him. His motion for new trial was denied.

1. As to the general grounds, see Lewis v. State, 186 Ga. App. 92 (1) (366 SE2d 305) (1988); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988); Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988); see also Davis v. Carter, 100 Ga. App. 831 (2) (112 SE2d 319) (1959) re civil cases. The evidence is construed so as to uphold the verdict. Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985).

At approximately 11:00 p.m., Evans offered to give the victim a ride home in his truck/van. The victim accepted the offer of a ride because she was acquainted with Evans as her neighbor and had in fact that morning borrowed $15 from him. After she got in Evans’ vehicle, the victim realized that Evans was driving in the wrong direction. She tried to escape but Evans would not let her out. He repeatedly beat her with a stick. Evans parked his vehicle in a field down the road from his apartment. He tore the victim’s clothes off and forced her to perform oral sex on him. After the attack, Evans passed out or fell asleep and the victim managed to get away. The victim sustained swelling and tenderness over her left eye, a laceration over her right shoulder, and some abrasions over her left knee.

The police located Evans’ vehicle parked in the field. They found the naked Evans passed out or asleep in the back of the vehicle. Evans remained unconscious for approximately a half hour. Articles of the victim’s clothing were found inside and outside Evans’ vehicle.

Evans admitted giving the victim a ride but denied any sexual contact with her. His version was that the victim was “trying to sell me her body,” that she had ripped off her own clothes, that she was near passing out, and that while he waited for her to pass out, he took his clothes off to make her think he was going to have sex with her. He further contended that he had been “set-up,” that the victim had him arrested so his home could be burglarized later that evening.

“It is the function of the jury to determine the credibility of the witnesses, including that of the defendant. The jurors must weigh and resolve any conflicts presented by the evidence.” King v. State, 157 Ga. App. 733, 734 (1) (278 SE2d 491) (1981). See OCGA § 24-9-80. The jury resolved the conflicting versions of the events against the defendant, and the evidence was sufficient to enable any rational trier of fact to find defendant Evans guilty of aggravated sodomy beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The trial court was not required by law to afford a new trial.

2. Appellant enumerates error in the overruling of his objection to a “non-responsive, gratuitous, and prejudicial” statement by an investigating detective called as a State’s witness, in that the court refused to admonish the witness.

In the first place, appellant cites no authority to support the contention that this was error, and that it was prejudicial to the point of requiring a new trial. Rule 15 (c) (2) would be applicable. Insofar as there is argument, we address it.

The State asked the detective to describe clothing found in the course of his investigation. The detective prefaced his response by explaining, “Certainly. And if you’ll bear with me, I’ve had some seven rape calls since midnight. And this is all starting to run together.” The defense objected on the basis that the statement was not responsive and prejudicial but did not elaborate how this was so and asked that the witness be admonished. The court stated that it did not think the response was prejudicial, that it had nothing to do with the case, and that the detective was simply saying he had been busy and to bear with him. Defendant did not lodge further objection.

Appellant now maintains that the court allowed the trial to become tainted by the perception of a sea of sexual attacks on women which denied him a fair trial.

Appellant’s objection at trial was too general and vague to present any question for determination by the trial court. Moreover, appellant cannot now raise and request a ruling on a ground of argument that he did not make below. See Croom v. State, 165 Ga. App. 676, 677 (3) (302 SE2d 598) (1983). More significantly, as the trial court noted, it was clear that the detective’s comments were merely a request for the court and jury to be patient while he sought to gain organization and focus on the case at hand. Although the statement was unresponsive and irrelevant, the court made clear that the detective’s statement had no bearing on the case on trial. The fact that the jury returned verdicts of not guilty on the rape charge and on the other aggravated sodomy charge belies appellant’s late argument that the statement prejudiced the jury so that it could not render an untainted determination.

3. Appellant contends that the trial court erred in overruling his objection to certain remarks made by the State in closing argument which he contends constituted a personal attack on defense counsel by accusing counsel of suborning perjury. He urges that the comments violated the Code of Professional Responsibility and tainted the trial.

During the course of the trial, defendant attempted to develop the defense that the incident was a setup so that his apartment could be broken into after his arrest. In this regard he introduced a certified copy of a ten-year-old burglary conviction of the victim’s.

