author: Ruefin, Judge.

text:
    A00A2421.
    SMITH v. THE STATE.
    (545 SE2d 89)
   Ruefin, Judge.

Robert Smith was convicted in 1988 of two counts of armed robbery and one count of carrying a concealed weapon. On February 8, 2000, he was granted an out-of-time appeal. He then filed a motion for new trial, which was denied on June 5, 2000. On appeal to this Court, he challenges the sufficiency of the evidence supporting the armed robbery convictions, contends the trial court erroneously restricted his cross-examination of a prosecution witness, and claims that the court erred in sentencing him on the concealed weapon charge. For reasons discussed below, we affirm Smith’s convictions but vacate his sentence as to the concealed weapon charge.

1. On November 21, 1987, Mattie Johnson and Willie Byrd were working at the Pack & Sack Company in Cordele when Smith came into the store and asked to talk to Johnson. Johnson, who had known Smith for several years, told him that she was busy and could not talk. Smith lingered in the store for a while and then left. He came back later and left again. He came back a third time and asked Johnson to give him $20. Johnson told Smith she did not have $20, and did not owe him $20, at which point Smith pulled a gun out of his jacket. Johnson then told Byrd, another employee, to “give [Smith] whatever he wants.” Byrd put a $20 bill on the counter. Smith then fired several shots, striking both Johnson and Byrd. Smith then beat Johnson with the gun before leaving the store.

Smith testified at trial and admitted shooting Johnson and Byrd, but claimed that he did not pull his gun out until after he had been given the $20. He claimed that Johnson owed him the money, and that he demanded to be repaid because she was “[e]mbarrassing me in front of other people.” After Byrd handed him the money, Smith pulled out his gun and shot Johnson to “show her that I don’t feel well over it. I was real upset at the time.” Because he claims not to have produced the gun until after he took the money, and to have shot Johnson and Byrd for purely personal reasons, Smith argues that the evidence was insufficient to support his convictions for armed robbery, which requires that one take property from the presence of another by use of an offensive weapon. This argument is, of course, baseless, since the jury was not required to believe Smith’s version of events as against Johnson and Byrd’s version.

2. After the State rested, Smith’s attorney recalled Johnson for purposes of cross-examination, and asked if she was “currently involved in a case with the Board of Workman’s Compensation.” When the State objected on relevancy grounds, defense counsel responded that the evidence was relevant because “the insurance company involved in that case is denying her claims, and the only way that she can benefit under that claim is if Mr. Smith is found guilty in this case.” In response to a question from the court, however, counsel admitted that he did not know why Johnson’s claim had been denied, if in fact it had been denied. The court sustained the State’s objection, and Smith then ended his cross-examination, without requesting the opportunity to question Johnson outside the presence of the jury or to make an offer of proof regarding the alleged workers’ compensation claim. Smith now challenges the trial court’s ruling on appeal.

“The admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” Although Smith asserts on appeal that Johnson “may have had a motive or reason to testify as she did based upon a hope of benefit or monetary reward,” he makes absolutely no argument as to how her alleged workers’ compensation claim provided her with such a motive. Indeed, he does not even assert that such motive existed, but simply states that his trial attorney “believed” Johnson “may have had” such a motive.

Although never mentioned by Smith — either at trial, in the motion for new trial hearing, or in his appellate brief — we note that the workers’ compensation statute excludes from coverage any “injury caused by the willful act of a third person directed against an employee for reasons personal to such employee.” Thus, if Johnson had in fact asserted a workers’ compensation claim, and if such claim had in fact been denied under this “personal reasons” exception, then Johnson may indeed have had some reason to characterize the incident as an armed robbery rather than a shooting for personal reasons. However, Smith never articulated this reasoning to the trial court, and thus never gave the court the opportunity to adequately consider whether the line of questioning would have been admissible to show bias in this regard.

Even if this line of questioning would have been proper to explore for bias, Smith has wholly failed to show any harm from the sustaining of the State’s objection. As discussed above, Smith did not make an offer of proof or seek to question Johnson outside the presence of the jury in order to perfect the record. Moreover, Smith did not seek to present such evidence in connection with his motion for new trial. Thus, we have no way of knowing whether Johnson actually made a workers’ compensation claim or whether such claim was actually denied. In the absence of such evidence, we cannot say that the trial court’s ruling constituted reversible error.

