author: Ruffin, Judge.

text:
    A98A0038.
    HOWARD v. THE STATE.
    (502 SE2d 292)
   Ruffin, Judge.

A jury found Tommy L. Howard guilty of aggravated assault (OCGA § 16-5-21) and driving under the influence of alcohol (OCGA § 40-6-391). The trial court denied Howard’s motion for new trial. Howard appeals and, in his sole enumeration of error, contends that the trial court erred in denying his motion for new trial because he was denied effective assistance of trial counsel. We affirm.

The record shows that Officer Adams, while on routine patrol, observed a car followed closely by a van. Both vehicles exited a private driveway at a high rate of speed. The officer followed and observed both the car and the van run a stop sign. When the car approached a second stop sign and applied its brakes, the van still following did not stop. As a consequence the van rammed into the car. As Adams approached, Howard got out of the van and the victim got out of the car. The victim was screaming and noticeably afraid of Howard. Officer Adams testified that Howard was boisterous and uncontrollable; Howard used profane language and continually tried to attack the victim even though Adams was standing between them. The victim indicated that Howard intended to hit her car because he was angry with her. Based on the victim’s statement and the fact he did not see the van’s brake lights come on, Officer Adams concluded Howard intended to strike the victim’s car. Howard did not advise the officer that it was an accident or that the van’s brakes were defective. The record further shows that during his investigation of the collision Officer Adams administered an alco-sensor test to both Howard and the victim. Howard’s alco-sensor test showed that he had alcohol in his system.

“Georgia has adopted the two part test for effectiveness set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Under the Strickland formula, defendants seeking to show that their counsel was ineffective must show: 1) their counsel’s performance was deficient and 2) that the deficient performance prejudiced the defense. The failure to establish either element of the test will result in the denial of defendant’s claim of ineffective counsel.” (Citations and punctuation omitted.) Scapin v. State, 204 Ga. App. 725 (420 SE2d 385) (1992). “ ‘[A] trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.’ [Cit.]” Riser v. State, 222 Ga. App. 348, 349 (474 SE2d 632) (1996).

1. Howard contends that trial counsel was ineffective because he failed to object to a State witness’ testimony that disclosed his alcosensor test results or move for a mistrial or curative instruction regarding the introduction of the test results. The subject testimony was elicited by the prosecutor during direct examination of the victim: “Q. Okay. And, you don’t remember acting frightened and afraid there at the scene? A. You know what I was afraid of? [Q.] Yeah. A. When he put Mr. Howard in the car, I begged him not to take him to jail because he registered .9; I’m registering a .7. Why — why didn’t he take me? That’s the only thing I asked him.”

In addition to the foregoing evidence of Howard’s test results, other evidence at trial showed that Howard drank alcohol on the date the incident occurred. Officer Adams testified that he detected an odor of alcohol about Howard’s person. The victim testified that they both drank alcohol on the day of the incident. Likewise, Howard admitted to drinking alcohol.

At the motion for new trial hearing, Howard’s trial counsel testified that the victim’s statement concerning the test results appeared to be an unresponsive answer. He explained that he did not object because there was other testimony about Howard’s consumption of alcohol, and he thought the statement was merely cumulative of the other evidence and therefore harmless. In light of this other evidence, trial counsel testified that he decided to concentrate on the more serious charge of aggravated assault. Clearly, trial counsel’s explanation was one of trial strategy motivated by a desire to focus upon the charge of aggravated assault. “Particularly in regard to matters of trial strategy and tactic, effectiveness is not judged by hindsight, result, or how another lawyer may have conducted the defense.” Williams v. State, 214 Ga. App. 106 (446 SE2d 789) (1994). Consequently, the trial court’s denial of Howard’s motion was not clearly erroneous. Id.

2. Howard also contends that his trial counsel was ineffective because he failed to present expert testimony about the condition of the van’s brakes at the time the incident occurred.

At the motion for new trial hearing, Howard’s trial counsel testified that Howard told him about the defective brakes prior to trial and identified Randy Michaels as the individual who could verify that the brakes were defective at the time of the collision because Michaels checked the brakes the day after the collision. But trial counsel’s interview of Michaels revealed that Michaels never checked the brakes. Trial counsel further testified that he did not have a mechanic check the brakes himself because so much time had passed between the date of the incident and the date he was appointed to the case. Furthermore, Howard failed to introduce any evidence that an expert witness would have testified that the brakes were defective.

Decided May 4, 1998

Sidney P. Wright, for appellant.

Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

“In assessing the prejudicial effect of counsel’s failure to call a witness (whether that failure resulted from a tactical decision, negligent oversight, or otherwise), a [defendant] is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case. ‘(T)he failure of trial counsel to employ evidence cannot be deemed to be “prejudicial” in the absence of a showing that such evidence would have been relevant and favorable to the defendant. Because [Howard] failed ... to make any proffer of the uncalled [witness’] testimony, it is impossible for [him] to show there is a reasonable probability the results of the proceedings would have been different.’ ” Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995). Accordingly, ineffective assistance is not shown under these circumstances. Strickland, supra.

Judgment affirmed.

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


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A98A0376.
    HARDIN v. LEITCH et al.
    (502 SE2d 288)
   McMurray, Presiding Judge.

Pro se plaintiff Hardin filed this action for damages predicated on theories of conversion and intentional infliction of emotional distress. Named as defendants are RTP Townhouse Association, Inc. and its president, Joan Leitch, who is sued in her individual capacity. The complaint alleges that defendants unlawfully removed plaintiff’s motor vehicle from a public street causing emotional distress to plaintiff.

This appeal is taken from a superior court’s order ruling on defendants’ motions for summary judgment. The superior court denied defendants’ motion for summary judgment on plaintiff’s conversion claim. Summary judgment was granted to defendants on plaintiff’s claim of intentional infliction of emotional distress. Plaintiff appeals. Held:

Decided May 4, 1998.

Ruth C. Hardin, pro se.

Cynthia B. Brown, for appellees.

1. “In order to prevail on a claim for intentional infliction of emotional distress, a defendant’s conduct must be ‘so extreme in degree, as to go beyond all [reasonable] bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ (Citation and punctuation omitted.) Turnbull v. Northside Hosp., 220 Ga. App. 883, 884 (2) (470 SE2d 464) (1996). ‘Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.’ (Citation and punctuation omitted.) Vidrine v. American Professional Credit, 223 Ga. App. 357, 360 (3) (477 SE2d 602) (1996).” Martin v. North American Van Lines, 226 Ga. App. 187, 190 (2) (c) (485 SE2d 815). The evidence in the case sub judice falls far short of showing the outrageous and egregious conduct which will support a claim for intentional infliction of emotional distress. Defendant Leitch, seeking to remove an improperly parked vehicle, spoke with a resident of plaintiff’s home and tagged the vehicle with a copy of the corporate defendants’ car towing policy before finally having the vehicle towed away. There is no suggestion that plaintiff was involved in any confrontation involving the towing of the vehicle, or that she was present when the towing occurred. Wellborn v. DeKalb County School Dist., 227 Ga. App. 377, 378 (3) (489 SE2d 345). The superior court did not err in granting summary judgment to defendants on plaintiff’s claim of intentional infliction of emotional distress.

2. Plaintiff’s remaining enumerations of error relate only to her surviving conversion claim and are not ripe for appellate review. The superior court denied defendants’ motion for summary judgment on the conversion claim, a ruling which was favorable to plaintiff. While plaintiff moved for partial summary judgment on the conversion claim, there has been no ruling below on plaintiff’s motion and we may not address these issues in the first instance. Sharpnack v. Hoffinger Indus., 223 Ga. App. 833, 836 (3) (479 SE2d 435).

Judgment affirmed.

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


text:
    A98A0392.
    HOLMES v. HOLMES.
    (502 SE2d 294)
   McMurray, Presiding Judge.

Dorothy Shores Holmes (“petitioner”) filed a petition for a year’s support against the estate of John Thomas Holmes, deceased (“the estate”) in the Probate Court of Muscogee County, Georgia. After the estate’s executor challenged petitioner’s claim that she was the deceased’s common law spouse, the probate court conducted an evidentiary hearing and, denied petitioner’s claim. The probate court entered the following findings of fact: “The Court finds that although Decedent John T. Holmes and Applicant Dorothy Shores cohabited, no marriage contract was established. Decedent and applicant did not enter into a ceremonial marriage nor did the mere fact of cohabitation effect a marriage contract by operation of law.” This appeal followed. Held:

1. Petitioner contends the probate court erred in denying her petition for a year’s support, arguing that the evidence demands a finding that she was the decedent’s common law wife.

“ ‘When the alleged marriage is unlicensed and nonceremonial, the burden is on the proponent to prove that a common-law marriage existed.’ Baynes v. Baynes, 219 Ga. App. 848, 849 (1) (467 SE2d 195) (1996). ‘In order for a common law marriage to come into existence, the parties must be able to contract, must agree to live together as man and wife, and must consummate the agreement. See OCGA § 19-3-1; (cit.)’ Ga. Osteopathic Hosp. v. O’Neal, 198 Ga. App. 770, 777-778 (10) (403 SE2d 235) (1991).” (Footnote omitted.) Wright v. Goss, 229 Ga. App. 393, 394 (1) (494 SE2d 23). An agreement to marry in the future is insufficient to establish a common law marriage. Such a bond can be established under OCGA § 19-3-1 only by an express, present marriage contract. Peacock v. Peacock, 196 Ga. 441, 447 (26 SE2d 608).

In the case sub judice, there is proof that the decedent invited petitioner to move in with him; that petitioner resided with the decedent from December 22, 1995, until the decedent’s death on November 3, 1996; that petitioner sold her house to accommodate this arrangement; that petitioner and the decedent had an intimate physical relationship, and that petitioner and the decedent informed friends, associates and family members that they were husband and wife. There is no proof, however, that petitioner and the decedent entered into a present marriage contract as is required under OCGA § 19-3-1. On the contrary, our examination of petitioner’s hearing testimony reveals that petitioner and the decedent never stood face to face, at a specific point in time, vowing allegiance as husband and wife. Petitioner’s testimony shows only that she had an aspiration for marriage, explaining during direct examination that the decedent merely “asked [her] to move in with him and maybe, you know, the marriage would come later.” Under such circumstances, and in the absence of proof that petitioner and the decedent came together for selfless unity, we find that the probate court correctly judged that petitioner was not the decedent’s common law spouse. The probate court, therefore, did not err in denying petitioner’s claim for a year’s support. See Peacock v. Peacock, 196 Ga. 441, supra, where that plaintiff testified to an agreement to marry at a future date, but did not testify to a present marriage contract. Compare Brown v. Brown, 234 Ga. 300, 301-302 (215 SE2d 671), where there was proof which authorized a finding of the essential elements of an express marriage contract.

