text:
    A98A0191.
    BROOKS v. THE STATE.
    (498 SE2d 139)
   Blackburn, Judge.

Brian Brooks appeals his conviction of rape, statutory rape, child molestation, and giving a false name to a police officer. The trial court imposed sentence on the rape and false name charges and held that the remaining charges merged with the rape conviction. Brooks contests the sufficiency of the evidence. He also contends the trial court erred in allowing into evidence similar transaction evidence and evidence of his custodial statements.

1. Brooks contends the trial court erred in allowing evidence of a prior similar transaction. “Williams v. State, 261 Ga. 640, 641-642 (2) (409 SE2d 649) [(1991)] provides that before admission of similar transaction evidence, the State must affirmatively show that (1) it is introducing evidence of an independent offense or act for an appropriate purpose, (2) there is sufficient evidence to establish that the accused committed the independent offense or act, and (3) there is sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” McKibbons v. State, 226 Ga. App. 452, 454-455 (3) (486 SE2d 679) (1997). A trial court’s determination that similar transaction evidence is admissible will not be disturbed absent an abuse of discretion. See Rodriguez v. State, 211 Ga. App. 256, 259 (4) (b) (439 SE2d 510) (1993); Evans v. State, 209 Ga. App. 606, 607 (2) (434 SE2d 148) (1993).

Brooks contends that the prior transaction was not sufficiently similar to the present charges to warrant admissibility. This contention is without merit. In the present case, the victim testified that she met Brooks on a subway train and gave him her telephone number. A couple of days later, Brooks called her and asked to see her. The next day, she went to his aunt’s apartment. They were watching televisión in the bedroom when Brooks began kissing her on the neck. At some point thereafter, she tried to leave, but he pulled her back to the bed. She noticed a butcher knife on the side of the pillow, which Brooks told her was there for his safety. She started crying and told Brooks to let her go, but he pushed her against the wall and threatened to hit her if she did not shut up. He then threw her on the bed and had forcible intercourse with her.

With respect to the similar transaction, the State presented evidence that Brooks had previously raped his former girl friend. The former girl friend testified that she had met Brooks on a bus, where he had asked for her phone number, and that they dated for a few weeks. About a month after they stopped dating, Brooks came to her house early one morning. He began touching her and refused to stop when she asked him to. She tried to push him away, but he kept fondling her and trying to put his finger in her vagina. When she told him to get off her, he pulled down her pants and raped her. Brooks pled guilty in Maryland to two counts of attempted sexual offense in connection with this incident.

“A similar transaction need not be identical in order to be admissible. The ultimate issue in determining admissibility of similar transaction evidence is not mere similarity but relevance to the issues of the case on trial.” (Citation and punctuation omitted.) Woods v. State, 224 Ga. App. 52, 55 (3) (479 SE2d 414) (1996). “[W]here forcible sexual assaults are involved, there is at least much sociological evidence to support the conclusion that this type of deviant sexual behavior is a sufficiently isolated abnormality so that proof of the propensity of the defendant to engage in it is at least admissible, and to this extent proof of the one tends to establish the other. Particularly in the area of sexual offenses, the admissibility of similar transaction evidence is liberally construed. Evidence of an earlier assault on a woman is material to the issue of consent or the lack thereof, and has a direct bearing on appellant’s bent of mind. Such evidence would tend to [establish] that appellant has a propensity to initiate or continue an encounter without a woman’s consent and, in fact, against her explicit request to stop. . . . Such evidence also corroborates the victim’s testimony that appellant acted in the manner charged.” (Citations and punctuation omitted.) McBee v. State, 228 Ga. App. 16, 18-19 (1) (491 SE2d 97) (1997).

Under these circumstances, the trial court did not err in allowing evidence of the prior sexual assault. See Upshaw v. State, 215 Ga. App. 529, 530 (2) (451 SE2d 125) (1994).

2. Brooks contends that the evidence was insufficient because, other than the testimony of the victim, there was no evidence that he had sexual intercourse with her. As an initial matter, we note that “corroboration of a victim’s testimony is unnecessary to support a rape conviction.” Littleton v. State, 225 Ga. App. 900, 901 (1) (485 SE2d 230) (1997). Although corroboration is necessary to support a statutory rape conviction, see OCGA § 16-6-3 (a) (“no conviction shall be had for [statutory rape] on the unsupported testimony of the victim”), Brooks was not sentenced on the statutory rape conviction, which merged with the rape conviction.

Moreover, there was ample evidence corroborating the victim’s testimony. Shortly after the incident, the victim told her boyfriend what had happened. She then called the police, who took her to the hospital for a medical examination. The physician who examined the victim testified that he discovered sperm indicating recent sexual activity. He further testified that his findings were consistent with the victim’s claim of sexual assault. Furthermore, Brooks admitted to police that he had had intercourse with the victim. Viewed in the light most favorable to the verdict, the evidence was sufficient to authorize the jury’s finding of Brooks’ guilt of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see also Turner v. State, 223 Ga. App. 448, 449-450 (2) (477 SE2d 847) (1996); Legg v. State, 207 Ga. App. 399 (428 SE2d 87) (1993).

3. Brooks contends the trial court erred in holding that his statement to police admitting he had had sex with the victim was voluntarily given.

At an admissibility hearing under Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), Officer Reggie Smith of the DeKalb County Police Department testified that he went to Brooks’ apartment the day after the incident. Brooks answered the door and identified himself as “Brian Jones.” Smith testified that he informed Brooks of the rape accusation and advised him of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). He testified that Brooks appeared to listen carefully and acknowledged that he understood his rights. Brooks then stated that he and the victim had had sexual intercourse, but that he had stopped when the victim asked him to stop.

Smith testified that he asked Brooks to come with him to the police station. At the station, he again advised Brooks of his Miranda rights. Brooks signed a form acknowledging his understanding of these rights, using the name “Brian Jones.” Brooks gave a written statement in his own handwriting stating that he had had sex with the victim but had stopped when she asked him to. Brooks signed the statement “Brian Jones.” Smith testified that he gave Brooks no hope of benefit in exchange for making his two statements, nor any fear of injury if he did not give a statement.

Decided February 27, 1998.

Lynch, Spears & Shuman, John H. Tarpley, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Lee A. Man-gone, Assistant District Attorneys, for appellee.

Brooks testified at the Jackson-Denno hearing that Smith did not read him his Miranda rights at the apartment. He testified that Smith told him that if he came to the station and gave a statement that he had had sex with the victim, they would let him go. Brooks testified that he gave his statement to the police only because he believed they would then let him go. Smith denied that he had made any such statement to Brooks.

“A trial court’s conclusions of fact and credibility following a Jackson-Denno hearing are to be accepted unless clearly erroneous. Here, the trial court found that [Brooks] was advised of each of his Miranda rights, that he understood them, that he voluntarily waived them, and that he thereafter gave his statement freely and voluntarily without any hope of benefit or fear of injury.” (Citations and footnote omitted.) Yorker v. State, 266 Ga. 615, 617 (4) (469 SE2d 158) (1996). As these findings were supported by sufficient evidence, the trial court did not err in holding the statements admissible.

Judgment affirmed.

McMurray, P. J., and Senior Appellate Judge Harold R. Banke concur.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A98A0274.
    TODD v. THE STATE.
    (498 SE2d 142)
   Eldridge, Judge.

A Douglas County jury found appellant Ralph Lee Todd guilty of theft by taking (motor vehicle), terroristic threats, and stalking. He appeals.

The evidence shows that the victim broke off her relationship with appellant and that appellant did not take it well. In retaliation, appellant stole the victim’s car. The victim called the police and reported appellant’s act. Several days thereafter, appellant broke into the victim’s home, beat her severely about the neck and face with a gun, raped her, and complained about her contact with the police. The victim reported the assault/rape to the police. Four days after that, appellant called the victim at her office (the speaker phone was on) and threatened to “get her” for her repeated contact with the police; appellant stated he was “not going back to prison.” In addition, appellant let the victim know that he had placed her under surveillance by informing her that he knew who had changed the locks on her home, that he knew she had a gun in her home, and that he knew the police had been at her workplace.

Herein, appellant does not challenge the sufficiency of the evidence introduced against him, and we find the evidence sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Instead, appellant claims that three errors of law require reversal. Upon review, we disagree and affirm.

1. Appellant first contends that the trial court erred in refusing to give his written request to charge the jury on the offense of harassing telephone calls, OCGA § 16-11-39.1, as a lesser included offense of terroristic threats, OCGA § 16-11-37, since the threats were made over the telephone.

A reading of OCGA § 16-11-39.1 (a) demonstrates that a person may commit the offense of “harassing telephone calls” in four separate and alternative ways. Hazelton v. State, 200 Ga. App. 61, 63 (406 SE2d 569) (1991). Pertinent to the instant case, a person may commit the offense of “harassing telephone calls” when he “uses over the telephone language threatening bodily harm”; no specific intent is required. OCGA § 16-11-39.1 (a). On the other hand, the offense of terroristic threats is committed when a person “threatens to commit any crime of violence . . . with the purpose of terrorizing another.” OCGA § 16-11-37. Thus, as in the instant case, any threat to commit a crime of physical violence upon another person that is communicated by telephone may be considered either an harassing telephone call or a terroristic threat, depending on the intent of the caller as determined by the jury.

Further, a crime, is considered “included” in another offense when “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged.” OCGA § 16-1-6 (1). Clearly then, depending on the facts of a case, harassing telephone calls may be an included offense of terroristic threats, since the same act may constitute both and only the culpable mental state differs.