Decided January 24, 2001.

John W. Sherrer, Jr., for appellant.

Patrick J. McDonough, District Attorney, Richard E. Thomas, Assistant District Attorney, for appellee.

3. Smith contends that the trial court erred in sentencing him to five years for carrying a concealed weapon, noting that a person’s first conviction for such offense is a misdemeanor. Although any subsequent conviction constitutes a felony, Smith points out that there was no evidence that he had previously been convicted of carrying a concealed weapon. The State concedes this point in its brief. Accordingly, the sentence imposed for the concealed weapon conviction is hereby vacated and this case remanded to the trial court for resentencing on that conviction.

Judgment affirmed in part and vacated in part and case remanded.

Andrews, P. J., and Ellington, J., concur.

       See OCGA § 16-8-41 (a).

        See Armstrong v. State, 244 Ga. App. 871, 872 (1) (537 SE2d 147) (2000).

       (Punctuation omitted.) Rary v. State, 228 Ga. App. 414, 415 (2) (491 SE2d 861) (1997).

       OCGA § 34-9-1 (4). See also Johnson v. Holiday Food Stores, 238 Ga. App. 822, 824-825 (1) (520 SE2d 502) (1999).

       See generally Boatman v. State, 272 Ga. 139, 142 (5) (527 SE2d 560). (2000) (defendant barred from arguing on appeal that evidence was admissible to impeach witness for bias, where issue not raised below).

       Although Smith’s attorney did initially assert that “the only way that [Johnson] can benefit under that claim is if Mr. Smith is found guilty in this case,” he effectively withdrew that representation by admitting that he did not know why Johnson’s claim had been denied, if in fact it had been denied.

       See Miller v. State, 166 Ga. App. 639, 641-642 (3) (305 SE2d 172) (1983). See also Pittman v. State, 208 Ga. App. 211, 218 (6) (430 SE2d 141) (1993).

       See OCGA § 16-11-126 (b) (1). See also Favors v. State, 182 Ga. App. 179 (1) (355 SE2d 109) (1987).

       See OCGA § 16-11-126 (b) (2).

       See Wilson v. State, 244 Ga. App. 224, 226-227 (2) (534 SE2d 910) (2000).


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A00A2462.
    US PROFESSIONALS, LLC v. DIRECTLINK INDIA (P) LIMITED et al.
    (545 SE2d 95)
   Barnes, Judge.

Directlink India (P) Limited (“Directlink”) sued US Professionals, LLC (“US Professionals”) for money owed on a commercial contract account. US Professionals filed a timely answer that raised the defense of improper venue and simultaneously moved to dismiss the complaint based upon improper venue. After these pleadings were filed, the trial court approved the withdrawal request of US Professionals’ counsel. Before withdrawing, US Professionals’ counsel provided the trial court with an address and telephone number for US Professionals in Memphis, Tennessee.

Decided January 24, 2001.

Olim & Loeb, Jay E. Loeb, for appellant.

Subsequently, the trial court notified US Professionals by mail that the case was set for a nonjury trial on June 8, 2000. When US Professionals failed to appear for trial, the trial court entered a judgment against it in the amount of $66,579.31 and dismissed its counterclaim. The trial court’s written order and judgment makes no mention of any ruling on US Professionals’ motion to dismiss based upon improper venue. US Professionals appeals, asserting the trial court erred by entering a judgment against it without first ruling on the motion to dismiss and that it also erred in its calculation and award of damages to Directlink.

1. Because the record does not show that the trial court ruled on or otherwise disposed of US Professionals’ timely motion to dismiss for improper venue, and it would be error for the trial court to enter a judgment against US Professionals without having done so, we must vacate the trial court’s order and judgment and remand this case to the trial court for proceedings not inconsistent with this opinion. See Morgan v. Berry, 152 Ga. App. 623, 624 (263 SE2d 508) (1979) (properly raised venue defense “not waived by the fact that the case was allowed to go to default judgment”); Williams v. Willis, 204 Ga. App. 328, 330 (419 SE2d 139) (1992) (trial court erred by ruling on motion for summary judgment before ruling on properly raised motion to transfer based upon improper venue).