Decided May 4, 1998.

Powell & Tante, Joseph W. Powell II, for appellant.

Hagler, Hyles, Adams & McKenna, M. Stephen Hyles, for appellee.

2. We hereby deny the estate’s motion for frivolous appeal damages under Court of Appeals Rule 15 (b).

Judgment affirmed. Motion for damages for frivolous appeal denied.

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


author: Judge Harold R. Banke.

text:
    A98A0417.
    MARTIN v. TRUE.
    (502 SE2d 285)
   Judge Harold R. Banke.

Melanie Ann Martin, the mother of two minor children, ages nine and twelve, instituted this action against the children’s biological father, John Frederick True III. We granted her application for discretionary appeal from the trial court’s award of joint legal custody to the biological parents, sole physical custody to Martin and visitation to True. Martin enumerates six errors.

This case began as a divorce action. However, after the trial court ruled that the parties were never married, the action devolved into a custody battle. Both parties have acquired spouses since they parted. Held:

1. Notwithstanding Martin’s contention to the contrary, the record fails to show that the trial court arbitrarily and capriciously terminated the trial midstream. The record shows that the parties agreed to try to settle the visitation issue affer the trial court ruled on custody. Subsequently, the trial court directed counsel and the guardian ad litem to a meeting in chambers during which a method for resolving the case was purportedly agreed upon. This meeting was not recorded, but according to the guardian ad litem, Martin’s counsel agreed to settle the matter there.

The party alleging error bears the burden of showing it affirmatively by the record. Gillespie v. Gillespie, 259 Ga. 838 (388 SE2d 688) (1990). Absent a transcript of the meeting in chambers, we must presume that the trial court acted properly in terminating the proceedings. Id.

2. Martin waived her argument that the trial court prohibited the children’s therapist from testifying. After Martin called the therapist to the stand, she refused to testify unless the parents and stepparents signed waivers or the court gave her permission. True declined to sign. Martin’s counsel then stated “I have never experienced a problem, such as this, so I don’t really know what to do, unless we can get Mrs. Baxt [Martin] to sign the waiver and continue, or if you would be willing to let her waive the privilege.” When the court declined to give permission and asked if there was anything else from the witness, Martin’s counsel answered in the negative. This demonstrates that Martin acquiesced to the court’s decision, thereby failing to preserve the alleged error. Capes v. Bretz, 195 Ga. App. 467, 469 (2) (393 SE2d 702) (1990).

3. The record also belies Martin’s contention that the guardian ad litem failed to file a final report. It was filed on February 25,1997.

Martin further argues that she should have been permitted to reconvene the trial in order to cross-examine the guardian ad litem, apparently about a comment in a letter True’s counsel wrote to the court which stated that the guardian ad litem had indicated that True’s proposed order of judgment reflected her understanding of the court’s ruling.

Assuming solely for the sake of argument that Martin correctly identified this letter as an ex parte communication, the purported comment addresses only the form of the order True prepared. Thus, “[i]t is not approval of the substance (result) of the order . . . , but a showing that [the guardian ad litem] has seen the proposed order and agrees that it contains what the court orally directed be included in it.” Rude v. Rude, 241 Ga. 454, 455 (1) (246 SE2d 311) (1978). Accordingly, we fail to see how Martin was harmed by this comment, particularly when she did not challenge the form of the proposed order. The absence of any evidence of direct contact between the guardian ad litem and the trial court or any substantive communication between them about the case are facts which distinguish Arnau v. Arnau, 207 Ga. App. 696 (429 SE2d 116) (1993), on which Martin misplaced her reliance.

4. The trial court did not err in prohibiting Martin from testifying about her children’s purported reports of exposure to harassment by their stepbrother. The record shows that the court barred Martin from providing hearsay testimony about such things as a visit her children purportedly did not enjoy. Notwithstanding Martin’s contention to the contrary, nothing in the testimony Martin cites brings it within the ambit of the Child Hearsay Statute, which applies only to descriptions of physical abuse and sexual contact. OCGA § 24-3-16.

Further, nothing in the record supports Martin’s assertion that the trial court prohibited the children from testifying. The proceedings simply concluded with the settlement agreement before the children testified.

5. Martin claims the trial court abused its discretion by granting joint custody and visitation to True. Having read and considered the entire record in this case, we cannot say the custody arrangement in this case constitutes an abuse of discretion. OCGA § 19-9-3 (a) (2); see Scott v. Scott, 227 Ga. App. 346, 347-348 (1) (489 SE2d 117) (1997).

The guardian ad litem stated at trial that the children desired to reside with their mother and have visitation, with constraints, with their father. The constraints imposed included a provision prohibiting the parties from consuming alcohol while the children were with them. The court also prohibited any physical contact between the nine-year-old daughter and True’s teenage stepson and required adult supervision any time they were together. These provisions were added in consideration of the facts that True pleaded nolo contendere to simple battery on his new wife and was convicted of driving while intoxicated and his daughter alleged that her stepbrother touched her on the leg. Because the consequences of deviating from these directives are grave, the children appear to desire contact with their father, and True appears deeply interested in the welfare of his children, we cannot say that the trial court abused its discretion in granting True visitation rights with these constraints. See Scott, 227 Ga. App. at 350 (3); see OCGA § 19-9-3 (a) (3) (A).

6. The provision in the trial court’s order requiring Martin to provide transportation to and from True’s residence should she move more than 40 radial miles from the county courthouse did not constitute an abuse of discretion. That provision simply memorialized Martin’s own offer made during trial while testifying that she and her new husband were considering moving to North Carolina. In any event, the issue is waived by Martin’s failure to register an objection in the trial court.

Decided May 4, 1998.

Stern & Edlin, Shiel G. Edlin, Janis Y. Dickman, for appellant.

Weinstock & Scavo, John P. Wilson III, Rachel A. Elovitz, C. Lane Graves, for appellee.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

       The record also shows that prior to the final hearing the trial court had already held three temporary custody hearings on this matter.

       Nor is there any record that Martin signed the waiver.

       This letter was apparently filed with the court and is included in the record on appeal. Martin complains that she did not receive it, notwithstanding the fact that the letter indicated that her counsel was served.

       Neither of the incidents involving the father occurred in the children’s presence.


text:
    A98A0534.
    SMITH v. LINKWELL INDUSTRIES, INC.
    (502 SE2d 296)
   Judge Harold R. Banke.

When Linkwell Industries, Inc. d/b/a Olympic Tires (“Linkwell”) sued for payment on a sales account, Richard O. Smith d/b/a Industrial Tire Service (“Smith”) counterclaimed for special and consequential damages. Smith does not contest the summary judgment regarding his indebtedness but challenges the dismissal of his counterclaim.

The underlying action arose after Smith, who is in the business of selling and installing industrial grade forklift tires, purchased some defective tires from Linkwell. After Linkwell sued on the unpaid account balance, Smith counterclaimed for business losses allegedly sustained due to failure of a significant number of the tires. Linkwell argued that a limited warranty completely foreclosed Smith’s counterclaim. In dismissing Smith’s counterclaim, the trial court apparently agreed with Linkwell.

It is undisputed that Linkwell, a California corporation, supplied some defective tires to Smith’s Georgia business. Jackee Savage, Linkwell’s California-based credit manager, asserted that Smith received a limited warranty that expressly restricted Linkwell’s liability for the defective tires. This warranty provides, “[t]he buyer agrees that replacement or adjustment, as aforesaid, shall be the exclusive remedy and that Olympic Tyres shall not in any event be held liable for any special, indirect, or consequential damages.” Savage claimed that “[t]he warranty is printed on all sales literature and price lists.”

Smith’s testimony diametrically contradicted Savage’s version of events. Smith testified that at no time before commencing business with Linkwell had he been presented with a copy of the limited warranty at issue. Smith asserted that when he placed his orders by telephone to Linkwell’s Chattanooga facility, no mention was made of any limitation on liability and that he never consented to any such restriction. Smith testified that Linkwell represented the tires as the “best product available in the marketplace” and assured him that prior manufacturing defects had been corrected and that the tires would be “defect free.” Held:

In his sole enumeration of error, Smith contends that the existence of genuine issues of material fact about the existence of and applicability of the limited warranty precluded summary judgment. We agree. See Mark Singleton Buick v. Taylor, 194 Ga. App. 630, 632 (1) (391 SE2d 435) (1990).

As the record evidence indicates, Smith and Linkwell dispute an extremely crucial fact, i.e., the existence of any limited warranty which could apply to this transaction. Smith denied Linkwell’s claim that he had received a copy of the limited warranty. Moreover, Linkwell failed to offer any evidence as to when this undated one-page form titled “Limited Warranty” became effective or how, when, or where it purportedly was included in any price lists or sales catalogs. Nor did Linkwell show that it ever sent any price lists or sales catalogs containing this warranty to Smith. Compare A-Larms, Inc. v. Alarms Device Mfg. Co., 165 Ga. App. 382, 386 (2) (300 SE2d 311) (1983) (buyer’s ignorance of warranty terms not excused by failure to request or examine document made available through catalog offer to provide copy of the written, limited warranty upon request). Linkwell provided no documentation to substantiate its assertion that Smith received a copy of the warranty or that this particular warranty applied to the underlying sale.

After construing the evidence more favorably toward Smith, as we must in this procedural context, we conclude that in light of these disputed material facts, Linkwell was not entitled to summary judgment. Edwards v. Edwards, 267 Ga. 780, 781-782 (2) (482 SE2d 701) (1997); OCGA § 9-11-56 (c).

Decided May 4, 1998.

Charles E. LeGette, Jr., for appellant.

Howe & Associates, John J. Maurer, for appellee.

Judgment reversed.