However, “[t]he complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” (Emphasis in original.) Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994); Huckeba v. State, 217 Ga. App. 472, 475 (458 SE2d 131) (1995). Under the facts of this case, the state’s evidence was sufficient to establish all of the elements of the indicted offense of terroristic threats (as conceded by appellant); appellant’s defense was that he never made any threats or intimidating remarks at all. Thus, under the evidence, either appellant was guilty of the indicted offense or he was guilty of no offense whatsoever. “Where, as here, the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense.” (Citations and punctuation omitted.) Leaver v. State, 211 Ga. App. 876, 878 (2) (440 SE2d 760) (1994). Accordingly, under the circumstances existing herein, there was no error in the trial court’s refusal to charge the lesser included offense.

2. Next, appellant challenges the introduction of the similar transaction evidence wherein appellant broke into the victim’s home, assaulted her, and raped her. Appellant’s challenge to this evidence is premised on three separate grounds: (a) the rape accusation is allegedly unrelated to the indicted offenses; (b) the state failed to articulate a proper purpose for the introduction of this evidence pursuant to Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991); and (c) the trial court failed to charge the jury on the limited purpose for their consideration of this evidence.

At the outset, as the trial court correctly noted, this evidence is in fact evidence of “prior difficulties between the parties,” not “similar transaction” evidence which concerns completely independent offenses. As noted by Supreme Court of Georgia Presiding Justice Hunt before his departure for the federal bench, “What is true in this case is generally true with all cases involving prior difficulties between a victim and a defendant. The history of their relationship is of whole cloth woven of the many threads of dependent, connected actions and incidents that occurred between them. In short, evidence concerning prior difficulties they have experienced in their relationship is relevant.” Stewart v. State, 263 Ga. 843, 849-850 (440 SE2d 452) (1994) (Hunt, P. J., dissenting). Accordingly, we analyze the admissibility of the evidence about which appellant complains, prior difficulties evidence, with this in mind. See Maxwell v. State, 262 Ga. 73, 74 (2) (b) (414 SE2d 470) (1992).

(a) There was no error with regard to the admission of the prior difficulties between the parties since the evidence showed: (1) appellant was the perpetrator of the assault/rape; (2) the motive and course of conduct between the parties; and (3) “some link of association, something which draws together the preceding and subsequent acts, something which gives color of cause and effect to the transaction.” Id. at 75; McTaggart v. State, 225 Ga. App. 359 (483 SE2d 898) (1997). Clearly, the evidence of appellant’s crime of violence against the victim proved appellant’s intent with regard to his terroristic threats to “get her” and her subsequent terror. The ongoing conduct of the appellant toward the victim, which encompassed the indicted acts and the “prior difficulties” all within a span of less than two weeks, was relevant and admissible.

(b) The state articulated a proper purpose for the introduction of such evidence: “I think the rape which I’ve enumerated as a similar transaction is important because it is in the middle of a course of conduct of harassment and intimidation in an attempt to win her back or show her that she doesn’t need to go to the police. . . . [I]t goes to the issue of why is she — the purpose of his conversation terrorizing.” (Emphasis supplied.) See, e.g., Williams, supra at 642.

(c) The trial court properly limited the jury’s consideration of the prior difficulties evidence to appellant’s course of conduct and state of mind, i.e., intent. The fact that the trial court defined “state of mind” for the jury as “knowledge, intent, motive, and other mental conditions” does not result in a “laundry list” of permissible purposes for the consideration of such evidence as was proscribed by this Court in Stephan v. State, 205 Ga. App. 241 (422 SE2d 25) (1992). There was no error.

3. In his last enumeration of error, appellant contends that the trial court erred in granting the state’s oral motion in limine, thereby refusing to allow appellant to testify as to his alibi defense that he was at work at the time the victim’s car was stolen.

The record shows that appellant opted to proceed under the discovery procedures of OCGA § 17-16-1 et seq. Pursuant to that article, appellant failed to comply with OCGA § 17-16-5 (a) requiring disclosure to the state ten days prior to trial of any alibi defense, including “the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the defendant, upon whom the defendant intends to rely to establish such alibi unless previously supplied.” Appellant does not contest that he failed to provide notice of the specific place he claims to have been at the time of the alleged offense. Appellant does not contest that the alleged alibi witness whose name was supplied the Friday before the Monday trial date could not be found by the state (or the defense, for that matter) in order to determine the nature of the alibi defense. However, appellant contends that: (a) the Code section applies only to an alibi witness and does not apply when it is the defendant who will testify regarding an alleged alibi; and (b) no showing of prejudice and bad faith was made so as to exclude appellant’s alibi testimony. OCGA § 17-16-6.

(a) Appellant asserts that OCGA § 17-16-5 (a) applies only to an alibi witness and does not apply when a defendant establishes the alibi defense. Such assertion ignores the plain meaning of the Code section, as well as the purpose of the Discovery Act, OCGA § 17-16-1 et seq.

The provisions of the Discovery Act were designed to facilitate disclosure of evidence in order to ensure “fairness” in criminal adversarial proceedings. While this may seem an oxymoron to some, such was the intent. Accordingly, OCGA § 17-16-5 (a) provides that the alibi defense must be disclosed with particularity, including the specific locale, and specific information regarding “the witnesses, if known to the defendant, upon whom the defendant intends to rely to establish such alibi.” Thus, as in this case, when it is the defendant who will establish the alibi defense, he is a witness within the ambit of the Act. As appellant correctly notes, the purpose for such detailed disclosure is related to the state’s ability to rebut the alibi defense, which rebuttal information must also be disclosed by the state to the defense. Thus, appellant’s failure in this case to provide disclosure ten days prior to trial of the specific alibi locale and information regarding a viable witness who would establish the alibi defense impacted on the ability of the state to investigate and refute such evidence in the manner contemplated by the statute. As such, the trial court correctly determined that appellant’s notice was insufficient under the statute.

(b) OCGA § 17-16-6 provides remedies for the failure to comply with discovery requirements: “If at any time during the course of the proceedings it is brought to the attention of the court that the [defendant] has failed to comply with the requirements of this article, the court may order the [defendant] to permit the [(1)] discovery or [(2)] inspection, [(3)] interview of the witness, [(4)] grant a continuance, or, [(5)] upon a showing of prejudice and bad faith, prohibit the [defendant] from introducing the evidence not disclosed.”

As a practical matter under the facts of this case, the trial court could not fashion a remedy from prongs 1 and 2, “discovery or inspection,” since such remedies are not relevant to non-disclosure of an alibi defense and, thus, provide no cure. Also, the trial court could not fashion a remedy from prong 3, interview of the witness, since the witness on the list could not be found by any party, and the defendant as a witness has. a constitutional right to remain silent; moreover, interviewing a witness during trial is no remedy for the nondisclosure of an alibi defense, since the purpose of the statute, allowing the state to uncover rebuttal evidence ahead of trial and provide such evidence to the defense, would be completely frustrated by a remedy that simply authorizes an interview of the alibi witness during the course of the trial. In addition, the trial court could not fashion a remedy from prong 4, granting a continuance: clearly, after jeopardy has attached and the state has rested, the granting of a continuance in order to allow the state to investigate the non-disclosed alibi defense, gather evidence to rebut it, and provide such evidence to the defense would be impractical and would jeopardize trial procedures. Thus, the only applicable remedy under the facts of this case would be under prong 5, exclusion upon a showing of prejudice and bad faith.

In reviewing a trial court’s decision on an oral motion in limine, “we construe the evidence most favorably to uphold the findings and judgment, and must adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. Further, since the trial court sits as the trier of facts, its findings will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted; emphasis supplied.) Davis v. State, 226 Ga. App. 83, 84 (485 SE2d 508) (1997).

The prejudice to the state from a defendant’s failure to disclose an alibi defense until trial is obvious: the state is denied the ten days authorized by law in which to investigate and refute the alleged alibi, and the development of such evidence is clearly hampered, if not rendered impossible. Further, in this case the appellant had over a year in which to disclose to the state the specific location he claimed to be at the time of the offense and information regarding those witnesses who would testify thereto; the appellant offered the trial court no valid excuse for the failure to provide such statutorily required notification and no justification for the filing of a completely deficient notice one working day before trial. See footnote 4, supra. Such defense conduct frustrated the very purpose and intent of the Act. Thus, evidence of “prejudice and bad faith” exists pursuant to OCGA § 17-16-6, and we cannot say that the trial court abused its discretion in excluding appellant’s testimony regarding his alibi defense. Davis, supra at 85.

Decided February 27, 1998.

Jill L. Anderson, Jeffrey R Manciagli, for appellant.

David McDade, District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.

(c) Moreover, appellant was able to put forward his alleged alibi defense as he proffered it to the trial court: that “[ajppellant was working the entire day of December 23, 1993, and so he could not have been at the location where the victim’s car was stolen.” The appellant testified that he worked the entire time that he and the victim dated, and that he left for work each morning at 5:30 a.m. The victim testified that appellant had been working for most of the time she knew him; that he called her regularly from work during his breaks; and that she had thought appellant had gone to work on the day her car was stolen. The appellant testified that he found out that the victim’s car was stolen when he called her during his lunch break at work, and she told him that it had been stolen. “Pretermitting error, if any, harm also must be shown affirmatively on the record in order to authorize reversal on appeal. Robinson v. State, 212 Ga. App. 613, 616 (442 SE2d 901) (1994).” Davis v. State, 225 Ga. App. 564, 570 (7) (484 SE2d 284) (1997). As the substance of appellant’s alibi was put before the jury, no harm has been shown.

Judgment affirmed.

Blackburn, J, and Senior Appellate Judge Harold R. Banke concur.

       The offense of terroristic threats also requires corroboration by one or more witnesses, which requirement is not present in the offense of harassing telephone calls.

       Compare Usher a State, 143 Ga. App. 843 (240 SE2d 214) (1977), which case did not determine whether “harassing telephone calls” is a lesser included offense of the crime of “terroristic threats.” Usher decided only that if the threat of physical violence is made with the felonious intent to terrorize, the fact that the threat is communicated via telephone does not reduce the crime to the misdemeanor offense of “harassing telephone calls.” Id. at 844.