2. Our holding in Division 1 of this opinion renders appellant’s remaining enumerations of error moot.

Judgment vacated and case remanded with direction.

Blackburn, C. J., and Eldridge, J., concur.

Lackland, & Heyward, Theodore H. Lackland, Kyle S. Kotake, for appellees.

       Directlink contends the trial court struck US Professionals’ answer, counterclaim, and motion to dismiss as a result of its failure to appear for trial. However, the record before us contains no transcript of the proceedings before the trial court on June 8, 2000, and the trial court’s written order does not include any such ruling.

       OCGA § 9-11-12 (b) provides in pertinent part:
      Every defense . . . to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion in writing: ... (3) Improper venue. ... A motion making any of these defenses shall be made before or at the time of pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.


text:
    A00A2528.
    SILLMAN v. THE STATE.
    (545 SE2d 85)
   Barnes, Judge.

James Sillman appeals his conviction of driving under the influence, asserting that the trial court erred in admitting certain evidence despite the State’s alleged failure to produce that evidence pursuant to a discovery request. Because Sillman waived the issue regarding his statement, and because he received a copy of the results when the breath test was administered, we affirm.

Sillman initially demanded a jury trial and requested from the State copies of any custodial statements and scientific reports. When the case was called for trial on May 9, 2000, Sillman asserted that he had not received the State’s response to his discovery request until the preceding day. He asked the court to exclude evidence that, when asked if he had been drinking, he responded, “yes, I had a little bit.” The State suggested that, because the police report was not clear as to whether the statement was custodial or not, the police officer could testify and “perhaps settle that issue right now and that could moot that point and you could decide whether or not we’ll proceed or whether defendant would elect another remedy.” The court decided to hold a pretrial hearing to determine whether the statement was made while Sillman was in custody and thus whether the statement should be excluded because the State had not produced it at least ten days before trial.

Before hearing testimony from the police officer, the parties conducted voir dire and the court impaneled a jury. Sillman then objected for the first time to the admission of breath test results that allegedly had not been produced at least ten days before trial. The trial court responded that Sillman asserted earlier that the only pretrial matter at issue was the admissibility of his custodial statement, and that if Sillman had notified the court at that time that discovery had not been completed, the court would not have sworn in a jury.

At that point, with the jury waiting in another room, the arresting officer testified that, while waiting in traffic, she saw the defendant drive up on the sidewalk to pass several vehicles. She pulled the car over and stepped back from a blast of alcohol that wafted out when Sillman rolled down his window. The officer read the implied consent warnings to Sillman, then asked him to step out of the car, and after he staggered, asked him how much he had to drink. He responded, “I had a little bit but not much.” At that point, the officer read Sillman the implied consent warnings, then arrested him, impounded his car, and took him to the hospital for a breath test.

A second officer testified, also outside the jury’s presence, that he administered two breath tests to Sillman. The first test showed a blood alcohol content of 0.193, the second test of 0.196. The officer testified that he gave Sillman a copy of the test results and told him, “[Y]ou need to keep this if you choose to seek legal counsel. Keep this in your possession.”

At the end of the motions hearing, the State argued first that it laid a proper foundation for admission of the breath test results. Sill-man responded that the State failed to establish a proper foundation and further argued that the results of the test should be excluded from evidence because he had not received the test printout until just before the hearing. The State responded that it did not have a copy of the printout earlier; that it had provided copies of the citation and police report, both of which noted that Sillman’s blood alcohol was 0.193; and that Sillman had received a copy of the printout when the test was administered.

The trial court ruled as follows:

I think as far as the test results not provided to you, you’re objecting to that and we’ve talked about that quite a bit since lunch, but if that had been brought up to my attention this morning, [defense counsel], I would have done my best to be sure that we had delayed this, but that was not brought to my attention and [the State] said she gave you that that was just given to her after lunch as well, so I’m not going to — you’re welcome to object to that and you have and you’ve put that on the record, but I’m not going to delay the trial because of that now that we’ve sworn in and impaneled a jury.