Pope, P. J., and Beasley, J., concur.

       Based on Smith’s admissions, the court granted summary judgment on Linkwell’s claim.

       “Olympic Tyres makes no other warranty, express or implied and specifically disclaims and excludes any and all warranties on merchantability and fitness for a particular purpose.”

       Savage admitted that “[a] bond failure on the tires occurred,” and stated that “[t]he tires are manufactured in China and this defect cannot be discovered until about 10 days use.”


author: Andrews, Chief Judge.

text:
    A98A0653.
    DENNEY et al. v. COWETA COUNTY et al.
    (502 SE2d 297)
   Andrews, Chief Judge.

This is an appeal from the trial court’s order finding that the Denneys’ tractor was subject to ad valorem taxes as agricultural equipment. The Denneys argue on appeal that the trial court erred in determining that the tractor was not exempt personalty under OCGA § 48-5-42. For the reasons which follow, we agree and reverse the judgment.

Taxable property is defined under OCGA § 48-5-3 as follows: “All real property including, but not limited to, leaseholds, interests less than fee, and all personal property shall be liable to taxation and shall be taxed, except as otherwise provided by law. Liability of property for taxation shall not be affected by the individual or corporate character of the property owner or by the resident or nonresident status of the property owner.” OCGA § 48-5-3.

Personalty is exempt under OCGA § 48-5-42 as follows: “All personal clothing and effects, household furniture, furnishings, equipment, appliances, and other personal property used within the home, if not held for sale, rental, or other commercial use, shall be exempt from all ad valorem taxation. All tools and implements of trade of manual laborers and all domestic animals shall be exempt from all ad valorem taxation in an amount not to exceed $300.00 in actual value for each of the two categories.” OCGA § 48-5-42.

The facts in this case are undisputed. The tractor in question, a Kubota 2400 tractor, tiller and scraper valued at $11,000, is used solely for the Denneys’ garden and lawn. The Denneys do not sell any produce raised in their garden, keeping it all for their own use. Nevertheless, the county argues the Department of Revenue classifies this tractor as taxable agricultural equipment under Ga. Department of Revenue Regulation 560-11-2-.20.

Although we have found no case law interpreting OCGA § 48-5-42, there is an Attorney General opinion interpreting the meaning of “in the home” in a predecessor statute, Ga. Code Ann. § 92-239. In that opinion, the Attorney General stated that “in the home” meant that the personal property must be used for the direct support of the members of the family and not as income-producing property. 1962 Op. Atty. Gen., pp. 506-507.

Decided May 4, 1998.

Holland & Knight, R. Phillip Shinall III, Keith J. Reisman, for appellants.

Glover & Davis, Jerry A. Conner, Asa M. Powell, Jr., for appellees.

We find the Attorney General’s opinion persuasive in light of the facts in this case and in light of case law holding that in determining whether property is exempt from taxation, “ ‘[i]t is the use made of the property .. . . which determines the matter of taxation.’ ” Alford v. Emory Univ., 216 Ga. 391, 398 (116 SE2d 596) (1960); Ga. Mausoleum Co. v. City of Dublin, 147 Ga. 652, 653 (95 SE 233) (1918).

Here, the County does not dispute that the tractor is used solely for the direct support of the members of the family. Accordingly, we hold that the tractor is exempt personalty under OCGA § 48-5-42 and cannot be taxed as agricultural equipment.

Judgment reversed.

McMurray, P. J., and Eldridge, J., concur.

       This statute does not differ materially from OCGA § 48-5-42 and provides as follows: “All personal clothing, household and kitchen furniture, personal property used and included within the home, domestic animals and tools, and implements of trade of manual laborers, but not including motor vehicles, are exempt from all State, county municipal and school district ad valorem taxes, in an amount not to exceed $300 in actual value.” Ga. Code Ann. § 92-239.

       Although the Attorney General’s opinions are not binding on appellate courts, they may be considered as persuasive authority. Campbell v. Poythress, 216 Ga. App. 834, 835 (456 SE2d 110) (1995).


author: Johnson, Judge.

text:
    A98A0850.
    BURGESS v. THE STATE.
    (502 SE2d 303)
   Johnson, Judge.

A jury found Jeffrey Brinton Burgess guilty of possession of methamphetamine. Burgess appeals the denial of his motion to suppress evidence seized at his business pursuant to a search warrant. We find the trial court committed no error and affirm.

The evidence, viewed in a light most favorable to support the jury’s verdict, shows that in March 1995 an investigator with the Douglas County Sheriff’s Office received information from a number of sources indicating that Burgess was involved in drug dealing. Specifically, a female informant stated that a man known as “Jeff,” who runs a tattoo parlor, is involved in drug sales; that two teenage boys who lived at Jeff’s house smelled of marijuana when they were around her; and that there was a lot of vehicle traffic at Jeff’s house. The informant gave Jeff’s address. A male informant indicated that Jeff Burgess runs a tattoo parlor called “Tattoos by Miami” on Highway 5 and was selling marijuana and methamphetamine. In July 1995, an employee at the Douglas County Courthouse told the investigator that a friend of hers said the owner of a tattoo business on Highway 5 was selling drugs.

On November 1, 1995, a police officer informed the investigator that officers had stopped two persons leaving the tattoo shop in a vehicle normally driven by Burgess; no drugs were found in the vehicle, but one of the individuals stopped had $2,000 in cash and a criminal record for narcotics. A GBI agent informed the investigator that he received a tattoo from Burgess and had discussed buying and selling methamphetamine with Burgess, but that he had not had time to pursue the investigation. The investigator observed the tattoo parlor for one hour and eleven minutes, during which time eight vehicles came and left with each person remaining approximately ten minutes.

On March 5, 1996, the investigator was contacted by an individual with the Cobb County narcotics unit, who indicated Burgess was a resident of Douglas County who owned a tattoo business named “Miami’s.” According to this individual, Burgess was selling large amounts of methamphetamine at his business and had relocated from Cobb to Douglas County after learning he was under investigation.

Three months later, the investigator received an anonymous call from an informant who stated that Jeff Burgess at Tattoos By Miami sells “crank” (methamphetamine) and supplies drugs in Douglas County and at the “Mardi Gras Club” in Atlanta. The caller stated Burgess keeps drugs in a safe located at his tattoo business, which had been moved from Highway 5 to another location. The caller stated Burgess is supplying a woman named “Jenna” with cocaine and methamphetamine and that Jenna drove a green Corvette, owned a beauty salon on Highway 5, and lived on South Baer Drive in Douglasville. The investigator identified “Jenna” as Jenna Dorn Harrison and observed Burgess enter Harrison’s salon on several occasions, stay a few minutes and leave.

In June 1996, the investigator went to Harrison’s residence to speak with her. After receiving her consent to search, the investigator recovered cocaine and marijuana from the residence and Harrison’s purse. Harrison admitted she was addicted to drugs and was buying from a local dealer, but would not give the dealer’s name.

Also in June 1996, the investigator received information from another law enforcement agency that a person named Jeff Burgess with a tattoo business and living in Douglas County might be involved in drug sales. In addition, another investigator received an anonymous phone call that Burgess was currently in possession of one pound of methamphetamine at his tattoo shop. The caller stated a 17-year-old boy had purchased methamphetamine from Burgess several hours earlier. This other investigator went to the tattoo shop and observed numerous vehicles coming and going, each staying for a short period of time.

Based on this information, the initial investigator prepared a search warrant and affidavit which was issued on September 27, 1996. A number of officers proceeded to the tattoo parlor. Burgess was found at the tattoo parlor, and the investigator retrieved his wallet on a counter in plain view. The wallet contained Burgess’ driver’s license, other personal papers, and two plastic bags, one of which contained methamphetamine.

While at the tattoo parlor, officers encountered Melinda Peppers, an associate of Burgess. A compact in her purse contained cocaine. Peppers was given Miranda warnings, after which she stated the compact could contain cocaine or methamphetamine since she had used both. While searching the tattoo parlor, officers found hemostats used to smoke marijuana, marijuana seeds, a razor blade, and assorted pills. James Becker and Christy Williams arrived at the tattoo parlor during the search and were found to be in possession of marijuana. Williams is Burgess’ girl friend.

Peppers testified as the sole defense witness. She stated that Burgess was commonly known by the nickname “Miami.” She also admitted frequent past use of cocaine, methamphetamine, marijuana, and ecstasy.

1. In his first enumeration of error, Burgess contends the trial court erred in denying his motion to suppress evidence seized from his business. According to Burgess, the search warrant was improperly issued because the officer’s affidavit was based solely on hearsay and unreliable information. This assertion is incorrect, but even if it were correct, the trial court properly denied Burgess’ motion to suppress under the totality of the circumstances analysis.

“In determining whether probable cause supported issuance of a search warrant, a ‘totality of the circumstances’ test is employed. The task of the issuing [judge] is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the [judge] had a substantial basis for concluding that probable cause existed.” (Citations and punctuation omitted.) Gibson v. State, 223 Ga. App. 103, 104 (3) (476 SE2d 863) (1996).

“Although the affidavit failed to supply information as to the past reliability and veracity of the informants, the corroboration of the information by multiple sources reduced the chances of a reckless or prevaricating tale.” (Citations and punctuation omitted.) Welch v. State, 231 Ga. App. 74, 75 (1) (498 SE2d 555) (1998). “Even if an officer cannot provide information regarding the veracity of an informant or the basis of his knowledge, a tip may be proved reliable enough to provide probable cause if portions of the tip are sufficiently corroborated.” (Citations and punctuation omitted.) Stewart v. State, 217 Ga. App. 45, 47 (456 SE2d 693) (1995).

A review of the affidavit at issue reveals that some of the sources had gained first-hand knowledge of Burgess’ drug activities: they smelled marijuana on two people, observed traffic at Burgess’ business, and found a large amount of cash on one individual with a drug record as he left Burgess’ business. In addition, the investigator received information from a number of fellow officers, and as officers, their information is presumed to be reliable as a matter of law. See McConville v. State, 228 Ga. App. 463, 466-467 (2) (491 SE2d 900) (1997).