During closing argument, the assistant district attorney commented on the victim’s burglary conviction and the setup defense: “. . . Let’s talk about reality. I suggest to you that [defense counsel] saw this conviction and said aha, this is the scenario. This is what we’re going to say. This will make it work.” Defense counsel interjected: “Your honor, she’s inferring that I found this and made up some sort of story. I take offense at that, your honor.” The court overruled the “objection” and instructed the State to proceed.

Assuming that the defense’s interjection constituted an objection, “““[a] mere objection to alleged improper argument of counsel, without more, is not sufficient to invoke a ruling of the court; and in the absence of a specific motion either for a mistrial, or that the jury be instructed to disregard the argument, it was not error to fail to grant a mistrial or to instruct the jury.’ [Cit.]” [Cit.]’ [Cit.]” Jordan v. State, 172 Ga. App. 96, 98 (4) (322 SE2d 106) (1984).

4. Appellant contends that the trial court erred in charging the jury on “consent.” Again without benefit of any supporting authority, he argues consent was not an issue in the case since he denied sexual contact with the prosecutrix, that the instruction was harmful because it impermissibly suggested that sexual intercourse did indeed occur, and that the jury could have erroneously applied the “consent issue” to the aggravated sodomy charge resulting in his conviction.

Evans was charged with rape. The references to consent in the court’s charge were as part of the definition of the crime of rape. See OCGA § 16-6-1. Instruction on consent in this regard was required “since lack of consent is a necessary element of the offense of rape.” Hardy v. State, 159 Ga. App. 854, 857 (285 SE2d 547) (1981).

Moreover, consent is also at issue in a prosecution for aggravated sodomy. See OCGA § 16-6-2 (a); see also Hines v. State, 173 Ga. App. 657, 658 (2) (327 SE2d 786) (1985) (non-precedential); Riddlehoover v. State, 153 Ga. App. 194 (1) (264 SE2d 666) (1980).

5. Appellant contends that the trial court erred in charging the jury on voluntary intoxication because it was not at issue in the case in that he did not claim intoxication as a defense. He maintains that by giving the charge the court suggested that he committed the acts and that the jury could not excuse him simply because he was drunk.

There was substantial evidence that Evans had been drinking at the time of the incident, including his own admission that he had been drinking a couple of beers. The evidence therefore supported the appropriateness of the instruction on voluntary intoxication even though Evans did not rely on it as a defense. Robinson v. State, 258 Ga. 279, 281 (4) (368 SE2d 513) (1988).

Decided April 19, 1989.

J. Robert Joiner, for appellant.

Lewis R. Slaton, District Attorney, R. Andrew Weathers, Joseph J. Drolet, Constance C. Russell, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A0411.
    MORGAN v. THE STATE.
    (381 SE2d 583)
   Sognier, Judge.

Willie George Morgan appeals from the trial court’s denial of his motion to withdraw a plea of guilty to voluntary manslaughter.

The record reveals that appellant was indicted for murder in the shooting death of his wife. On the scheduled trial date, appellant’s counsel moved for a continuance on the ground that he had just learned appellant claimed to have been shot in the head during the struggle with the victim, and accordingly wanted to obtain physical and psychiatric examinations for appellant. The trial court denied the motion, but did authorize the requested examinations. Appellant, through counsel, then negotiated a plea on the lesser offense of voluntary manslaughter. After thorough questioning by the prosecutor and the court as to appellant’s understanding of the consequences of this action, the court accepted appellant’s guilty plea. However, the final disposition entered one week later provided that appellant was sentenced on a plea of guilty but mentally ill. Appellant subsequently retained new counsel and moved for withdrawal of his plea pursuant to OCGA § 17-7-93. Appellant’s prior counsel testified at the motion hearing that “[i]t was my understanding that [appellant’s plea] was a guilty but mentally ill plea, but that is not clear in my mind.” The prosecutor stated the entry of “guilty but mentally ill” on the final disposition sheet was a clerical error. The trial court denied the motion to withdraw the plea, but entered a nunc pro tunc order changing the record to reflect that appellant had entered a “negotiated” plea of guilty to voluntary manslaughter.