       Appellant’s assertion regarding a constitutional right to testify as his alibi defense, i.e., “tell his side of the story,” was not raised at trial, and we will not consider it. Stewart v. State, 210 Ga. App. 474, 478 (13) (436 SE2d 679) (1993).

       The disclosure notice to which appellant refers this Court states only that on the day the victim’s car was stolen, appellant was working “at a location other than that of the alleged incident.” The name and address of this location was not disclosed, and the witness who was listed on the notice could not be located by either the prosecution or the defense. Moreover, the notice to which appellant refers was filed on August 25, 1995; the trial date was the next working day, Monday, August 28, 1995.


author: Birdsong, Presiding Judge.

text:
    A97A2216.
    ELLIOTT v. THE STATE.
    (497 SE2d 817)
   Birdsong, Presiding Judge.

James Anthony Elliott appeals his conviction for trafficking in cocaine, two additional counts of violation of the Georgia Controlled Substances Act and obstruction of an officer. The state’s evidence, construed in favor of the trial court’s findings on appellant’s motion to suppress and at his jury trial (Allenbrand v. State, 217 Ga. App. 609 (1) (458 SE2d 382)), shows that appellant was stopped at a routine license and insurance checkpoint in LaGrange, Georgia. Appellant handed over his driver’s license and officers examined it and found that the license picture matched the face of the driver, James Anthony Elliott. Officers also recognized Elliott personally by his real name on his driver’s license, and by his alias (“Rick James”), as the person who, according to their information, was a principal distributor of cocaine in LaGrange. Appellant stated he had no weapons or contraband in the car, which was a rental car. He gave consent to search, but when he was asked to turn off the car, he rolled up his window and drove away. In his flight from the police, appellant crashed into a police car and led officers on a high speed chase until he abandoned his car and fled on foot. In the abandoned vehicle, police found 120.5 grams (4.2 ounces) of 75 percent pure powder cocaine and 1,491 grams (4.2 pounds) of marijuana and a set of digital scales; and, a black leather jacket, a wallet with credit cards in appellant’s name and appellant’s address book and keys. Seven days later, appellant turned himself in to police headquarters and identified, as his, the personal property in the abandoned car. Later that property including the wallet and leather jacket, were released to him at his request.

On appeal, Elliott complains of an illegal stop, search and seizure; the insufficiency of the evidence to support the verdicts; and the inadequacy of assistance of trial counsel for having failed to get a specific ruling on appellant’s motion to suppress even though the court, in denying a motion for new trial, stated that it did so “having read the transcript of the hearing on the motion to suppress”; and the trial court’s denial of a motion for mistrial made on grounds that the state’s testimony contradicting his attorney’s opening statement forced appellant to testify. Held:

1. The trial court’s ruling on a motion to suppress — including the denial of a motion for new trial with the trial court having heard the arguments of the defense and the state on the motion to suppress and “having read the transcript of the hearing on the Motion to Suppress” — where there is a conflict in the evidence will be upheld as long as there is evidence to support the trial court’s order. State v. Medders, 153 Ga. App. 680 (266 SE2d 331).

The trial court’s denial of the motion for new trial, viewed in favor of that ruling, establishes beyond a reasonable doubt that appellant abandoned the car which was clearly identified as having immediately been driven by him, and he thus abandoned any interest in it and the property in it and appellant had no protected interest in the abandoned car. Thus, the search and seizure were proper. Burgeson v. State, 267 Ga. 102 (3) (b) (475 SE2d 580).

The events surrounding the roadblock, which he claims was pretextual, are irrelevant and do not affect the propriety of the search and seizure made from an abandoned car after its driver crashed into a police car and led police on a high speed chase.

Appellant’s argument that the search of the car and seizure of property in the car were illegal because the roadblock was pretextual and was manned by narcotics officers and dog handlers, amounts to an assertion that he had the right to flee a police stop upon his unilateral determination that the stop was pretextual and that he had the right to commit criminal acts to evade capture by police. We reject this argument completely. Even if the roadblock had been improper, appellant had no right to flee a police stop and to lead police on a high speed chase after ramming a police car.

Notwithstanding the fleeing acts by appellant and regardless whether the roadblock was improper, the controlling fact here is that police searched an abandoned car which was identified as the car appellant had been driving immediately before he abandoned it. It contained a large quantity of cocaine, marijuana and drug-sellers’ paraphernalia, and property appellant admitted was his.

2. Furthermore, the roadblock stop was proper. Georgia courts have long since established, as proper, police roadblocks set up for the purpose of checking the legality of the operation of vehicles “without the necessity of any particularized suspicion of wrongdoing.” Kan v. State, 199 Ga. App. 170 (404 SE2d 281), quoted in Brimer v. State, 201 Ga. App. 401, 402 (411 SE2d 128); see also Randall v. State, 194 Ga. App. 153 (390 SE2d 74); Sappe v. State, 188 Ga. App. 700 (374 SE2d 114). Appellant’s flight was unlawful; his leading police on a high speed chase was criminal and authorized police to pursue him; and by his abandonment of the car he also abandoned any interest in privacy he had in it and thus authorized the search and seizure. Burgeson, supra. The evidence of propriety of this search and seizure is so overwhelming that even if the trial court erroneously failed to consider the evidence at appellant’s preliminary hearing in denying the motion to suppress, no harm was done thereby. Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515); Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869); In the Interest of D. T. C., 226 Ga. App. 364, 366 (487 SE2d 21); Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133).

3. We have examined the evidence and find it overwhelmingly sufficient to authorize a rational trier of fact to find appellant guilty of the crimes charged, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

4. (a) Appellant claims trial counsel was ineffective for having failed to get a specific ruling on his motion to suppress. The order denying the motion for new trial states: “Having heard the argument of the defense attorney and attorney for the State and having read the transcript of the hearing on the Motion to Suppress, the Court hereby denies the [d]efendant[’s]. . . Motion for New Trial.” This is a specific ruling on the motion to suppress.

(b) The alleged ineffectiveness occurred after the trial court ruled on appellant’s motion for new trial; thus the issue is raised here for the first time. Generally, when this issue is raised for the first time on appeal, the case is remanded to the trial court for hearing on the issue. Kennedy v. State, 217 Ga. App. 18, 19 (2) (456 SE2d 288). However, in this case a remand on this issue is not only barred but is also inappropriate on substantive grounds.

(c) New defense counsel was retained after the trial. New counsel did not assert ineffectiveness of trial counsel in his motion for new trial, i.e., at the earliest practicable opportunity. Under Owens v. State, 263 Ga. 99, 102 (428 SE2d 793), a remand to determine effectiveness of trial counsel is therefore barred.

We have held that where this issue is raised for the first time on appeal, it must be remanded to the trial court for an evidentiary hearing on the claim. Turner v. State, 210 Ga. App. 328, 329-330 (3) (436 SE2d 66). However, some exceptions have been noted. In Owens v. State, 263 Ga. 99 (3) (428 SE2d 793) appellate counsel withdrew the motion for new trial and filed an appeal; and see Bailey v. State, 264 Ga. 300 (443 SE2d 836) where new appellate counsel simply failed to amend the motion for new trial by adding the effectiveness of counsel issue. In both cases, it was held that a remand for determination on the issue was “barred.” In Johnson v. State, 259 Ga. 428 (3) (383 SE2d 115) the court held that where the issue of effectiveness of counsel is raised for the first time on appeal by an appellate attorney who did not represent the defendant at trial or on a motion for new trial, and who did not file an amended motion for new trial, a remand for hearing on that issue of effectiveness may be appropriate. This language indicates that the appeals court is not always mandated to remand a claim for ineffectiveness of counsel raised for the first time on appeal. See similarly Vick v. State, 205 Ga. App. 600, 601 (423 SE2d 46). And see the dissent in Dozier v. State, 217 Ga. App. 835 (459 SE2d 463), which noted that charges of ineffective assistance of counsel are serious, involving the professionalism of trial counsel; they are time-consuming, usually requiring the presence of trial counsel as a witness in a hearing to defend his performance, and “Constitutional ineffectiveness does not exist unless a deficiency in the representation by trial counsel materially affects the outcome of the proceeding. Hammond v. State, 260 Ga. 591, 599 (398 SE2d 168).” (Emphasis supplied.) Id. at 838. Especially where new counsel forewent the chance to raise the issue in a motion for new trial, a remand to consider the issue is an unwarranted “elongation of the process and allows a stalling of the final disposition of the case” (Dozier, supra) — during which, obviously, many convicted criminals avoid just prison sentences. An automatic remand when the claim is not made below, despite opportunity to make it, results in unwarranted piecemeal appeals. Id.

Generally the claim of ineffective assistance of counsel refers to counsel’s performance at trial. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674); see Johnson v. Zant, 249 Ga. 812 (1) (295 SE2d 63). To succeed on a claim of ineffective assistance of counsel, a defendant must show trial counsel’s performance was deficient and that it prejudiced the defendant’s defense so as to deprive him of a fair trial; in the absence of evidence to the contrary, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance. Earnest v. State, 262 Ga. 494, 496 (5) (422 SE2d 188). In this case, the only ineffectiveness claimed is in reality the failure of new appellate counsel to get a specific ruling on the motion to suppress while he had the opportunity to do so.

In this case, new appellate counsel filed a motion for new trial which did not include a claim for ineffectiveness of trial counsel. Moreover the only claim of ineffectiveness is that trial counsel failed to do what new appellate counsel could easily have done in his motion for new trial, to wit, get a “specific” ruling on appellant’s motion to suppress. Therefore, a remand for hearing on this singular issue is barred by the rulings in Bailey, Owens, and Johnson, supra.