In this case, the investigator received information from nine sources over the course of eighteen months that Burgess was involved in illegal drug activity, culminating in information that he currently possessed drugs at the tattoo parlor the day the search warrant was issued. The investigator corroborated this information through independent investigation and surveillance. Sufficient information was presented to allow the trial judge to determine that Burgess “was engaged in a continuing scheme to sell illegal drugs over a period of several months.” Tabb v. State, 250 Ga. 317, 323 (2) (b) (297 SE2d 227) (1982). The trial judge did not abuse his discretion in finding there was a fair probability that contraband would be found at Burgess’ tattoo parlor and in issuing the search warrant. The trial court did not err in denying Burgess’ motion to suppress.

2. In his second enumeration of error, Burgess contends the trial court erred in admitting into evidence the plastic bag containing methamphetamine found in his wallet. However, Burgess does not support this enumeration of error by citation of authority or argument. It is therefore deemed abandoned. Court of Appeals Rule 27 (c) (2). Moreover, based on our ruling in Division 1, this enumeration lacks merit.

Judgment affirmed.

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

Decided May 4, 1998.

William, V. Hall, Jr., for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.


text:
    A98A0941.
    THE STATE v. LONG.
    (502 SE2d 298)
   Johnson, Judge.

George T. Long was indicted for homicide by vehicle in the second degree, improper stopping, involuntary manslaughter, reckless conduct, possession of cocaine, and driving under the influence of drugs. Pursuant to OCGA § 5-7-1 (a) (4), the State appeals the trial court’s order granting Long’s motion to suppress the result of a blood test as to the possession of cocaine charge.

This incident arose from a collision involving three vehicles. Long was driving a trash truck northbound when a wooden block fell off it onto the road. He stopped the truck to retrieve the block. The truck was stopped just beyond a hill crest and blocked about half of the northbound lane. An ambulance struck the rear of the trash truck, slid into the southbound lane and collided with an approaching automobile. The driver of the automobile died from injuries received in the collision.

Long was indicted and brought to trial. The trial court granted his motion to sever the driving under the influence of drugs and possession of cocaine charges from the vehicular homicide and improper stopping charges. During a jury trial on the vehicular homicide and improper stopping charges, the trial court granted Long’s motion for a directed verdict of not guilty. Prior to being tried on the remaining charges of cocaine possession and driving under the influence of drugs, Long filed a motion to suppress his blood and urine test results as to the cocaine possession charge. Long argued that he consented to blood testing only to determine whether he was driving under the influence of alcohol or drugs, and that use of the test results to prove his possession of cocaine was beyond the scope of his voluntary consent. The trial court found that the police requested Long to submit to a chemical test of his blood, under the provisions of OCGA § 40-5-67.1, to determine whether he was under the influence of alcohol or drugs, and granted Long’s suppression motion.

In reviewing a trial court’s ruling on a suppression motion, evidence is construed most favorably to uphold the findings and judgment. Burse v. State, 209 Ga. App. 276 (433 SE2d 386) (1993). When consent to search is in issue, the State has the burden of proving the consent was freely and voluntarily given. Garcia v. State, 195 Ga. App. 635, 636 (1) (394 SE2d 542) (1990). The validity of a consent to search is determined from all the circumstances. Id. at 637 (1). A police officer cannot arbitrarily expand the scope of the consent to search. See State v. Diaz, 191 Ga. App. 830, 832 (2) (383 SE2d 195) (1989). A consensual search is invalid when it exceeds the scope of the consent. Amato v. State, 193 Ga. App. 459, 460 (388 SE2d 54) (1989).

The relevant facts are not in dispute. Both at the scene of the accident and at the hospital, police officers read Long the “implied consent warning” as prescribed by OCGA § 40-5-67.1 (b), directly from implied consent cards. Long was told that he was required by Georgia law to submit to chemical tests “for the purpose of determining if you are under the influence of alcohol or drugs.” The warnings placed Long on notice of the administrative action which could result if he refused the test and that his refusal could be offered in evidence at trial. However, the warning did not inform him that the evidence could be used against him for purposes other than determining if he was “under the influence of alcohol or drugs.”

In State v. Jewell, 228 Ga. App. 825 (492 SE2d 706) (1997), the defendant was read the implied consent warning and submitted to a blood test. When his blood sample tested positive for cocaine metabolite, the defendant was charged with possession of cocaine. He filed a motion to suppress contending that use of the test result to support prosecution of the possession charge was beyond the scope of his consent. The trial court granted the motion, and the State appealed. In affirming the trial court’s judgment this Court held: “[T]he implied consent warning has been amended so that defendant . . . was requested to submit to a test Tor the purpose of determining if you are under the influence of alcohol or drugs.’ Such representations concerning the nature of the test to be performed or the use to which the test results will be applied are binding upon the State. The decision in [State v. Gerace, 210 Ga. App. 874 (1) (437 SE2d 862) (1993)] rests upon Beasley v. State, 204 Ga. App. 214, 216-217 (1) (419 SE2d 92) [(1992)], in which a person was charged with possession of cocaine after testing of urine given pursuant to a consent for the purpose of determining bond. ‘This court held that consent for one purpose does not mean consent for ANY purpose, and therefore the consent was not the product of an essentially free and unrestrained choice.’ This reasoning also governs the case sub judice. The trial court did not err in granting [defendant’s] motion to suppress.” (Citations omitted.) Jewell, supra at 826; accord State v. Burton, 230 Ga. App. 753 (498 SE2d 121) (1998). We find Burton and Jewell to be controlling and affirm. Compare State v. Frazier, 229 Ga. App. 344, 345 (494 SE2d 36) (1997) (State failed to carry its burden of proving consent was the product of defendant’s essentially free and unrestrained choice).

Decided May 4, 1998.

Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellant.

James C. Wyatt, for appellee.

Judgment affirmed.

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


author: Pope, Presiding Judge.

text:
    A98A0397.
    CLEVELAND v. SNOWDROP PROPERTIES, N. V. et al.
    (501 SE2d 546)
   Pope, Presiding Judge.

Deborah Cleveland slipped and fell on wet leaves as she approached the entrance to the building in which she worked. She sued the building’s owner and management company (collectively, “Snowdrop Properties”). This Court reversed an earlier motion dismissing the case. Cleveland v. Snowdrop Properties, 221 Ga. App. 448 (471 SE2d 542) (1996). On remand, the trial court granted summary judgment to Snowdrop. We affirm.

This Court reviews de novo the grant of a motion for summary judgment to determine whether the trial court properly found that no material issues of fact existed and that the movant was entitled to judgment as a matter of law. Moore v. Food Assocs., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). “[T]o recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/ occupier.” Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997).

Cleveland arrived at work around 7:45 a.m. on a Monday morning in November 1992, parked in her usual deck parking area, and descended a flight of steps toward her building. It had rained over the weekend, and as she descended the steps she noticed the sidewalk was covered in two inches of leaves. Additionally, other leaves were blowing around in the fall weather. Cleveland crossed the sidewalk, took a few steps onto the paved brick area, and slipped on what she later determined were five or six wet leaves stuck together. After she fell, she noticed her legs and hands were wet. According to Cleveland, the leaves on which she slipped were not visible against the dark brick. She was aware of the weekend’s rain and of the fact that wet leaves are slippery.

Cleveland testified that she did not know how long the leaves had been present. There were no leaves in the area when she left work the previous Friday, and she had not seen fallen leaves in the vicinity during the two years she worked there. She makes no allegation that any agent of the building’s owner or management had actual knowledge of the leaves. While she had in the past seen cleaning crews blowing the walkways in the mornings, she saw no maintenance personnel on the morning she fell.

The evidence shows the wet leaves were the natural result of the fall season and the weekend’s rain. Although we find no reported cases involving a slip on a natural accumulation of wet leaves, we find this case analogous to two other types of cases: those involving slips on a business’s premises during either rainy or icy weather. For example, in Columbus Doctors Hosp. v. Thompson, 224 Ga. App. 682 (482 SE2d 705) (1997), the plaintiff slipped in a hospital parking lot on a Monday following a weekend snowstorm. Although the plaintiff saw snow and slush in the vicinity, she slipped on an invisible patch of ice. No evidence showed the hospital had actual knowledge of the ice hazard. We affirmed the grant of summary judgment to the hospital, holding, “where ice accumulated on a premises is naturally occurring and not attributable to any affirmative action on the proprietor’s part, the proprietor has no affirmative duty to discover and remove it in the absence of evidence that it had become an obvious hazard by means other than natural accumulation. [Cit.]” Id. at 684. Accord Speaks v. Rouse Co., 172 Ga. App. 9, 10 (321 SE2d 774) (1994). Similarly, in Fisher v. HBS Mgmt., 220 Ga. App. 752, 753 (469 SE2d 885) (1996), we found the plaintiff could not recover for her fall on ice where she “had equal knowledge of the weather conditions and knowledge at least equal to that of the defendants with respect to the condition of the parking lot. . . . [Cit.]” We have given like treatment to cases in which plaintiffs have fallen near the wet entrance to a building on a rainy day, holding that “when it rains, the ordinary person is aware that water is apt to be found in any area frequented by people coming in from the rain outside.” Roby v. Kroger Co., 219 Ga. App. 459, 460 (465 SE2d 496) (1995).

Cleveland does not claim that Snowdrop Properties had actual knowledge of the leaves or that the defendants did anything to cause the leaves to accumulate. Rather, she claims the defendants did not take reasonable measures to discover and remove the fallen leaves. As in Thompson, 224 Ga. App. at 684, we find under the circumstances that the property owner or management company had no duty to discover and remove the leaves. Cleveland points to evidence showing that the building owner and its management company had a contract requiring removal of leaves and debris, but “[a]n action in tort cannot be maintained by a third person not privy to the contract for a mere contractual obligation between the defendant and the other contracting party.” (Citation and punctuation omitted.) Westbrook v. M & M Supermarkets, 203 Ga. App. 345, 346 (2) (416 SE2d 857) (1992).

Decided April 8, 1998

Reconsideration denied May 5, 1998

Paul R. Vancil, for appellant.