1. Appellant first contends that his plea was not knowingly and voluntarily entered because he thought he was entering a plea of guilty but mentally ill, but the record as corrected by the trial court indicates he pleaded guilty. When a defendant challenges the validity of a guilty plea, the State may meet its burden of demonstrating the plea was intelligently and voluntarily entered “ ‘by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill[ing] a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.’ [Cit.]” Dean v. State, 177 Ga. App. 123, 125 (2) (338 SE2d 711) (1985). We find, upon review of the transcript of the plea hearing, that appellant’s plea of guilty to voluntary manslaughter was knowingly and voluntarily made with a full understanding of the nature of the charges against him and the consequences of his plea. Both the prosecutor and the trial judge carefully questioned appellant on his understanding of the charges, possible sentence, and rights waived. Although appellant’s prior and current counsel contend there was a misunderstanding as to whether appellant was pleading guilty or guilty but mentally ill, there is no evidence appellant was under such a misapprehension. The trial judge repeatedly referred to appellant’s “guilty plea,” and specifically asked appellant whether he wished to “enter a guilty plea to the crime of voluntary manslaughter,” and whether appellant wanted the court “to accept [his] guilty plea.” Further, at the motion hearing appellant gave no testimony that even suggested he did not understand his rights or the nature of his plea at the time it was made. Compare Harrell v. State, 145 Ga. App. 93 (243 SE2d 611) (1978).

2. Appellant also contends the trial court erred by denying his motion for a continuance until he could obtain the requested examinations. Appellant testified at the motion hearing that as a result of the court-ordered physical examination, physicians had found and removed three bullets from his head. Appellant argues that the denial of his motion for continuance deprived him of the opportunity to obtain medical evidence to support his theory of self defense, and thus he effectively was coerced into entering a guilty plea. However, no evidence was adduced in the record or transcripts to support appellant’s claim that he was coerced into entering his plea, and appellant did not testify that he felt pressured or unduly influenced in any way.

Moreover, appellant cannot now challenge the ruling on his motion for continuance. A valid guilty plea “ ‘is to be treated as an honest confession of guilt and a waiver of all defenses, known and unknown. (Cit.)’ [Cit.]” Taylor v. State, 169 Ga. App. 779, 780 (315 SE2d 288) (1984); see Schamber v. State, 236 Ga. 159 (1) (223 SE2d 138) (1976). Therefore, having established the validity of appellant’s plea, see Division 1, supra, we find appellant waived his right to assert substantive defenses.

3. Similarly, there is no merit in appellant’s argument that, because of the newly discovered evidence of bullet wounds to his head, the trial court should have allowed him to withdraw his plea and proceed to trial on the theory of self defense, as that defense also was waived by appellant’s plea of guilty. “ ‘ “The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision.” [Cit.]’ [Cits.]” State v. Kight, 175 Ga. App. 65, 67 (2) (332 SE2d 363) (1985). Accordingly, we find no abuse of the trial court’s discretion in denying appellant’s motion to withdraw his guilty plea. See generally DeLapuente v. State, 182 Ga. App. 808, 809 (357 SE2d 155) (1987).

Decided April 19, 1989.

Murray M. Silver, for appellant.

Lewis R. Slaton, District Attorney, Thomas F. Jones, Benjamin H. Oehlert III, Joseph J. Drolet, William C. Akins, Assistant District Attorneys, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0415.
    DODD et al. v. SIMPSON et al.
    (381 SE2d 585)
   Deen, Presiding Judge.

The appellant homeowners filed suit in Catoosa County against Joe Simpson and Richard Hasty, individually and as a partnership, for creating a nuisance by their development and use of some property near the appellants’ residential neighborhood in Catoosa County. Simpson was a non-resident of Georgia and Hasty was a resident of Whitfield County. Following the defendants’ motion to dismiss or in the alternative to transfer because of improper venue, the appellants voluntarily dismissed Hasty without prejudice. Simpson and the partnership then raised the issue of joinder of Hasty pursuant to OCGA § 9-11-19. The trial court found that Hasty’s ability to protect his interest in the partnership assets would be impaired if he were not joined, and thus ordered joinder of Hasty as a party defendant and transferral of the case to Whitfield County. This interlocutory appeal followed. Held:

“Suits against joint obligors, joint tort-feasors, joint promissors, co-partners, or joint trespassers residing in different counties may be tried in either county.” Georgia Const., Art. VI, Sec. II, Par. IV. In this case, jurisdiction and venue did lie in Catoosa County against the non-resident Simpson and the partnership under the long arm statute. Bergen v. Martindale-Hubbell, 245 Ga. 742 (1), 743 (267 SE2d 10) (1980); Nelson Assoc. v. Grubbs, 135 Ga. App. 947 (219 SE2d 607) (1975). The above constitutional provision regarding joint tort-feasors applies only to resident joint tort-feasors, and absent some basis for finding Simpson or the partnership to be a “resident” of Catoosa County, that county is an improper venue for suit against Hasty. Southern R. Co. v. Grizzle, 124 Ga. 735 (3) (53 SE 244) (1905); Hays v. Jones, 81 Ga. App. 597 (59 SE2d 404) (1950). There was no showing or allegation that would support such a finding in this case, which evidently led to the appellants’ voluntary dismissal of Hasty from the action.

Decided April 19, 1989.

John W. Davis, for appellants.

McCamy, Phillips, Tuggle & Rollins, R. Kevin Silvey, for appellees.

If a party joined pursuant to OCGA § 9-11-19 “objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.” OCGA § 9-11-19 (a). What the appellees did in this case by simultaneously moving for joinder of Hasty and objecting to venue of the action with regard to Hasty, was to regenerate a problem that the appellants had eliminated earlier by voluntarily dismissing Hasty. Under these circumstances, the trial court should not have joined Hasty and transferred the case to Whitfield County.

Judgment reversed.

Birdsong and Benham, JJ., concur.


text:
    A89A0441.
    TROUP COUNTY BOARD OF EDUCATION et al. v. DANIEL.
    (381 SE2d 586)
   Beasley, Judge.

Application was granted to Troup County Board of Education, the employer, and the Commissioner of the Department of Labor to appeal the Superior Court’s reversal of the decision of the Department of Labor Board of Review which had affirmed the hearing officer’s finding that Daniel was disqualified for unemployment compensation under OCGA § 34-8-158 (2), failure to obey orders, rules, or instructions or failing to perform duties for which employed.

Daniel was employed by the board as a teacher certified in speech and language pathology from 1976 to 1987. Her teaching certificate expired in August 1987. She was issued a contract for the 1987-1988 school year, contingent upon her maintaining her certificate. The Quality Basic Education Act, OCGA § 20-2-131 et seq., was enacted in 1985 and became effective July 1, 1986. Pursuant to that Act, teachers were required for the first time to take a competency examination in their field in order to renew their certification. OCGA § 20-2-200 (b). “No such personnel shall be employed in the public schools of this state unless they hold certificates issued by the state board certifying their qualifications. . . .” OCGA § 20-2-200 (a).

Decided April 19, 1989.

Lewis & Taylor, John M. Taylor, for appellants.

Michael J. Bowers, Attorney General, Wayne P. Yancey, Senior Assistant Attorney General, Lillian M. Moy, Carmen L. Toussignant, for appellee.

Daniel took the test in February, May, and August 1987 but did not pass. After discussing this with her superiors, she was advised that a resignation would be more beneficial to her than dismissal. She tendered her letter of resignation on August 20, 1987 and applied for unemployment compensation. The claims examiner found she had been discharged but was ineligible because she “did not take full advantage of opportunities for being recertified.” This was affirmed by the administrative hearing officer and the Board of Review on the basis that “she took the test on only three occasions and she could have taken the test on several other occasions but did not.”

For the reasons fully set out in the superior court order and reiterated by this court in Tanner v. Golden, 189 Ga. App. 894 (377 SE2d 875) (1989) we affirm.

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A0485.
    WRIGHT v. THE STATE.
    (381 SE2d 587)
   Sognier, Judge.

Roosevelt Wright was convicted of trafficking in cocaine and giving a false name to a law enforcement officer, and he appeals.