(d) Further, in the interest of judicial economy, we note that the singular issue of trial counsel’s failure to obtain a specific ruling on the record denying appellant’s motion to suppress is a legal one, and we can answer it. This claim does not amount to ineffective assistance of counsel at trial, and was in fact irrelevant to the outcome of the case-, a specific ruling would have gained appellant nothing inasmuch as the search and seizure were entirely proper and legal and the denial of his motion to suppress was correct. Finally, we have found the court did make a specific ruling on the motion to suppress by denying the motion for new trial upon stating it had heard arguments of counsel on the issue and had read the transcript of the motion to suppress hearing.

5. The trial court did not err in denying appellant’s motion for mistrial, made on grounds that the state forced appellant to testify, by using state’s witnesses to contradict statements made in trial counsel’s opening argument. The motion is specious, as the circumstances were created by appellant.

In his opening argument appellant’s trial counsel surprised the State by asserting for the first time that he was not the driver of the car but had been “carjacked.” This surprise evidence forced the State to call witnesses to testify that appellant made no such claim when he came to police headquarters to turn himself in and to retrieve his personal items.

Having created this evidentiary ambush, appellant created a necessity for the State to refute it, and he also created any compulsion he says he felt to respond to the State’s refutation. The entire circumstance which he claims to be error was induced by appellant; self-induced error is close to premeditated error. Huff v. State, 224 Ga. App. 115 (479 SE2d 476); see Hill v. State, 223 Ga. App. 493 (478 SE2d 406). We find no error in the court’s proceedings or in denial of appellant’s motion for mistrial.

Decided March 2, 1998.

Alfred F. Zachry, for appellant.

Peter J. Skandalakis, District Attorney, Aileen R. Page, Brett E. Pinion, Assistant District Attorneys, for appellee.

We further find any possible error in the denial of appellant’s motion for mistrial was harmless in view of the overwhelming evidence against appellant in the case. Hamilton v. State, supra; Johnson v. State, supra; In the Interest ofD. T C., supra; Kirkland v. State, supra.

Judgment affirmed.

Ruffin and Eldridge, JJ., concur.


text:
    A97A2219.
    KENDRICK v. FUNDERBURK et al.
    (498 SE2d 147)
   Birdsong, Presiding Judge.

Jennifer H. Kendrick appeals the grant of summary judgment to Nelle M. Funderburk, Michael R. Funderburk, and the law firm of Funderburk & Mobley (collectively “the Funderburks”) on her claims against them for abusive litigation under OCGA § 51-7-80. Nelle Funderburk represented Kendrick in an EEO complaint against Kendrick’s employer; Michael Funderburk and Funderburk & Mobley represented Nelle Funderburk in her lawsuit against Kendrick seeking payment of her legal fees.

Kendrick contends that the trial court erred by finding that no genuine issues of material fact existed on whether the initiation of the Funderburks’ action seeking a contingency fee was without substantial justification; erred by finding that there were no genuine issues of material fact on whether the continuation of the action was without substantial justification after Kendrick deposited a check for the amount of the Funderburks’ hourly rate bill with the clerk of court; and erred by finding that there were no genuine issues of material fact on whether the Funderburks acted with ill will or wrongful purpose in the action to recover attorney fees as the Funderburks admit they sought to recover a contingency fee which Kendrick contends was a clear violation of the laws of this State.

According to the Funderburks, Kendrick retained Nelle Funderburk to represent her in an employment discrimination complaint under a contingent fee contract, dated December 5, 1992. The entire body of the contract states:-“I, Jenny Kendrick, Address (not stated), hereby employ, NELLE FUNDERBURK Attorney at Law, to represent me in the following matter: charge of sexual discrimination, ITT Hartford. I agree to pay my attorney in accordance with the following fee arrangement: 25% of any recovery prior to trial, 33% if trial. I understand that the fee is for professional services and does not cover out-of-pocket expenses which I must pay. Expenses of this nature include, but are not limited to, filing fees, witness fees, and fees for copies of essential records.” (The underlined matters were handwritten.) Kendrick contends, however, that her original arrangement with Nelle Funderburk called for billing on an hourly basis, and that it was not until December 1993 that she was asked to sign the contingency fee contract.

There is no dispute that Nelle Funderburk was retained to represent Kendrick. After Nelle Funderburk worked on the cases for approximately one year, however, Kendrick allegedly became dissatisfied with Nelle Funderburk’s representation, terminated her services, and hired another attorney. Kendrick’s letter discharging Nelle Funderburk stated that the contingent fee agreement that Nelle Funderburk caused her to sign differed from the original agreement that was for hourly billing unless suit was filed, the letter “revoked” the contingent fee agreement, and the letter instructed Nelle Funderburk to stop work on the case and to send “a complete accounting of [her] bill to date.” Further, Kendrick’s deposition testimony denied that she had a legitimate contingent fee arrangement with Nelle Funderburk and, instead, asserted that Funderburk had her sign the agreement while Kendrick was emotionally distressed and when Kendrick did not understand what she was signing.

After receiving the letter discharging her, Nelle Funderburk sent Kendrick a bill for $2,902.50 for the legal services provided through the date Nelle Funderburk’s services were terminated. The bill was itemized with dates, description of the work performed and the amount of time spent doing the work up to the date Kendrick ended their relationship, and called for payment of 21.50 hours of legal services at the rate of $135 per hour. Sometime thereafter Kendrick’s new attorney advised Nelle Funderburk that Kendrick would pay the bill, and made arrangements to pick up Kendrick’s file. When the new attorney attempted to pick up the file, however, Funderburk refused to turn over Kendrick’s file without prior payment of the bill. After the complaint was settled, the new attorney informed Nelle Funderburk that the bill would be paid out of the settlement proceeds.

After the settlement, however, Kendrick alleges that Nelle Funderburk refused to accept the amount billed as payment, and, instead, she demanded a $25,000 fee based on the contingency fee contract. The demand stated that the Funderburks considered the contingency fee contract to be a lien against the settlement in the case and that before the mediation the Funderburks had negotiated a settlement of $125,000 of Kendrick’s claim, and consequently the Funderburks claim a fee of $25,000.

When Kendrick refused to pay this amount, the Funderburks subsequently filed suit claiming that they were entitled to $43,750 as their fee. Kendrick’s answer to the Funderburks’ complaint averred that she had attempted to pay the $2,902.50 bill, and she subsequently deposited the amount of this bill with the clerk. Ultimately, Kendrick moved for summary judgment. Her motion was based in part upon an affidavit from the attorney who represented Kendrick’s employer in her discrimination complaint, and that attorney stated that the employer never negotiated a settlement of the complaint with Nelle Funderburk and denied that the employer had made an offer to settle the case as Nelle Funderburk contended.

Subsequently, summary judgment was granted to Kendrick on the Funderburks’ claims for attorney fees. The court’s order recited that the Funderburks had failed to respond to Kendrick’s motion to deposit the $2,902.50 into the registry of the court and also recited that the Funderburks had also failed to respond to Kendrick’s motion for summary judgment or to appear at the hearing on the motion. Later, the Funderburks filed a motion seeking to set aside this judgment because they asserted they had not received notice of the motions or the hearing because they had moved their office. The trial court, however, denied the motion because it found the Funderburks at fault as they failed to inform anyone of the office move. After this ruling, the Funderburks withdrew the $2,902.50 from the court.

Subsequently, Kendrick filed this action against the Funderburks alleging that they were guilty of abusive litigation because they filed and continued the previous lawsuit against her. The Funderburks moved for summary judgment contending that the previous action had a sound basis because they were suing for services rendered under the theory of quantum meruit and for breach of the contingency fee contract. The Funderburks contend that their suit was not abusive because Kendrick refused to pay the bill in any amount, including that amount which she acknowledged was legitimately owed, and thus it was necessary to file suit to recover the fee. They also noted that the court in the previous action did not find the suit to be frivolous within the meaning of OCGA § 9-15-14 and had denied Kendrick’s motion seeking attorney fees. The trial court in this action found that the prior complaint did allege causes of action under the breach of the contingent fee contract and under quantum meruit and further found that the Funderburks had not committed abusive litigation. After the trial court granted the Funderburks’ motion for summary judgment, Kendrick filed this appeal. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). When reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. Boulware v. Quiktrip Corp., 226 Ga. App. 399 (486 SE2d 662) (1997); Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996).

2. The contingent fee agreement, which the Funderburks rely upon, states that Kendrick agrees “to pay my attorney in accordance with the following fee arrangement: 25% of any recovery prior to trial, 33% if trial.” Because Nelle Funderburk’s entitlement to a fee for her services is contingent upon “any recovery,” she was not entitled to a fee under this agreement since no recovery was obtained while she was still employed. Sosebee v. McCrimmon, 228 Ga. App. 705, 706 (492 SE2d 584); Yetman v. Greer, EJosik &c., 225 Ga. App. 397, 399 (1) (483 SE2d 878). Nevertheless, Nelle Funderburk is not without recourse because where a client prevents the contingency from happening, an attorney is entitled to a reasonable attorney fee for the services she rendered on behalf of her client. Sosebee, supra at 706-707; Brookhaven Supply Co. v. Rary, 131 Ga. App. 310, 311 (205 SE2d 885). Thus, if Nelle Funderburk had a contingent fee contract with Kendrick she could have a remedy in quantum meruit (see Dorsey v. Edge, 75 Ga. App. 388, 392 (2) (43 SE2d 425); Hopkins v. Steele, 164 Ga. App. 527, 528 (297 SE2d 528)) if she could establish that the services she rendered were received by and had value to Kendrick. Sosebee, supra at 707; Ford v. Smith, 25 Ga. 675 (3). Further, it is error to rely blindly upon the percentage in the contingency fee agreement in determining this amount. Sosebee, supra at 707; Yetman, supra at 400.