Moreover, even if Snowdrop Properties had a duty to discover and remove the leaves, no evidence shows it breached that duty because no evidence shows that the wet leaves remained on the paved area “for a sufficient amount of time that they should have been discovered and removed in a reasonable inspection of the premises. . . .” Johnson v. Autozone, 219 Ga. App. 390, 393 (465 SE2d 463) (1995). Here, evidence shows the leaves were being blown around by the wind, and no evidence shows how long the leaves on which Cleveland slipped were present. This incident occurred early on a Monday morning, and the leaves had not been present at the end of the previous Friday. As no evidence in the record shows that the wet leaves were on the brick area long enough that a reasonable inspection would have discovered them, Snowdrop cannot be liable on this ground. See Whisby v. Bruno’s Food Stores, 228 Ga. App. 597, 598 (492 SE2d 338) (1997).

We also reject Cleveland’s argument that Snowdrop Properties had superior knowledge of the hazard because it had received prior reports of individuals slipping in the vicinity of the building entrance. A review of the evidence Cleveland provides in support of this argument shows, at best, only that others had slipped or fallen in the area when it was “wet.” Cleveland provided no evidence that Snowdrop Properties was aware of the hazard of wet leaves, and the evidence shows that Snowdrop’s knowledge of that particular hazard was no greater than Cleveland’s. See Thompson, 224 Ga. App. at 684; Roby, 219 Ga. App. at 460.

Cleveland’s charge that the use of dark-colored brick in the plaza area was negligent is patently meritless. Although this color of brick may have made the leaves more difficult to see, that factor is not material to our decision here. Were we to accept such a claim, another party could just as easily argue that the use of light-colored paving material is negligent because it makes light-colored foreign substances more difficult to see.

As the trial court properly granted summary judgment to Snowdrop Properties, we affirm its ruling.

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

Swift, Currie, McGhee & Hiers, John W. Campbell, Willie C. Adams, for appellees.

       This applicable standard of proof on summary judgment is derived from Lau’s Corp. v. Haskins, 261 Ga. 491 (1) (405 SE2d 474) (1991). Although Robinson v. Kroger Co. changed the burdens on motion for summary judgment with regard to proof of the plaintiff’s negligence, it did not alter the Lau’s Corp. formula as it applies to proof that the defendant had actual or constructive knowledge of the hazard.


text:
    A98A0429.
    DAVIS v. THE STATE.
    (501 SE2d 241)
   Pope, Presiding Judge.

Kevin Charles Davis was charged with felony murder, trafficking in methamphetamine, possession with intent to distribute hydromorphone and morphine, and possession of amphetamine, cocaine, marijuana, and methylphenidate. He was convicted of all charges except felony murder and was sentenced to 30 years’ prison time and a $300,000 fine. On appeal he challenges the sufficiency of the evidence supporting his convictions for trafficking in methamphetamine and possessing cocaine; claims his statements and evidence obtained in a search of his apartment should have been suppressed; and challenges his fine as excessive. We affirm the convictions but must vacate the sentence imposed for trafficking in methamphetamine because the fine exceeded that prescribed by the sentencing statute.

1. In two enumerations, Davis contends the statements he gave police, as well as the written consent to search his apartment, were tainted by the trooper’s “illegal arrest.” In reviewing the denial of this motion to suppress, we construe the record to uphold the trial court’s findings and judgment, recalling that the trial court, and not this Court, resolves issues of credibility and conflicting evidence. The trial court’s judgment on this matter is to be upheld unless clearly erroneous. Lee v. State, 222 Ga. App. 389, 391 (2) (474 SE2d 281) (1996).

The evidence showed that around 1:00 a.m. on March 31,1996, a ponytailed man wearing jeans and a tie-dyed shirt approached Beverly Morrow, a nurse at Sylvan Grove Hospital, and said a man was hurt and bleeding behind the Emergency Medical Services building next door. The ponytailed man walked away. The nurse called police, who quickly came and found a dead body in a vehicle parked behind the EMS building. As the ponytailed man had disappeared and no one knew what had happened to the dead man, police radioed a “lookout” for anyone of that description. A state trooper heard the radio dispatch and saw Davis, who fit the witness’s description, walking along the road in the vicinity of the hospital.

The trooper told Davis that police officers wanted to speak to him regarding the man behind the EMS building. Because the trooper had learned that that man was bleeding, he first frisked Davis for weapons. In Davis’ front pocket the trooper felt a hard object, which he asked Davis to remove. Davis pulled out a cigarette box, and the trooper patted the area again to ensure no weapons were in Davis’ pocket. Concerned that the box could contain a razor blade, needle, or other small weapon, the trooper opened the box, revealing two marijuana cigarettes. The trooper then arrested Davis. Davis later confessed that he had supplied drugs to the dead man and had carried his body to the EMS station when the man passed out due to an apparent overdose. Davis also gave officers consent to search his apartment, in which police found large quantities of drugs and drug-measuring devices. That search resulted in the charges for which Davis was convicted.

The trial court did not err when it found the trooper’s actions appropriate. The officer’s stop of Davis was justified under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). Terry permits officers to undertake “a protective ‘pat down’ of the outer surface of clothing for weapons if the officer has reasonable apprehension that the person is armed or dangerous, and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop.” (Citations and punctuation omitted.) Clinkscale v. State, 158 Ga. App. 597, 598 (1) (281 SE2d 341) (1981). Here, the trooper had ample cause to stop and question Davis and, considering the report that the victim was bleeding, had ample cause to believe Davis might be carrying a weapon. See Wold v. Minnesota, 430 NW2d 171, 175-176 (Minn. 1988) (detention and weapons frisk of witness to homicide upheld where crime had just occurred, circumstances of crime were not known, and police were attempting to “preserve the integrity of the scene until the true facts could be sorted out”). Construing the record in favor of the trial court’s ruling, it appears that when the trooper found the hard object in Davis’ pocket he reasonably believed it might be a weapon or contain a weapon, and he did not violate Davis’ rights by opening the box. Given the circumstances — a man was “down” and bleeding, and the officer had information that Davis was somehow involved — the officer was not limited to a mere pat-down of Davis’ clothing and could take the reasonable steps necessary to ensure Davis was not carrying some sort of weapon, however small. See Hayes v. State, 202 Ga. App. 204, 205-206 (414 SE2d 321) (1991). Compare State v. Newton, 227 Ga. App. 394, 396 (1) (489 SE2d 147) (1997) (upholding trial court’s suppression of officer’s intrusion into defendant’s wallet, where the trial court determined defendant represented no threat to officer). As the arrest was not “illegal,” it did not taint the subsequent confessions and consent to search.

2. In several enumerations, Davis contends his several statements to police were erroneously admitted. The transcript reveals that after Davis was arrested, a GBI agent interviewed him at the Jackson police station from approximately 5:00 to 6:00 a.m. Prior to this first interview, Davis, who had three years of college, was read his Miranda rights and signed a form stating he had been advised of his rights, was willing to talk about the dead man, and had received neither threats nor promises to induce his statement. During this interview, Davis first claimed he did not know the deceased and “happened” upon his body as he was walking home. He soon changed his story and admitted he knew the dead man, who had come to his apartment to use drugs. The GBI agent then obtained from Davis a signed consent to search the apartment.

Davis went with officers to his apartment, where a search was conducted and a sheriff’s investigator again interviewed Davis around 7:30 a.m. Davis showed the investigator the type of drugs he had given the deceased. Before a third interview just after noon, officers reminded Davis that his Miranda rights were still in effect, and Davis recounted his involvement with the deceased’s drug use. During a fourth interview, conducted the following day, Davis again acknowledged that he had supplied drugs to the deceased.

(a) Davis maintains the trial court should have suppressed his statements to police because he was not adequately advised of his Miranda rights. This enumeration is meritless. The record shows Davis was fully informed of his rights at 5:00 a.m. and waived them. He was interviewed for an hour, signed a consent to search his apartment, accompanied investigators there, and continued speaking with them. As the questioning at the apartment was part of a continuing interrogation interrupted only by a short time period and a change in location, officers were not required to remind Davis of the Miranda rights. See Rhodes v. State, 200 Ga. App. 193, 195 (3) (407 SE2d 442) (1991); McKenzie v. State, 187 Ga. App. 840, 844 (4) (371 SE2d 869) (1988). The record clearly shows officers did remind Davis of those rights when they interviewed him at noon the same day, and the record supports the inference that Davis remained aware of his rights during his final interview the next day. The original Miranda warnings did not become stale during that time period. See Moten v. State, 231 Ga. 642, 643 (203 SE2d 527) (1974).

(b) Davis also contends he made statements invoking his right to counsel, requiring officers to cease interrogating him. During the interview at the apartment, Davis said, “I don’t know if I need a lawyer or not.” The investigator replied that if he needed one, that was his decision, but the investigator wanted to continue talking to him. Davis replied, “okay,” and questioning continued. Davis’ equivocal statement did not require officers to stop questioning him. Jordan v. State, 267 Ga. 442, 444 (1) (480 SE2d 18) (1997). Again, during the noon interview, Davis said, “I’d feel a lot safer if I could afford an attorney, but I know that’s kinda like out of the question, so. . . .” The investigator then asked if Davis wanted an attorney. Davis replied, “Well, I can’t afford one, and a public defender is, they’re so overworked all they want to do is make a deal with the state. . . .” After complaining that public defenders were ineffective and that the judicial system was skewed in favor of those with money, Davis continued answering the investigator’s questions. These equivocal statements did not require the investigator to stop his interrogation. Id.

(c) Finally, Davis claims his statements were obtained through an improper promise of a lighter sentence or more lenient treatment. During the third interview, the investigator did tell Davis that he would inform the district attorney that Davis confessed and cooperated, but such a statement does not constitute the “hope of benefit” rendering a confession inadmissible. McKenzie v. State, 187 Ga. App. at 844.

3. Davis contends that insufficient evidence supports his convictions for trafficking in methamphetamine and possession of crack cocaine. He bases his assertion on statements he made to officers that he was “ripped off” when he purchased the methamphetamine and that he bought the crack intending to buy heroin and did not believe it to be crack because the substance dissolved in water, and “crack is not water soluble.” Of course, during that same conversation Davis told the investigator that he had “been trying to find some decent [methamphetamine] for months . . . ’cause I knew a bunch of people who wanted it.” Considering the overwhelming evidence showing Davis’ intimate familiarity with all kinds of illicit drugs, including crack cocaine and methamphetamine, this enumeration borders on the absurd. See generally Haire v. State, 133 Ga. App. 12, 13 (209 SE2d 681) (1974) (jury may infer defendant’s knowledge of contraband from circumstances).