Appellant contends the trial court erred by denying his motion to suppress because the search was warrantless and he did not consent to a search of his person. The evidence adduced at the hearing on the motion to suppress showed that Paul J. Markonni and Gil J. Lollimere, special agents of the DEA, saw appellant deplane at Atlanta’s airport from a flight from Miami. Noting that Miami is a known drug source city; that appellant was carrying a small tote bag which appeared to be almost empty; that his clothing was rumpled and disheveled as though he had worn it for several days; that his shirttails were not tucked in despite the fact that he was wearing a waist length jacket, which in the agents’ experience was a common practice among drug couriers who conceal packages of drugs on their persons; and that the area under his shirttails seemed puffier than normal for a man his size, the agents decided to stop appellant for a brief investigation.

As appellant was en route to the gate for his connecting flight to Raleigh, North Carolina, Agent Markonni stopped him, identified himself, and asked appellant for his ticket. It was a one-way cash ticket in the name of James Green, with no baggage claim tickets attached. Markonni testified that he asked appellant his name, which appellant claimed was James Green. When asked for a driver’s license or other identification, appellant said he had none. Markonni testified he then told appellant that he and Lollimere were narcotics agents looking for drugs and asked if he would cooperate and allow them to search him and his tote bag, and that appellant “immediately said, go ahead.” Markonni suggested they move to someplace less public, and appellant acceded. Markonni testified that when they arrived at a more private area, he asked appellant again, “is it still okay to go ahead and search you and your bag? And, [appellant] responded, go ahead.” Appellant handed Markonni the bag, which he in turn handed Lollimere, who began searching it. A North Carolina identification card in appellant’s true name was found in the bag, as well as a large quantity of small plastic bags, which Markonni testified were commonly used to package small amounts of cocaine for sale. Markonni testified he then again asked appellant “can I go ahead and search you? And, at that point [appellant] didn’t respond but he raised his arms up away from his sides and I started conducting a patdown search of his person.” A large package of powder was found in his right front trouser pocket, which later proved to contain 47.8 grams of cocaine base (“crack”) with a purity of 83 percent and 28.2 grams of cocaine hydrochloride with a purity of 77 percent.

Appellant admitted traveling from Miami under the false name James Green but denied he had told Markonni that was his name. He testified that Markonni had neither asked him what his name was, nor asked if he could search his person, but simply asked if he could search the tote bag, to which appellant replied he could. Appellant admitted flying to Miami under a different name, James Johnson, because his friend James Johnson had bought the ticket for him in Raleigh, and testified that a friend had given him the cocaine in Miami “to help me out in my bills and stuff,” but he did not know what he was going to do with it when he got back to North Carolina. He testified he purchased the plastic bags in Miami for his wife’s jewelry business. He could not remember various prior arrests and convictions.

The only issue in this case is whether appellant freely and voluntarily consented to a search of his person, which is a question of fact. See State v. Floyd, 161 Ga. App. 49, 50 (289 SE2d 8) (1982); Souder v. State, 147 Ga. App. 431 (249 SE2d 146) (1978). The trial court found that appellant did consent to a search of his person because it found Markonni’s testimony to be more credible than appellant’s. “ ‘(U)nless the factual or credibility findings of the trial court on the motion to suppress are shown to have been clearly erroneous, those findings must be accepted by this court. (Cits.)’ [Cit.]” Durden v. State, 187 Ga. App. 433, 434 (2) (370 SE2d 528) (1988). We do not find the trial court’s finding to be clearly erroneous, and consequently affirm the judgment of the trial court.

Decided April 19, 1989.

James W. Studdard, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A0523.
    HEARD v. THE STATE.
    (382 SE2d 437)
    Decided April 19, 1989.

      Charles H. Lyons III, for appellant.

      Sam B. Sibley, Jr., District Attorney, for appellee.
   Deen, Presiding Judge.

A Richmond County Jury found appellant Heard guilty of one of two counts of violation of the Georgia Controlled Substances Act by selling cocaine on two separate occasions. On October 19, 1988, he was sentenced to five years’ imprisonment and on November 7 filed a timely notice of appeal in this court. He was given an extension of time for filing his brief and enumeration of errors but has filed neither. We nevertheless decline to dismiss the appeal of a criminal defendant. Conyers v. State, 183 Ga. App. 591 (359 SE2d 454) (1987).

We have reviewed the entire record and find no reversible error. The evidence authorized the reasonable trier of fact to find Heard guilty as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong and Benham, JJ., concur.