3. Consequently, the proper issue before the trial court was whether the Funderburks’ actions in bringing the prior action to collect under a contingent fee agreement, or demanding a recovery under quantum meruit based solely on the amount of recovery under the contingent fee agreement constituted abusive litigation. OCGA § 51-7-81 provides as follows: “Any person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another shall be liable for abusive litigation if such person acts: (1) With malice; and (2) Without substantial justification.” In this context, a “ ‘civil proceeding includes any action, suit, proceeding, counterclaim, cross-claim, third-party claim, or other claim at law or in equity.” OCGA § 51-7-80 (1). “ ‘Malice’ means acting with ill will or for a wrongful purpose and may be inferred in an action if the party initiated, continued, or procured civil proceedings or process in a harassing manner or used process for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based.” OCGA § 51-7-80 (5). “ ‘Without substantial justification’, when used with reference to any civil proceeding, claim, defense, motion, appeal, or other position, means that such civil proceeding, claim, defense, motion, appeal, or other position is: (A) Frivolous; (B) Groundless in fact or in law; or (C) Vexatious.” OCGA § 51-7-80 (7). Kluge v. Renn, 226 Ga. App. 898, 902 (487 SE2d 391). The Funderburks as parties and as attorneys representing themselves and in the action against Kendrick are proper defendants in a claim under OCGA §§ 51-7-80 (6) and 51-7-81. Id.

“Although good faith is defined in subjective terms to the extent it refers ‘to the best of a person’s or his or her attorney’s knowledge, information, and belief, formed honestly ... ,’ an attorney cannot establish that he or she acted in good faith by simply asserting a subjective, honest belief that a claim was well grounded in fact and warranted by existing law or by reasonable grounds to believe that an argument for changing the law may be successful. The ‘reasonable inquiry’ requirement of § 51-7-80 (4) is an objective good faith requirement which qualifies the definition and imposes a duty on attorneys to conduct a reasonable inquiry into the facts and law prior to initiating, continuing, or procuring a claim on behalf of a client. Accordingly, the applicable standard is what would be objectively reasonable for a competent attorney under the circumstances. See 5A C. Wright & A. Miller, Federal Practice & Procedure, § 1335 (2nd ed. 1990) (discussing the standard of ‘reasonableness under the circumstances’ used to measure attorneys’ compliance with similar statutory language in Rule 11 of the Federal Rules of Civil Procedure).” Kluge v. Renn, supra at 903-904.

Under Kluge v. Renn, the Funderburks had the burden of conducting a reasonable inquiry into the facts and law before initiating or continuing their action to collect the attorney fees, and the standard is what would be objectively reasonable for a competent attorney under the circumstances. “[T]he attorney’s continuing duty under the reasonable inquiry requirement is to pursue discovery or investigation, and, if sufficient support is not developed after a reasonable opportunity for discovery or investigation, then dismiss, withdraw, abandon, or discontinue the claim. Of course, an abusive litigation claim would be appropriate where an attorney files a claim on behalf of a client without any factual or legal support or supported only by guess or sheer speculation, or in cases where a claim having arguable factual or legal support is filed in good faith for the purpose of pursuing discovery, but continued by the attorney after discovery reveals there is no basis for the claim.” Id.

Decided March 2, 1998

Keegan Federal & Associates, R. Keegan Federal, Jr., Carole A. Cox, for appellant.

Swift, Currie, McGhee & Hiers, Jeffrey Y. Lewis, John O. Sullivan, for appellees.

Nelle M. Funderburk, pro se.

In this appeal, based upon the record before us, we cannot conclude that no genuine issues of material fact existed on whether the Funderburks initiated and continued the underlying action against Kendrick based upon a contingency agreement and for an amount which greatly exceeded the amount that they could reasonably anticipate they would be entitled to recover. Although we agree with the trial court that whether an action has a basis in law is a legal issue for the trial court, we do not agree with, the trial court’s ultimate decision because the determination was based upon disputed factual issues. In granting summary judgment, the trial court seemingly found that there was a contingent fee agreement between Kendrick and Nelle Funderburk. We find, however, that this finding was not authorized because whether there was a legitimate contingent fee agreement was disputed by Kendrick as she asserted the contract was secured by fraud and deception. Therefore, the trial court was not authorized to resolve this issue of fact. Fletcher v. Amax, Inc., 160 Ga. App. 692, 695 (288 SE2d 49). Additionally, because the contract was terminated before recovery, Nelle Funderburk had no right to sue on the contract. Sosebee, supra; Yetman, supra. Moreover, there is evidence in the record which could support Kendrick’s assertions that the litigation was based on malice because the Funderburks pursued the action in increasingly higher amounts based upon an agreement which was no longer in effect, relying upon a purported settlement which Kendrick and her former employer denied was ever made, and seeking a fee which was almost 15 times greater than the amount they billed for Nelle Funderburk’s service.

Accordingly, the trial court erred by granting summary judgment.

Judgment reversed.

Ruffin and Eldridge, JJ, concur.


author: Blackburn, Judge.

text:
    A97A2359, A98A0276.
    HELMECI v. THE STATE (two cases).
    (498 SE2d 326)
   Blackburn, Judge.

On May 2, 1995, a loaded dump truck driven by Dean Scott Helmeci collided with a passenger car on a Cherokee County road, killing the car’s driver. Criminal charges stemming from the incident resulted in Helmeci’s convictions for second degree vehicular homicide, driving with a controlled substance in his urine, reckless driving, driving an unsafe and improperly equipped vehicle, and possession of amphetamine and methamphetamine. In Case No. A97A2359, Helmeci appeals those convictions and the denial of his motion to suppress the scientific test which showed methamphetamine and amphetamine in his urine. In Case No. A98A0276, Helmeci appeals the trial court’s denial of his motion to remain in the local jail in Cherokee County pending his appeal.

Case No. A97A2359

1. Helmeci challenges the trial court’s denial of his motion to suppress the urine test results. Helmeci contends that the State failed to prove that the procedures used to analyze his urine were approved methods of testing pursuant to the Georgia Administrative Procedure Act, see OCGA § 50-13-1 et seq. He also contends that the State failed to establish that the test machine was operated with all of its operating components attached and in good working order. The trial court’s findings as to disputed facts in a ruling on a motion to suppress are upheld absent clear error; however, “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

After the collision, a state trooper read Helmeci his implied consent rights pursuant to OCGA §§ 40-5-55 and 40-5-67.1, and Helmeci consented to give the State blood and urine samples. Although the blood sample was negative for drugs and alcohol, tests performed by the Division of Forensic Sciences of the Georgia Bureau of Investigation (DFS or the crime lab) revealed that Helmeci’s urine contained methamphetamine and amphetamine. These tests were performed by a certified toxicologist on a Hitachi 911 Immunoassay Urine and Blood Analyzer and a gas chromatograph with an ion trap detector. The State presented these test results to support its charge that Helmeci drove while “there [was] any amount of ... a controlled substance . . . present in [his] . . . urine, . . . including the metabolites and derivatives of [such].” OCGA § 40-6-391 (a) (6). Amphetamine and methamphetamine are two such controlled substances. See OCGA §§ 16-13-21 (4); 16-13-26 (3) (A) and (B). This evidence also supported the indictment’s charge that Helmeci possessed methamphetamine and amphetamine in violation of OCGA § 16-13-30.

In moving to suppress this evidence, Helmeci argued that the crime lab’s urinalysis did not meet the admissibility requirements of OCGA § 40-6-392 (a) (1). Because Helmeci was involved in a fatal accident, he was deemed to have consented “subject to [OCGA §] 40-6-392,” to a drug test of his urine. OCGA § 40-5-55 (a). OCGA § 40-6-392 (a) (1) (A) states that “[u]pon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person in violation of [OCGA §] 40-6-391, evidence of the amount of alcohol or drug in a person’s blood, urine, breath, or other bodily substance at the alleged time, as determined by a chemical analysis . . . shall be admissible. . . . Chemical analysis of the person’s . . . urine ... to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation. . . . [That agency] shall approve . . . requirements for properly operating and maintaining any testing instruments.” (Emphasis supplied.) In such cases as State v. Holton, 173 Ga. App. 241, 242 (1) (326 SE2d 235) (1985) and Corner v. State, 223 Ga. App. 353, 354 (477 SE2d 593) (1996), we held the DFS was required to substantially comply with the requirements of the APA, in “approving” those “methods” of testing referred to in § 40-6-392 (a) (1). Among its other provisions, the APA declares invalid agency rules which are not “published or made available for public inspection.” OCGA § 50-13-3 (b).

Helmeci claimed that because the DFS had not published regulations governing the equipment and procedures used to test urine samples taken pursuant to OCGA § 40-5-55, those methods were not “approved” pursuant to § 40-6-392 and the APA. However, effective May 1, 1997, the legislature enacted OCGA § 35-3-155 as part of a comprehensive overhaul of the statutes dealing with the DFS. This new statute provides: “Unless otherwise specifically provided by law, technical, scientific, and similar processes, procedures, guidelines, standards, and methods for the collection, preservation, or testing of evidence adopted by the division shall not be subject to the provisions of Chapter 13 of Title 50, the ‘Georgia Administrative Procedure Act.’, Thus, under the new statute, the APA does not apply to the type of testing procedures used by the DFS in this case.

The question thus arises whether the new statute should be given application in this matter where the incident occurred on May 2, 1995. OCGA § 35-3-155 became effective on May 1, 1997. See Ga. L. 1997, pp. 1421, 1436. Our Supreme Court has clearly stated that generally, in criminal cases, “an appellate court applies the law as it exists at the time its opinion is rendered.” State v. Martin, 266 Ga. 244, 245 (1) (466 SE2d 216) (1996); see also Hill v. Willis, 224 Ga. 263, 265 (161 SE2d 281) (1968); Houston v. State, 192 Ga. App. 73, 74 (383 SE2d 571) (1989). Therefore, unless application of the new statute in this case violates constitutional principles, we are bound to apply it.