4. In his final enumeration, Davis correctly contends that the court exceeded its statutory authority when it assessed against him a $300,000 fine for trafficking in 87.5 grams of methamphetamine. We agree and must vacate that portion of the sentence. OCGA § 16-13-31 (e) (1) specifically provides that one found guilty of trafficking in less than 200 grams of methamphetamine “shall be sentenced to a mandatory minimum term of imprisonment of ten years and shall pay a fine of $200,000.” While the mandatory imprisonment term is described as a minimum, the amount of the fine is specifically directed in plain language. Although no cases have addressed this particular issue, in Recoba v. State, 179 Ga. App. 31, 34-35 (4) (345 SE2d 81) (1986), this Court recognized that a similar provision in the same statute would result in a mandatory minimum prison term and a specified mandatory fine. Nothing in Boatwright v. State, 193 Ga. App. 141, 143 (4) (387 SE2d 386) (1989), or Conrad v. State, 217 Ga. App. 388, 390-391 (3) (457 SE2d 592) (1995), is contrary to this holding. As the fine is mandatory, we vacate that portion of the sentence and remand the matter for resentencing.

Decided March 31, 1998

Reconsideration denied May 5, 1998.

Hemmann & Hemmann, Paul E. Hemmann, for appellant.

Tommy K. Floyd, District Attorney, Mark S. Daniel, Marie R. Banks, Assistant District Attorneys, for appellee.

Judgment of conviction affirmed, sentence vacated in part and case remanded for resentencing.

Beasley and Ruffin, JJ, concur.

       The original appellate record in this case contained no written motion to suppress enumerating these grounds. This Court undertook review of the matter only when a telephone conference with the trial court clerk revealed that this motion to suppress was filed in a case bearing a different indictment number. Parties are cautioned to ensure that the record contains the documents and evidence necessary for appellate review. Compare Turner v. State, 178 Ga. App. 888 (1) (a) (345 SE2d 99) (1986) (where no written motion to suppress was filed, court would not review enumeration raising denial of that motion).

       Davis was charged with possession of marijuana in a different indictment, and that case was apparently nolle prossed.


author: Popé, Presiding Judge.

text:
    A98A0490.
    MANUES v. THE STATE.
    (501 SE2d 826)
   Popé, Presiding Judge.

Along with several co-defendants, Thomas Manues was charged with conspiring to possess methcathinone with intent to distribute; conspiring to traffick in methamphetamine; conspiring to possess methamphetamine with intent to distribute; theft by receiving a stolen firearm; possession of methcathinone; giving a false name; driving without a license; possession of a firearm by a convicted felon; and being a recidivist. In exchange for the State’s agreement to drop the recidivist count and the charges of conspiracy to traffick in methamphetamine and to possess methamphetamine with intent to distribute, Manues pled guilty to the remaining charges. The court sentenced Manues to a total of 20 years in prison and a $10,000 fine but agreed to consider reducing that sentence following a post-sentence investigation. Before the hearing on the post-sentence investigation, Manues moved to withdraw his guilty plea. The trial court denied the motion, and we affirm its judgment.

First, we note that Manues did not move to withdraw his plea until after the trial court pronounced his sentence. Therefore, he had no right to withdraw the plea pursuant to OCGA § 17-7-93 (b) even though he tried to do so before the court addressed his request to reduce the sentence. See Giddeons v. State, 156 Ga. App. 800, 801 (275 SE2d 370) (1980). Therefore, we must determine whether the trial court properly found that the State met its burden of showing, by the record, that Manues entered his plea freely and voluntarily with an understanding of the nature of the charges against him and an understanding of the consequences of his plea. King v. State, 226 Ga. App. 576, 579-580 (1) (486 SE2d 904) (1997). The trial court’s decision will be upheld absent an abuse of discretion. Moore v. State, 225 Ga. App. 860, 861 (1) (485 SE2d 552) (1997).

The record establishes that the trial court complied with Uniform Superior Court Rules 33.8, 33.9, and 33.11 when it accepted the plea. Manues filled out a “Petition to Enter Plea of Guilty,” attached as an appendix to this opinion, in which he swore that he was 44 years old and had an eleventh grade education, could read and write, was not under the influence of any drugs or alcohol, had reviewed his indictment, discussed the case with his attorney, was satisfied with his attorney, understood each of his enumerated constitutional rights, understood the maximum sentence, and understood that he was entering a negotiated plea but that the court could reject that plea agreement. He stated that he was in fact a party to the crimes of possession with intent to distribute unlawful drugs, theft by receiving a firearm, and possessing a firearm after having been convicted of a felony. He also admitted driving a vehicle without a license and having another person’s driver’s license. He averred that he desired to plead guilty, and that he did so freely and voluntarily. On this same form, his attorney verified that she had explained to Manues each of his rights and knew of no reason the court should not accept the guilty plea. Finally, the court determined on this form that the plea was freely and voluntarily made. At the plea hearing, the prosecutor explained the charges and the plea agreement. Manues signed his petition to enter the guilty plea in open court, and the trial judge went over the document with him. Again, on the record, the court made the determination that the plea was properly entered. The record supports the trial court’s finding that Manues entered the plea knowingly and voluntarily. See Moore, 225 Ga. App. at 861-862.

At the hearing on his motion to withdraw the plea, Manues changed his prior sworn statement and testified that he did not commit any crimes, that he was very tired when he entered the plea, and that he did so only because he hoped to get a lesser sentence. These contentions do not require a different result. First, the hope of a lesser sentence is not the type of coercion that prevents the voluntary entry of a guilty plea. See Moore, 225 Ga. App. at 862. Second, given Manues’ first sworn statements at the plea hearing, his later contradictory testimony presented a question of credibility which the trial judge was entitled to resolve against him. See Neal v. State, 216 Ga. App. 223, 224 (453 SE2d 807) (1995); Galbreath v. State, 130 Ga. App. 179, 180 (202 SE2d 562) (1973).

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

Decided April 7, 1998

Reconsideration denied May 5, 1998

David M. Rosenberg, for appellant.

Roger Queen, District Attorney, for appellee.


author: Birdsong, Presiding Judge.

text:
    A96A0896.
    BOYETT v. WEBSTER.
    (501 SE2d 622)
    Decided May 5, 1998.

      William J. Mason, for appellant.

      Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, Self, Mullins, Robinson, Marchetti & Kamensky, Richard A. Marchetti, for appellee.

      Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder, Jr., amicus curiae.
   Birdsong, Presiding Judge.

In Webster v. Boyett, 269 Ga. 191 (496 SE2d 459), the Supreme Court reversed the judgment of this Court in Boyett v. Webster, 224 Ga. App. 843 (482 SE2d 377). Therefore, our judgment in this appeal is vacated and the judgment of the Supreme Court is made the judgment of this Court. Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

Beasley and Blackburn, JJ, concur.


author: Beasley, Judge.

text:
    A98A0252.
    SMITH v. THE STATE.
    (502 SE2d 561)
   Beasley, Judge.

Smith was convicted of armed robbery (OCGA § 16-8-41), hijacking a motor vehicle (OCGA § 16-5-44.1), robbery (OCGA § 16-8-40), and aggravated assault (OCGA § 16-5-21). His motion for new trial was denied.

1. Smith, a black person, exercised nine peremptory strikes against white prospective jurors. The State challenged this under Batson v. Kentucky and Georgia v. McCollum, In his first seven enumerations, Smith contends the court erred in ruling that his explanations for striking jurors four, five, eight, and eleven were not race neutral. Smith complains that the court erroneously merged the second and third steps of Batson, thereby placing the burden on him to prove that the reasons for striking the jurors were not racially discriminatory.

“In McCollum, the United States Supreme Court extended its decision in Batson v. Kentucky and held that the equal protection clause prohibits a criminal defendant from engaging in purposeful discrimination on the basis of race in the exercise of peremptory challenges. To evaluate claims that the state or defendant used peremptory challenges in a racially discriminatory manner, the trial court must engage in a three-step process. The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent.”

After the trial court determined that a prima facie case of discrimination had been established, defense counsel gave among his reasons for striking juror four that he wore a hearing aid and had served on a criminal jury several years earlier. The prosecutor responded that there were numerous venire persons who had been criminal jurors and that juror four seemed capable of hearing. The court rejected defendant’s reasons.

Defense counsel explained that juror five was struck primarily because he had several friends or acquaintances who had been murder victims. When the court asked whether this was a murder trial, defense counsel responded, “No, but I believe knowing a victim gives you a strong view of law and order.” The trial court rejected this reason also.

Juror eight was struck, defense counsel said, because she spent a great deal of time at home with her children and grandchildren and did not work, and he was concerned she would be very law-and-order oriented. The prosecutor questioned this logic and observed that the juror had been in the workforce earlier. The court again ruled the reason not race neutral.

The explanation given for striking juror 11 was that she was very protective of home and children because she had been a first grade teacher for approximately 20 years and had children of her own. When the prosecutor countered that a similarly-situated black female was allowed to remain on the jury, the court found defendant’s strike impermissible.

“In articulating a race-neutral explanation for striking a juror, the proponent of the strike is not required to enunciate a plausible or persuasive explanation, just one that is clear, reasonably specific and that does not deny equal protection. [Cit.] ‘At th[e] second step of the [Batson] inquiry, the issue is the facial validity of the (attorney’s) explanation. Unless a discriminatory intent is inherent in the (attorney’s) explanation, the reason offered will be deemed race neutral. [Cits.]’ [Cit.]” “Whether the explanations should be believed and accepted as non-discriminatory is a different question from whether the explanations are race-neutral.”

Even where, as in Malone, “it is fairly easy to understand why the trial court found some of the reasons given for the peremptory strikes to be unpersuasive,” the law protects the strikes. As in Malone, “the explanations given were facially valid and evidenced no discriminatory intent, i.e., were race-neutral. None . . . was based on a characteristic or stereotype peculiar to any race. [Cit.]”

The trial court veered off course when it based its findings that the strikes were not race neutral on factors to be considered during step three of Batson. “It is then for the trial court to determine, after considering the totality of the circumstances, whether the opponent of the strike has shown that the proponent of the strike was motivated by discriminatory intent in the exercise of the peremptory challenge. [Cits.]” “The ‘ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.’ ”

Where, as here, the court combines steps two and three of Bat-son, it “prematurely evaluates the persuasiveness of [counsel’s] explanation^], thereby impermissibly placing the ultimate burden of persuasion upon the proponent of the strike. [Cit.]” Jackson v. State; see Malone v. State, supra; Gilbert v. State; Pickett v. State. These authorities compel the conclusion that the reseating of the jurors in question resulted in an illegally constituted jury. Smith is entitled to a new trial.

Decided May 5, 1998.

Steven E. Phillips, Megan C. DeVorsey, for appellant.

Paul L. Howard, Jr., District Attorney, Juliette O. W. Scales, Leigh A. Dupre, Assistant District Attorneys, for appellee.

2. The eighth enumeration of error is moot.

Judgment reversed.

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

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

       505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992).

       (Footnotes omitted.) Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996).

       (Emphasis in original.) Malone v. State, 225 Ga. App. 315, 316-317 (1) (484 SE2d 6) (1997).

       Id. at 318.

       Id. at 317.

       Id.

       See Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996).

       Id.

        Chandler, supra at 510.

       265 Ga. 897, 899 (2) (463 SE2d 699) (1995).

       226 Ga. App. 230 (486 SE2d 48) (1997).

       226 Ga. App. 743 (487 SE2d 653) (1997).


text:
    A98A0498.
    COOPER v. THE STATE.
    (502 SE2d 306)
   Ruffin, Judge.

A jury found Eric Cooper guilty of rape. Cooper appeals, challenging the sufficiency of the evidence and the trial court’s order finding he was not denied effective assistance of trial counsel. For reasons which follow, we affirm.

1. “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and [Cooper] no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citations and punctuation omitted.) Hash v. State, 226 Ga. App. 643 (487 SE2d 452) (1997).

Viewed under this standard, the evidence presented at trial shows that the victim and Cooper were casual acquaintances, having been recently introduced by a man named Lamont Duncan. During the early morning hours of September 10, 1995, Cooper, Duncan, the victim, her friend Tameka Smith, and a third man identified only as Felix, went to Cooper’s house to watch a movie on television. When they arrived at Cooper’s house, Felix stayed in the living room and the other four individuals went into Cooper’s bedroom to watch television. Cooper, Duncan and Smith took off their shoes and laid on the bed while the victim sat in a chair. Duncan and Smith soon fell asleep, and shortly thereafter Cooper asked the victim to join them on the bed. The victim testified that although she first resisted, Cooper insisted, stating “you get on the bed, ain’t nobody going to bite you.” The victim relented and got onto the bed.

The victim stated that after she joined Cooper on the bed, he started “feeling all on me on my private and all that and got all on top of me and kissing me and stuff.” The victim told Cooper to stop and struggled to free herself, but Cooper continued his assault. During the struggle, Cooper pulled the victim’s shorts aside, unzipped his pants and put his penis in her vagina. The victim screamed, and Smith awoke. Cooper got off the victim and turned the lights on. Duncan soon woke up, and the victim demanded that he take her home. When the victim got off the bed, she and Duncan both saw blood where she had been lying. The victim and Duncan both testified that after the incident Cooper started laughing.

Duncan, joined by Smith, Felix, and Cooper, took the victim home. When they arrived at the victim’s house, the victim and Smith stepped out of the car, and when the victim looked back, she saw blood where she was seated. After Smith and the victim left the car, Duncan asked the other passengers about the blood on the seat. According to Duncan, Cooper, again laughing, responded that the victim was “fucked up.”

When the victim and Smith entered the house, the victim’s mother noticed blood on her clothing. The mother testified that “[s]he was bloody from her waist down, and she had like a hysterical look on her face.” According to the mother, the victim walked straight to the bathroom, and a short time later told her she had been raped.

After reporting the incident to the police, the victim went to the hospital. The physician who treated the victim at the hospital had recently performed surgery on the victim for complications resulting from Crohn’s disease. Due to the surgery, the victim had sutures inside her vagina. When the victim told the physician she had been raped, he examined her vagina. The physician testified that the sutures were “completely torn apart” and that the injury was consistent with forcible sexual intercourse. In fact, the physician stated that he could not think of anything other than forcible penetration that could have caused the sutures to tear.

Following the State’s presentation of evidence, Cooper testified in his own defense. During his testimony, Cooper denied raping the victim, stated that he did not even know the victim and claimed he was at home with either his wife or his girlfriend and his daughter during the time the offense took place.

Despite Cooper’s unequivocal denial that he committed the rape, the jury was authorized to find him guilty. It is well settled “ ‘that it is the prerogative of the jury to accept the defendant’s statement as a whole, or to reject it as a whole, to believe it in part, or disbelieve it in part. In the exercise of this discretion they are unlimited.’ [Cit.]” Eason v. State, 215 Ga. App. 614, 617 (8) (451 SE2d 820) (1994). The jury in this case obviously chose to disbelieve Cooper’s testimony and convict him based on the victim’s corroborated recollection of the offense.

2. Cooper also asserts that the trial court erred in denying his motion for new trial because the record showed he was denied effective assistance of trial counsel. We disagree.

“ ‘The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ Strickland v. Washington, 466 U. S. 668, 686 (104 SC 2052, 80 LE2d 674) (1984). First, [Cooper] must prove that trial counsel’s performance was deficient. Second, he must show that but for trial counsel’s deficiencies, there is a reasonable probability that the results of the trial would have been different.” Jones v. State, 263 Ga. 835, 837 (2) (439 SE2d 645) (1994). “A trial court’s determination that a defendant was not denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. [Cit.]” Jones v. State, 230 Ga. App. 65, 66 (495 SE2d 327) (1997).

(a) Cooper asserts that counsel was ineffective because he failed to interview key witnesses during his trial preparation. Specifically, the transcript shows that two witnesses, Tameka Smith and the man named Felix did not testify and that trial counsel did not interview them prior to trial. However, trial counsel testified that he attempted to locate both witnesses but was unsuccessful. Although Cooper suspects that counsel did not attempt to locate the witnesses, counsel’s credibility was a matter for the trial court’s discretion. See Randolph v. State, 225 Ga. App. 324 (484 SE2d 1) (1997). In light of counsel’s testimony, the trial court’s finding on this ground is not clearly erroneous. See id.; Jones, supra.

(b) Similarly without merit is Cooper’s claim that counsel was ineffective because he failed to meet with Cooper for any significant period of time during trial preparation. Although Cooper testified that trial counsel only met with him twice before trial and never discussed the merits of his case, counsel stated that he visited Cooper on five occasions at the jail to discuss the case and that they had ten or fifteen three-way calls with Cooper’s mother to discuss the matter. Accordingly, the trial court’s finding on this ground is not clearly erroneous. See id.

(c) Cooper asserts that counsel was ineffective for failing to conduct a pretrial conference with the district attorney and the trial judge. Cooper argues that such a conference might have yielded a plea bargain but that option was never presented to him. Again, counsel’s testimony belies Cooper’s assertion. Although counsel did not engage in a formal pretrial hearing, he testified that he had numerous conversations with the three prosecutors representing the State concerning possible plea bargains. During these negotiations, the State offered various plea agreements, all of which would have required Cooper to serve a minimum of five years. However, when counsel discussed these offers with Cooper, Cooper insisted that he would not assent to any agreement which required him to serve time. Accordingly, the trial court’s finding on this ground is not clearly erroneous. See id.

(d) Cooper asserts that trial counsel was ineffective because he “failed to follow up or investigate [Cooper’s] psychological status.” Cooper argues that his psychological status prevented him from communicating effectively with counsel and that this problem could have been avoided if counsel had a better understanding of his psychological condition. Although the record supports Cooper’s assertion that he sometimes had difficulty understanding his attorney, Cooper has not shown that counsel’s performance was deficient due to his failure to obtain an evaluation or that he was harmed by counsel’s performance.

The record shows during a 1994 criminal prosecution, Cooper was evaluated and diagnosed with “borderline intellectual functioning and depression,” but was found competent to stand trial. At the new trial hearing in this case, counsel stated that he was fully aware of the 1994 evaluation. Counsel further stated that he discussed Cooper’s condition with his mother, who confirmed that “he had trouble in school and he just didn’t catch on quite [sic].” Based on the previous evaluation, his mother’s assessment and counsel’s own observations, counsel felt that he understood Cooper’s condition and that he often had Cooper repeat what was told to him to ensure that Cooper had grasped what was said.

It does not appear from the record, and Cooper has not shown, that another psychological evaluation would have provided counsel with any new insight into Cooper’s condition. Rather, the evidence before the trial court showed that counsel investigated and comprehended the nature and extent of Cooper’s difficulty and took action to compensate for the problem. Accordingly, the trial court’s finding that counsel was not deficient for failing to order another evaluation was not clearly erroneous. Cf. Curry v. Zant, 258 Ga. 527 (371 SE2d 647) (1988) (counsel ineffective for failing to obtain independent psychological evaluation where abundant evidence showed defendant was seriously mentally ill and his competence and sanity were the only issues at trial).

Decided May 5, 1998.

Carla J. Friend, for appellant.

(e) Finally, we find no merit in Cooper’s claim that he was denied effective assistance because counsel did not prepare him to testify and failed to inform him that he was not required to testify. Specifically, Cooper stated at the new trial hearing that although he did not want to testify at trial, when the time came, counsel merely told him to get up on the witness stand.

The evidence of record refutes Cooper’s assertions. As stated in Division 2 (b), the record shows that counsel spent considerable time discussing Cooper’s defense with him. Furthermore, at the new trial hearing, counsel stated that he prepared Cooper for trial by advising him on what kind of clothes to wear, his demeanor at trial, the manner in which he should answer questions and what questions the prosecutor would likely ask. Finally, counsel stated that he and Cooper discussed the issue of whether Cooper should testify on several occasions prior to trial and that he told Cooper he “didn’t think it was in his best interest to testify.”