As an initial matter, we note that this Court is generally without jurisdiction to rule on the constitutionality of a statute. See Wright v. Transus, Inc., 209 Ga. App. 771, 773-774 (2) (434 SE2d 786) (1993). Moreover, the Supreme Court has clearly held that retroactive application of a statute dealing with evidentiary matters such as those in this case does not violate constitutional principles. In Martin v. State, 217 Ga. App. 860 (460 SE2d 92) (1995), this Court reversed the denial of a motion to suppress breath test results due to the failure of the arresting officer to utilize the implied consent warning set forth in a recently enacted amendment to OCGA § 40-5-67.1 (b). After our decision, however, in August 1995, the legislature amended the statute a second time to make it applicable only to stops made after April 21, 1995. The Supreme Court affirmed our analysis, but reversed our decision, holding that the August 1995 amendment, passed after our decision, controlled since it was the law in force at the time of its decision. The court held that “[t]he August amendment does not violate federal or State ex post facto constitutional provisions. The August amendment modifies the scope of evidence which may be offered in a DUI trial. It does not affect the manner or degree of punishment and does not alter any substantive rights conferred on [the defendant] by law.” (Citations omitted.) State v. Martin, 266 Ga. at 245-246 (3).

Although we have serious concerns with the application of any statute in a manner which retroactively alters the rights of a criminal defendant, substantively or otherwise, we are bound by the decisions of our Supreme Court, and therefore hold that OCGA § 35-3-155 is applicable in this appeal. Accordingly, the trial court correctly denied Helmeci’s motion to suppress on this ground.

Helmeci also contends that the State presented insufficient evidence that the urinalysis machine was operated with all of its electronic and operating components prescribed by its manufacturer properly attached and in good working order, as required by OCGA § 40-6-392 (a) (1) (A). In particular, Helmeci contends that Donald Dicks, the DFS toxicologist who testified at trial, was not qualified to testify because he admitted he had not seen the design plans for the machine and was only familiar with its internal electronics as an operator, not as an electrician. This contention is without merit. Dicks testified that he was familiar with the machines and their operation and that they were in proper working condition. He testified that DFS can tell whether a machine is working properly by running “controls” provided by the manufacturer. “The statute does not demand that the examiner have an expert’s knowledge of the underlying scientific principles governing the functioning of the machine.” Dotson v. State, 179 Ga. App. 233, 234 (2) (345 SE2d 871) (1986).

2. Helmeci contends insufficient evidence supports his convictions because no evidence showed he was driving the dump truck at the time of the collision. On appeal, we review the evidence in a light most favorable to the verdict to determine whether a rational trier of fact could have found Helmeci guilty of these offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Coates v. State, 216 Ga. App. 93, 94 (1) (453 SE2d 35) (1994). A trooper who arrived on the scene shortly after the collision determined that the dump truck belonged to Mr. Helmeci, who was found at the scene. The trooper also identified another man who had been in the truck with Helmeci and described that man as “crippled.” The trooper read Helmeci the implied consent warnings and took him to the hospital, where he voluntarily gave blood and urine samples. At trial, he identified Helmeci as the operator of the dump truck. Helmeci did not testify at trial, and nothing in the record shows he ever claimed he was not driving the truck. Likewise, no evidence showed the handicapped man in the dump truck with Helmeci was its driver. The evidence presented allowed the jury to determine Helmeci drove the dump truck and to exclude this alternative hypothesis and all others. Coates, supra; see also Smith v. State, 222 Ga. App. 701, 702 (1) (475 SE2d 715) (1996).

3. Helmeci contends that his conviction for possession of a controlled substance, a felony, merged into his conviction for driving with a controlled substance in his urine, a misdemeanor. He contends that because evidence that he possessed a controlled substance in his urine was used up in proving the misdemeanor DUI charge, he cannot also be convicted of the felony possession charge. This contention is without merit.

“At common law, a merger occurred only when the same act constituted both a felony and a misdemeanor; the misdemeanor merged into the felony. The rule had no application when both offenses were either misdemeanors or felonies. In Georgia, however, [after passage of OCGA §§ 16-1-6 and 16-1-7] . . . a felony may merge into another felony which requires an additional element or a more culpable mental state or a more serious injury or risk of injury to the same person, property, or public interest.” (Citations omitted; emphasis supplied.) Pryor v. State, 238 Ga. 698, 700-701 (234 SE2d 918) (1977). Helmeci has cited no cases supporting the proposition that a felony may merge into a misdemeanor, and we decline to adopt such a proposition. Under Helmeci’s argument, an individual who has committed the felony of possession by ingesting a controlled substance could avoid conviction for such felony when driving a vehicle while under the influence of the possessed drugs, a misdemeanor. Such a result defies common sense and is not required by the statute.

4. We also address Helmeci’s claim that the court improperly required him to pay $9,345.98 in restitution to the victim’s widow, an amount representing the unreimbursed expenses of the victim’s funeral. We reject Helmeci’s claim that the settlement monies received by the widow in settlement from Helmeci’s liability insurance company must offset the amounts ordered as restitution, especially where evidence showed the widow would not receive any payment from the settlement for many years and no evidence showed any part of the settlement was intended to cover the victim’s funeral expenses. Furthermore, the trial court was not required to inquire into Helmeci’s financial condition, his ability to pay, or his earning capacity where the defendant did not testify and offered no evidence on those issues. See Cheeks v. State, 218 Ga. App. 212, 213-214 (460 SE2d 860) (1995). However, because the record does not reflect that the trial court actually considered the remaining factors enumerated in OCGA § 17-14-10, and because no written findings were made on these factors, we must reverse the restitution award and remand the issue of restitution for reconsideration. Written findings of fact relating to each of the factors set forth in § 17-14-10 should be made upon reconsideration. See Slater v. State, 209 Ga. App. 723, 725-726 (4) (434 SE2d 547) (1993); Garrett v. State, 175 Ga. App. 400, 403 (1) (333 SE2d 432) (1985).

Case No. A98A0276

5. In Case No. A98A0276, Helmeci appeals the trial court’s denial of his motion under OCGA § 42-5-50 (c) to remain in the Cherokee County jail pending the outcome of his appeals. That statute provides that, if “the attorney for the convicted person shall file a written request with the' court setting forth that the presence of the convicted person is required within the county of the conviction, or incarceration, in order to prepare and prosecute properly the appeal of the conviction, the convicted person shall not be transferred to the correctional institution . . . [but] shall remain in the custody of the local jail or lockup until all appeals of the conviction shall be disposed of” or until the attorney files an affidavit stating that the convicted person’s presence is no longer required. OCGA § 42-5-50 (c).

The statute is clearly couched in mandatory language, indicating that a trial court has no discretion in denying a request to remain in the county pending appeal. The State, however, cites Whiddon v. State, 160 Ga. App. 777, 783-784 (9) (287 SE2d 114) (1982), a case decided prior to the enactment of OCGA § 42-5-50 (c), for the proposition that the trial court may order a prisoner transferred if conditions at the county jail render the jail insecure or unsafe for the prisoner. In In re Irvin, 254 Ga. 251, 253-254 (328 SE2d 215) (1985), the Supreme Court overruled Whiddon to the extent that it held a judge could sua sponte order a prisoner transferred to another facility if it deemed the county insecure, noting that “[t]he legislature has vested the sheriff alone with the administrative authority to order such transfers. OCGA § 42-4-4 (a) (3).” Id. at 253. However, the Court affirmed the proposition that the court could do so upon proper motion with all interested parties, including the sheriff, before the court. Id.

We need not decide whether Whiddon and Irvin remain viable under the new statute, for it is clear that the conditions authorizing transfer in those cases are not present in this case. Although the State argues that transfer was authorized due to overcrowding at the county jail, the jail administrator, Harvey Tyrone Duke, testified at the hearing that the prison was then holding 138 prisoners, including Helmeci, two fewer than its capacity of 140 prisoners. Seventeen other prisoners were being held in facilities in other jurisdictions. Duke did not testify that keeping Helmeci at the facility would create an insecure or unsafe condition. Indeed, he admitted that he could house Helmeci if the judge required him to. He also admitted that the jail was continuing to accept new arrestees, although many had to be contracted out to other facilities in order to remain within the jail’s capacity.

Under these circumstances, the trial court erred in denying Helmeci’s motion to remain in the county jail pending the disposition of his appeals. Although retaining Helmeci in the county jail might necessitate transferring other prisoners to facilities in other counties, it must be remembered that Helmeci has a statutory right to remain in the county during his appeals, and that the county has a concomitant obligation to. accommodate that right. The fact that his presence might cause some inconvenience to the county does not mean that it would result in an insecure or unsafe condition. Accordingly, Helmeci has the right to remain in the county jail pending the disposition of all appeals in this case, including any possible appeal to the Supreme Court.

Decided March 2, 1998

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

Garry T. Moss, District Attorney, for appellee.

Judgment of conviction affirmed in Case No. A97A2359, award of restitution reversed, and case remanded with direction. Judgment reversed in Case No. A98A0276.

Pope, P. J., and Johnson, J., concur.

       Neither the State nor the defendant brought this recent change in the law to the attention of this Court in their original briefs. Nor was it raised by the parties in connection with the motion for reconsideration. The new statute was first raised in an amicus curiae brief filed by the State Attorney General’s office in support of the State’s motion for reconsideration. We take this opportunity to remind the parties of their obligation to apprise this Court of all relevant statutory and case law in connection with their case, particularly where the law has been recently changed. We also wish to commend the Attorney General’s office for its efforts in this matter and in bringing this issue to the attention of the Court. Without the input of the Attorney General, there is a possibility that the change in the law would not have been considered in our decision in this matter.


author: Pope, Presiding Judge.

text:
    A97A2345.
    WEST v. CSX TRANSPORTATION, INC. et al.
    (498 SE2d 67)
   Pope, Presiding Judge.