The trial transcript also belies Cooper’s assertion that he was unaware of his right not to testify. The transcript shows that prior to Cooper testifying, the trial judge fully informed him of his right not to testify. After informing Cooper of this right, the trial judge asked him if he understood the right and if he had discussed the matter with his attorney. Cooper answered “yes” to both questions. The trial judge then asked Cooper if he needed to further discuss the matter with his attorney, and Cooper responded “no.” Following this inquiry, Cooper unequivocally stated that he wanted to testify.

Although Cooper argues that his learning disabilities prevented him from fully understanding his right not to testify, the foregoing evidence contradicts this assertion. Furthermore, other evidence showed that Cooper had six prior convictions, all based on guilty pleas. Cooper acknowledged that prior to each plea, the trial judge informed him he had a right to a trial during which he could choose to testify or remain silent.

Under these circumstances, there was ample evidence showing counsel informed Cooper of his right not to testify, that Cooper understood the right and that counsel adequately prepared Cooper to testify. The trial court’s finding on this ground was not clearly erroneous. See Mobley v. State, 264 Ga. 854, 856-857 (2) (452 SE2d 500) (1995); Rowland v. State, 228 Ga. App. 66 (3) (c) (491 SE2d 119) (1997).

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

J. Tom Morgan, District Attorney, Robert M. Coker, Elisabeth G. Macnamara, Assistant District Attorneys, for appellee.

       It is unclear from Cooper’s testimony whether he was with his wife or girlfriend. In response to one question, Cooper stated that he was home with his girlfriend. However, in response to another question, Cooper acknowledged that he stayed home with his wife.


author: Judge Marvin W. Sorrells.

text:
    A98A0637.
    In the Interest of D. M. C., a child.
    (501 SE2d 305)
   Judge Marvin W. Sorrells.

1. Background of the case.

In November 1995, the Juvenile Court of Cobb County terminated defendant/appellant’s parental rights to his minor son principally because appellant had pled guilty in 1995 to murdering his wife, the boy’s natural mother, in 1993. Appellant filed a motion for new trial in the termination in December 1995 and ordered a transcript, which was completed and certified in July 1996. The motion for new trial was denied on October 2, 1996.

Defendant’s next step was to file a notice of appeal on October 25, 1996. However, the juvenile court clerk’s office prepared the record but held it in her office awaiting a copy of the transcript. On July 31, 1997, appellant, prompted by plaintiffs’ motion to dismiss the notice of appeal, finally produced a copy of the transcript and sent it to the clerk. The juvenile court dismissed the appeal in September 1997. In so doing, the trial court found that the appellant caused unreasonable and inexcusable delay in processing the appeal. It specially noted that appellant’s counsel had possessed a copy of the transcript since at least September 1996 when a brief was submitted containing page references to the transcript. The trial court also noted that defendant had never moved for an extension of time to file the transcript pursuant to OCGA § 5-6-39.

Now, appellant argues based on three grounds that dismissal of his appeal was error and should be reversed by this Court. He claims that the dismissal removed his constitutional right to have the termination of his parental rights reviewed on the merits. Additionally, he claims that the untimely filing was not due to his conduct and that the delay was neither unreasonable nor inexcusable.

2. Findings of Law and Fact.

(a) Appellant does not have a constitutional right to have his appeal heard on the merits.

Appellant claims that he has a fundamental due process right to have a decision on the merits rather than have his appeal dismissed on procedural grounds. Georgia laws governing appellate practice gave appellant the opportunity to bring a direct appeal pursuant to OCGA § 5-6-34. Cases involving the termination of parental rights must be pursued by direct appeal. In re S. N. S., 182 Ga. App. 803 (357 SE2d 127) (1987). However, appellant fails to realize that “[t]he right of appeal is not absolute, but is one based upon the conditions imposed by the General Assembly for bringing cases to the appellate courts. The Constitution . . . vests in the General Assembly the power to prescribe conditions as to the right of a party litigant to have his case reviewed by the Supreme Court or Court of Appeals.” (Punctuation omitted.) State v. Hollomon, 132 Ga. App. 304, 306 (208 SE2d 167) (1974); citing Fife v. Johnston, 225 Ga. 447 (169 SE2d 167) (1969).

Appellant attempts to confuse the issue and bolster his claim to appellate review on the merits by arguing that his parental rights are fundamental rights and that the dismissal of his notice of appeal has deprived him of those constitutionally guaranteed rights. Even assuming that parents have a fundamental right to continue parenting, the fact remains that litigants seeking to protect such rights are still required to observe rules of court and pleading requirements. As to appellant’s concerns for due process, the court observes that due process for all parties can only be harmed by allowing appellant to proceed despite his blatant disregard for Georgia’s appellate procedures.

(b) Findings of Law Regarding Appellate Procedure and the Requirement that Appellants Timely File Transcripts.

Numerous conditions on appellate practice concern filing a transcript of the trial court proceedings. OCGA § 5-6-37 requires that the notice of appeal shall state “whether or not any transcript of evidence and proceedings is to be transmitted as a part of the record on appeal.” OCGA § 5-6-41 tells litigants how to obtain a transcript of their trial, and to send a copy to the appellate court or prepare statements of recollections concerning the record in lieu of a transcript.

Other statutes contemplate cases in which a transcript is not timely filed. OCGA § 5-6-42 places the burden of timely filing the transcript or obtaining an extension upon the appellant. Under OCGA § 5-6-39, an appellant may request an extension of time for filing the transcript. However, OCGA § 5-6-48 (c) delegates authority to the trial courts to “order that [an] appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party.”

Case law has interpreted the various statutory conditions on appellate practice. The trial court is required to examine the situation closely to ensure that an appeal goes forward unless the appellant has caused a delay which harms the other party. This examination protects the appellant who has proceeded with all due caution and regard for his opponent. However, if the trial court finds that the delay was: (1) unreasonable; (2) inexcusable; and (3) caused by appellant, it can dismiss the notice of appeal. Baker v. Southern R. Co., 260 Ga. 115 (390 SE2d 576) (1990); Dalton v. Vo, 224 Ga. App. 382 (480 SE2d 377) (1997) (appealed again after remand but on different grounds). “[T]he cause of delay in the processing of an appeal is a fact issue for trial court determination and, in making that determination, the trial court exercises a broad legal discretion subject to appellate review only for abuse.” Jackson v. Beech Aircraft Corp., 213 Ga. App. 172, 173 (444 SE2d 359) (1994).

In conducting the three-prong analysis, trial courts commonly look at factors such as length of the delay and whether or not an appellant requested an extension of time for filing the transcript. In Hall v. Bussey, 200 Ga. App. 311 (408 SE2d 430) (1991), this Court upheld a dismissal where the appellant caused a five-month delay in filing and failed to request an extension. A four-month delay was found unreasonable and inexcusable in Dept. of Human Resources v. Patillo, 196 Ga. App. 778 (397 SE2d 47) (1990). The mere fact of a delay or “[t]he failure to apply for an extension does not automatically convert the delay into one which fits all of the conditions necessary to vest the trial court with the discretion to dismiss the appeal. The court must find all these conditions before an exercise of discretion is authorized.” Baker v. Southern R. Co., supra at 116. “The statutory duty to file timely a transcript does not rest with the court reporter; rather the duty to order the transcript ... is vested upon the appropriate appealing party. ... It would create an unacceptable and impractical burden on the court reporter’s office to require them to contact attorneys or parties and report on the status of all ordered transcripts or to contact attorneys requiring whether a transcript was being ordered.” Jackson v. Beech Aircraft, 217 Ga. App. 498, 502 (458 SE2d 377) (1995).

As further protection for the appellant, trial courts must make separate determinations of unreasonableness and inexcusableness in each case. “The threshold question of whether a delay in filing a transcript is unreasonable is a separate matter from the issue of whether such a delay is inexcusable.” (Punctuation omitted.) Cook v. McNamee, 223 Ga. App. 460, 461 (477 SE2d 884) (1996). Jackson v. Beech Aircraft, 213 Ga. App. at 173, defines an unreasonable delay as one which “may affect an appeal by: (a) directly prejudicing the position of a party by allowing an intermediate change of conditions or otherwise resulting in inequity; or (b) causing the appeal to be stale.” Inexcusableness is determined in each case. In Van Diviere v. Delta Airlines, 204 Ga. App. 573, 574 (420 SE2d 27) (1992), the appellant’s failure to order additional portions of the transcript constituted inexcusable behavior.

(c) Findings of Fact in the Present Case.

In the present case, nine months slipped away between the notice of appeal and plaintiffs’ motion for dismissal on July 29, 1997 which finally prompted the transcript’s delivery. The evidence reveals that appellant had access to a copy of the transcript as early as September 1996 when he amended his motion for new trial. Indeed, this amended motion contained references to pages in the transcript. Sworn testimony, uncontroverted by appellant, indicates that the clerk called the appellant’s counsel several months before July 1997 to inform that the missing transcript was the only reason the case could not be transmitted to the Court of Appeals. After a second phone call on July 23, the transcript was filed on July 31, 1997. During the nine-month period, appellant never filed a motion pursuant to OCGA § 5-6-39 to extend the time for filing of the transcript.

Decided May 5, 1998.

Ann-Charlotte Dowless, Eric N. Welch, for appellant.

Jane C. Barwick, Linda J. Spievack, for appellee.

Appellant claims that custom kept him from ensuring that a transcript had been mailed to the clerk by the court reporter and that he thought the court reporter was ill and might be slower than usual in preparing the transcript. He relies on OCGA § 5-6-41 (e) as authority for the proposition that the court reporter has the responsibility to give a transcript copy to the court. He claims that counsel provided a copy of the transcript within seven days of the clerk’s call.

However, counsel for the appellant has never explained why in a nine-month period, in which he received a phone call telling him the appeal was delayed for lack of a transcript and in which he received no communications from this Court telling him that his appeal had been docketed, he never took even one affirmative step to see that the appeal was being properly managed by his office. If he thought illness might delay the transcript preparation, he should have contacted the court to request an extension of time for filing. He also should have called the court and the clerk on a regular basis to see if the extension should be renewed.

As a result of appellant’s counsel’s inaction, this appeal has been delayed for one year and three months. The trial court correctly found that the delay was unreasonable, inexcusable, and the fault of the appellant.

Judgment affirmed.

Presiding Judge Robert J. James and Judge T. Penn McWhorter concur. All Court of Appeals judges are disqualified.