In this suit alleging continuing nuisance and trespass, Duane West claims his property flooded repeatedly because defendants CSX Transportation and the Polk County Chapter of Georgia Rails Into Trails (“GRITS”) failed to maintain drainage control on a railroad right of way that ran through West’s property. CSX abandoned the line in 1988 and pulled up the rails in 1991. West’s suit claims that when CSX abandoned the right of way, the drainage ditches clogged with sediment and plant growth. Removing the rails, West argues, also channeled water off the right of way and onto his property. In 1995 CSX sold the strip of land to GRITS, a nonprofit recreational group. West claims GRITS is responsible for continuing the nuisance that CSX created. The trial court granted summary judgment to GRITS and CSX. We reverse its judgment on the nuisance claims because the trial court improperly found them barred by West’s failure to provide notice to the defendants and by a statute of limitation. We find that a jury should determine whether the failure of CSX and GRITS to maintain the drainage ditches created a continuing nuisance for which these defendants are responsible.

1. Notice. The trial court erred when it found West’s nuisance claims barred by a failure to give CSX notice to abate the nuisance. A purchaser of property on which a nuisance exists must be given notice of the nuisance before he may be held responsible for it. OCGA § 41-1-5 (b). However, notice to the person who creates a nuisance is not a prerequisite to the creator’s liability. See Smith v. Branch, 226 Ga. App. 626, 629 (2) (d) (487 SE2d 35) (1997). Therefore, West was not required to give CSX notice to abate the nuisance before he filed this action.

Such notice to GRITS, the purchaser, was a prerequisite to its liability for any nuisance, but the trial court erred by finding as a matter of law that no notice was given. “Notice to [a purchaser] that he will be held responsible for any damages subsequently caused by the nuisance will suffice in lieu of a specific request to abate. [Cits.]” Hoffman v. Atlanta Gas Light Co., 206 Ga. App. 727, 731 (2) (426 SE2d 387) (1992). Based on the record before us, a question of fact appears as to whether GRITS was given notice to abate or notice that it would be held liable if it purchased the property and continued the nuisance. Evidence shows that a representative of GRITS discussed the drainage problems with representatives of both CSX and West in 1994, months before GRITS purchased the property. Therefore, a question of fact exists as to what notice West gave GRITS regarding the nuisance and the responsibility GRITS would have for continuing it.

2. Statute of Limitation. The trial court also erred when it found that the four-year statute of limitation for property damage barred West’s claim that removing the rails, cross-ties, and ballast created or contributed to the nuisance. Whether any representative of CSX acted negligently in removing these structures is not the question; rather, the question is whether those acts created or contributed to a continuing nuisance. “[E]very continuance of a nuisance which is not permanent, and which could and should be abated, is a fresh nuisance for which a new action will lie. Consequently suit may be maintained for damages growing out of a nuisance of the character indicated, where the damages were inflicted within four years before the time of filing suit, though the act which originally caused the nuisance was not done within the period of limitation of the action.” (Citations, punctuation, and emphasis omitted.) Hoffman, 206 Ga. App. at 730. See also Goble v. Louisville &c. R. Co., 187 Ga. 243, 249 (3) (200 SE 259) (1938). West’s suit claims CSX created a continuing nuisance. Therefore, if a jury finds these acts created the nuisance or contributed to the nuisance, West may recover for any damage inflicted on the property within the four years preceding his filing of this suit. See Smith, 226 Ga. App. at 628.

3. The Continuing Nuisance Allegations. Reaching the merits of West’s nuisance claim, we review the record de novo and construe the evidence and all reasonable inferences strongly in West’s favor to determine whether any genuine issue of fact creates questions for a jury. See generally Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The record shows that in 1903, CSX’s predecessor in title purchased from West’s predecessor in title this strip of land running through what is now West’s farm. Along this strip, and apparently parallel to or on top of a creek, the railroad built an elevated roadbed. As CSX acknowledges in its appellate brief, “the railroad company knew that changes in the flow of the creek would be caused by construction of the railroad, and [it] attempted to address those changes by conveying [in the 1903 deed] the right to change the course of the stream” by building drainage ditches parallel to the roadbed.

With the roadbed and drainage ditches in place, West’s property was subject to flooding twice a year. The railroad maintained its right of way, drainage ditches, and culverts until it abandoned the line in 1988. Sediment and plant growth then began to fill the ditches. When CSX pulled its rails in early 1991, ruts were created which channeled water from the roadbed onto West’s property. Beginning in March 1991, witnesses testified, West’s property adjacent to the right of way began to experience flooding, erosion, and sedimentation problems. Beavers built dams on the property, exacerbating the situation.

West’s experts testified that the topography of the land naturally conducted water from West’s property onto the right of way without ponding or flooding. They opined that the flooding and sedimentation which began in 1991 resulted from the railroad’s failure to maintain its ditches, embankments, and culverts as well as from CSX’s removal of the rails, cross-ties, and gravel.

(a) CSX’s Liability. Two basic principles apply here. First, the owner of a lower tract of property owes a servitude to the owner of an adjoining higher tract and is required to receive surface waters which normally flow from the higher lot. Rinzler v. Folsom, 209 Ga. 549, 552 (1) (74 SE2d 661) (1953). It appears that when the railroad built its elevated roadbed at the turn of the century, it built ditches to accommodate the runoff which would have otherwise flowed from West’s property into the creek upon which the roadbed was constructed. Second, “[t]he owner of a drainage ditch is under a duty to maintain it so that the surface waters do not overflow to the damage of adjacent property owners. [Cit.] Similarly, the owner of a creekbed containing a creek flowing through culverts constructed by such owner or his predecessor in title is under a duty to maintain them so that the waters do not overflow to the damage of adjacent property owners.” Equitable Life Assur. &c. v. Tinsley Mill Village, 249 Ga. 769, 771 (1) (294 SE2d 495) (1982). From those two principles is derived the rule that “[wjhere a railroad company constructs a fill or embankment which obstructs the natural drainage and flow of water from adjacent land belonging to another, and in order to prevent the water from backing upon the land the railroad company constructs a ditch or drain to carry off the water, the railroad company owes a duty to the owner of the land not to permit the ditch to fill up and become obstructed so as to turn the water back upon the adjacent land.” Southern R. Co. v. Thacker, 50 Ga. App. 706 (1) (179 SE 225) (1935) (physical precedent only). Therefore, CSX had a duty to maintain its ditches to accommodate the naturally-occurring runoff. One who creates a nuisance is liable for it even if he has sold the property containing the nuisance. McMillen Dev. Corp. v. Bull, 228 Ga. 826, 828 (3) (a) (188 SE2d 491) (1972).

CSX argues that the flooding was caused by beavers, a naturally-occurring problem for which the railroad had no responsibility, and that West could have removed the beaver dams himself. See Bracey v. King, 199 Ga. App. 831, 832 (406 SE2d 265) (1991). The railroad also produced evidence showing that the ditches had actually caused West’s property to be drier than it would have been naturally. But these issues merely present questions of fact. ‘When a surface-water invasion has taken place, whether it amounts to a compensable tort is a question of fact for the jury. Nature, gravity, velocity, and relativity, as well as the acts of the alleged tortfeasor, are matters that must be considered in determining whether a surface-water invasion constitutes a trespass for which damages are recoverable.” Brand v. Monfega Corp., 233 Ga. at 34. West has presented evidence showing the flooding would have occurred even absent the beavers as well as evidence showing that CSX’s failure to maintain the ditches effectively turned the raised roadbed into a dam. Moreover, CSX could be responsible for its failure to remove any beaver dams which were blocking a drainage ditch or culvert which it had a duty to maintain, because CSX could not “co-operate with . . . the forces of nature to the injury of” West. (Punctuation omitted.) Bracey, 199 Ga. App. at 832. Therefore, the question of whether CSX caused a continuing nuisance, the type and amount of damages resulting from any nuisance, and West’s mitigation of damages are properly questions for a jury to decide.

Although the trial court’s opinion does not address it, we note that a 1917 release entered between the railroad and West’s predecessor in title did not relieve the railroad from responsibility for maintaining the ditches. That document did free the railroad from any duty to make its ditches any larger or create additional drainage controls. However, the release specifically provided that the railroad would continue “to the extent required by the law of Georgia as it exists in the absence of contract... be liable for failure to keep clear of rubbish and sediment or other like odstructions [sic] existing in ditches on its own right of way or ditches thereon widened or deepened by [West’s predecessor in title].”

Decided February 13, 1998

Reconsideration denied March 3, 1998

Ann Moceyunas, James S. Astin, for appellant.

Casey, Gilson & Williams, James E. Gilson, Sandra Gray, for appellees.

(b) GRITS’ Liability. “[T]he maintenance of the nuisance after notice is continuance of the nuisance, and the [purchaser] of the property causing the nuisance is responsible for that continuance, if there is a request for abatement before action is filed. [Cit.]” Hoffman v. Atlanta Gas Light Co., 206 Ga. App. at 732. Given the evidence showing that West discussed the drainage problems with a GRITS representative even before GRITS purchased the property, and that GRITS did nothing to correct the drainage problems after it purchased the property, a jury must decide whether GRITS is responsible for maintaining a nuisance after notice to abate and whether its maintenance of a nuisance has damaged West.

4. Our reversal of the trial court’s judgment makes it unnecessary for us to consider West’s remaining enumeration.

Judgment reversed.

Johnson and Blackburn, JJ, concur.

       West has not raised, and we do not address, the propriety of summary judgment on West’s negligence claims unrelated to his nuisance claims.

       We note that neither the parties nor the court has addressed whether the nuisance is, in fact, permanent or abatable. But see Brand v. Montega Corp., 233 Ga. 32, 33 (1) (209 SE2d 581) (1974) (“In a surface-water invasion case, the continuing invasions amount to a continuing trespass which is the equivalent of a continuing nuisance.”). As to the measure of damages in a “continuing nuisance” case, see City of Columbus v. Myszka, 246 Ga. 571, 573 (6) (272 SE2d 302) (1980).

       West has not raised any issue of prescriptive rights. But see Brown v. Tomlinson, 246 Ga. 513, 514-515 (272 SE2d 258) (1980) (through passage of time, landowner on upper end of lake acquired prescriptive right to maintenance of dam by dam’s owner).


author: Johnson, Judge.

text:
    A98A0461.
    GROGAN v. THE STATE.
    (497 SE2d 589)
   Johnson, Judge.

Perry Grogan, former sheriff of Paulding County, appeals from his conviction of child molestation. In a single enumeration of error he asserts the trial court judge abused his discretion when he decided during trial, outside the presence of Grogan or his counsel, that a juror’s failure to respond to a question during voir dire was immaterial.

The facts giving rise to this challenge were developed at the hearing on the motion for new trial. A juror testified that during voir dire he was asked whether he or any member of his family had been arrested during the period in which Grogan was sheriff and he responded “no.” The juror recalled that no information was given regarding the dates of Grogan’s term of office. He was new to the comity and was unfamiliar with locally elected officials generally and had never met Grogan. He knew that he had been arrested on a misdemeanor charge, but was unsure of the date. Grogan was not involved in his arrest. As the trial progressed, the juror became concerned that his arrest may have been during Grogan’s term of office and told the bailiff.

Barden Ravelle also testified at the hearing on the motion for new trial. Ravelle stated that he had been employed as the chief investigator for defense counsel in connection with the Grogan case. While the jury was deliberating, Ravelle thought he remembered the juror having been arrested during the period in which Grogan was sheriff. Ravelle was a volunteer at the jail at the time. He shared his thoughts with defense counsel. Because the courthouse had already closed for the day, he was unable to confirm his suspicions until the next day, when he ran a criminal history of the juror and found that he was correct. Ravelle informed defense counsel, who did not bring the issue to the court’s attention at the time. Rather, counsel waited until Grogan’s motion for new trial.

Grogan has not established by the record that the bailiff, or anyone else, relayed the juror’s concerns to the trial judge or that the trial judge decided not to pursue the matter. “It is the duty of appellant to show error by the record and mere assertions of error in the brief do not suffice. [Cit.]” Williams v. State, 202 Ga. App. 485, 486 (2) (414 SE2d 712) (1992) (physical precedent only). Assuming, without deciding, that the trial judge did abuse his discretion in treating the matter as he did, Grogan was still not relieved from his obligation to raise the issue below or risk waiver. “Counsel may not idly sit by and watch when possible [error] is presented and on appeal claim error. It is necessary, in order to make the same a basis for appellate review that opposing counsel make proper objection or invoke some ruling of the court. A party cannot ignore what he thinks to be error, take his chance on a favorable verdict, and complain on appeal.” (Citations and punctuation omitted.) West v. State, 224 Ga. App. 190, 191 (2) (480 SE2d 238) (1997). Here, Grogan’s counsel knew while the jury was still deliberating, presumably with an alternate available if necessary, that he had questions about one of the jurors. Yet, he did nothing and is now precluded from doing so. See Foster v. State, 255 Ga. 425 (339 SE2d 256) (1986).

Moreover, “[t]o invalidate the result of a . . . trial because of a juror’s mistaken, though honest, response to a question, is to insist on something closer to perfection than our judicial system can be expected to give. A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination. We hold that to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause.” (Citations and punctuation omitted.) Isaacs v. State, 259 Ga. 717, 741 (44) (e) (386 SE2d 316) (1989). Even if Grogan established at the hearing on his motion for new trial that the juror failed to honestly answer a material question, a correct response would only have allowed Grogan to exercise a peremptory strike and did not, by itself, provide a valid challenge for cause. We see no grounds for reversal.

Decided February 13, 1998

Reconsideration denied March 3, 1998

Lackland & Heyward, Theodore H. Lackland, for appellant.

Perry Grogan, pro se.

James R. Osborne, District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.

       Voir dire was not reported. No attempt has been made to submit a stipulation of the events in accordance with OCGA § 5-6-41 (i). See Smith v. State, 209 Ga. App. 699, 700 (2) (434 SE2d 528) (1993).


text:
    A97A1969.
    STORCH v. CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY.
    (497 SE2d 606)
   Pope, Presiding Judge.

Allen Weaver was injured working on a house that plaintiff Jack Storch was building. Subsequently, Weaver filed a workers’ compensation claim against Storch. Storch, who had a homeowner’s insurance policy for the house with defendant Cambridge Mutual Fire Insurance Company that was in effect on the date of Weaver’s injury, notified Cambridge of Weaver’s claim. In doing so, Storch also demanded that Cambridge provide a defense to the claim. After first sending Storch a reservation of rights letter, Cambridge concluded that it had no duty to defend Storch against Weaver’s claim under the homeowner’s policy. Consequently, it denied Storch’s demand to provide a defense. When Storch successfully defended Weaver’s claim on his own, Cambridge also refused to reimburse Storch for the expenses he incurred in doing so.

Based on Cambridge’s refusal to defend Storch or reimburse him for his own defense, Storch brought suit against Cambridge seeking to recover the expenses he incurred, statutory bad faith penalties, litigation expenses, attorney fees and punitive damages. Cambridge answered, generally denying liability. Thereafter, Cambridge filed a motion for summary judgment in which it argued that it was not liable because it had no duty to defend Storch against a workers’ compensation claim. In response, Storch filed a cross-motion for summary judgment, claiming that the policy required Cambridge to provide Storch with a defense. Storch appeals from the trial court’s grant of Cambridge’s motion and from the denial of his own motion. Finding no error, we affirm.

1. “COVERAGE E” of the “LIABILITY COVERAGES” section of Storch’s homeowner’s policy, which relates to personal liability, states in pertinent part as follows: “If a claim is made or a suit is brought against an insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, we will . . . provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent.” (Emphasis in original.) Based on the above provision, in his first enumeration, Storch argues that the trial court erred in granting summary judgment to Cambridge because Weaver’s workers’ compensation claim constituted a false and groundless claim covered under the policy, as demonstrated by the State Board of Workers’ Compensation’s ruling that Storch was not required by law to provide workers’ compensation benefits to Weaver and that he had not voluntarily agreed to do so. We cannot agree.

While “[i]t is true that an insurer must defend even a groundless suit when the true facts of the case show no coverage[,] a distinction must be drawn between groundless suits and actions which, even if successful would not be within the policy coverage. A claim based on true facts not within coverage is not groundless [or false] within the meaning of the policy, but simply one for which liability insurance is not afforded and which the insurer did not undertake to defend. . . .” (Citations anNd punctuation omitted; emphasis in original.) Great American Ins. Co. v. McKemie, 244 Ga. 84, 85 (259 SE2d 39) (1979). And the question of whether an insurer has a duty to defend is determined by comparing the true allegations of the complaint brought against the insured with the provisions of the policy, taking into consideration any additional facts the insured has brought to the attention of the insurer that might establish coverage under the policy. See Colonial Oil Indus. v. Underwriters Subscribing to Policy Nos. T031504670 & TO31504671, 268 Ga. 561, 562-563 (2) (491 SE2d 337) (1997); Al Who Enterprises v. Capitol Indem. Corp., 217 Ga. App. 423, 426 (1) (457 SE2d 696) (1995).

Decided March 3, 1998.

Gray & Hedrick, William E. Gray II, L. Bruce Hedrick, Julia J. Yoffee, for appellant.

Chambers, Mabry, McClelland & Brooks, Edwin L. Hamilton, William R. Youngblood, for appellee.

Applying the above principles to the case at bar, we note that no matter how the true facts found in Weaver’s workers’ compensation complaint against Storch, as well as any facts brought to Cambridge’s attention by Storch, are construed, they ultimately set forth only a claim for workers’ compensation benefits and not a civil claim for damages based on personal liability. And while it is true that the State Board of Workers’ Compensation ultimately determined that Storch was not required to pay any workers’ compensation benefits to Weaver, we note that “[t]he issue of the insured[’s] ultimate liability [in an action] is irrelevant to the question of whether the insurer was obligated to [provide a defense in that] action. The question is not whether the underlying action has merit, but whether the complaint alleges a claim that is covered by the policy.” (Citations omitted; emphasis in original.) Penn-America Ins. Co. v. Disabled American Veterans, 224 Ga. App. 557, 559 (481 SE2d 850) (1997).

In the instant case, Weaver’s workers’ compensation claim clearly constituted an action, “which, even if successful would not be within the policy coverage.” See McKemie, 244 Ga. at 85; Penn-America Ins. Co. v. Disabled American Veterans, 268 Ga. 564, 566 (490 SE2d 374) (1997). This is so because the policy specifically excluded from coverage personal liability that might arise out of any duty to provide workers’ compensation benefits to a third party. Consequently, Weaver’s workers’ compensation complaint could not and did not “allege[ ] a claim that [was] covered by the policy.” Penn-America, 224 Ga. App. at 559. Under such circumstances, we conclude that Cambridge had no duty to defend Storch in the workers’ compensation action, and that the trial court did not err in granting summary judgment to Cambridge for that reason.

2. In light of our holding in Division 1, we find no merit to Storch’s second enumeration, wherein he contends that the trial court erred in denying his motion for summary judgment.

Judgments affirmed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.