The trial court ruled the breath test results admissible otherwise and asked, “Is there anything else that I need to address?” Sillman responded, “No.” Sillman then withdrew his jury demand and submitted the case to the bench based on the motions testimony. After the State introduced more testimony from the arresting officer, the trial court found Sillman guilty of driving under the influence.

1. Sillman asserts that, because he did not receive a copy of the breath test results at least ten days before trial, the trial court erred in admitting it into evidence. However, the administering officer testified that he gave Sillman a copy of the test printout and advised him to keep it in case he decided to hire a lawyer. “As defendant had already been provided with a copy of the test results, he was not harmed by any failure by the State to provide the same pursuant to discovery.” Vincent v. State, 228 Ga. App. 691 (1) (492 SE2d 604) (1997). We conclude that the trial court did not abuse its discretion in admitting the breath test results into evidence.

2. Sillman also appeals the admission of his statement to the arresting officer that he had had “a little bit” to drink, claiming that the statement should have been excluded because the State failed to give him a copy at least ten days before trial. Before the jury was selected and sworn, Sillman asked the trial court to reset the case, so that he would have ten days to investigate regarding the statement. The State objected to having the case reset and asked the court to hold a brief hearing with the arresting officer to determine if the statement was custodial or not. The court asked Sillman if he had any other issues to raise, and Sillman responded that he had only a motion to suppress the breath test results, “regarding the procedures used to obtain those results,” which needed to be heard before the trial. The court recessed briefly to hear another case, then announced that a jury panel was coming in. Sillman reminded the court that he had a motion to suppress to be heard before the panel came in, to which the State responded that the motion did not involve a constitutional issue that needed to be heard before trial. Sillman asked that the jury be excused when the officer initially testified regarding the breath test results, and the court agreed.

The jury was impaneled, after which Sillman asked to have the issue of whether the arresting officer “gave the correct implied consent warning” heard outside the presence of the jury. The trial court heard testimony outside the jury’s presence from the arresting officer regarding the implied consent warnings she gave Sillman and the circumstances surrounding his arrest and from the testing officer regarding procedural issues involving the breath test. The State argued to the court regarding the admissibility of the breath test results, which the court ruled on as noted in Division 1. At that point, the trial court asked, “Is there anything else I need to address?” Sill-man responded “No,” and withdrew his jury demand, noting for the record that he wished to preserve his right “to raise the objections on appeal that we have made earlier.” After hearing additional testimony from the arresting officer, the trial court found Sillman guilty of driving under the influence.

After the court ruled on Sillman’s motion to suppress the breath test results and asked if Sillman had any further issues before starting trial, Sillman responded no, failing to obtain a ruling on his earlier claim that his statement should have been excluded because the State failed to give him a copy at least ten days before trial. Because Sillman failed to obtain a ruling, this enumeration presents nothing for review. Harper v. State, 241 Ga. App. 865, 867 (2) (528 SE2d 317) (2000).

Decided January 24, 2001.

Gregory M. Brown, for appellant.

Joseph J. Drolet, Solicitor, Julie A. Kert, Assistant Solicitor, for appellee.

Judgment affirmed.

Blackburn, C. J, and Eldridge, J., concur.


author: Mikell, Judge.

text:
    A01A0104.
    WOODY v. THE STATE.
    (545 SE2d 83)
   Mikell, Judge.

In 1997, James Leon Woody, Jr. entered a guilty plea to multiple counts of theft by taking, burglary, and entering an automobile, for which he was sentenced to 20 years probation. During the same year, Woody pleaded guilty to a separate indictment for theft by taking, burglary, and making a false statement and was sentenced to ten years probation. In both cases, Woody consented to the following as a special condition of probation:

Probationer shall submit to a search of his/her business, person, houses, papers and/or effects as these terms of the Fourth Amendment to the United States Constitution and Article I, Section I, Paragraph VIII of the Georgia Constitution are defined by the Courts, any time of the day or night with or without a search warrant whenever requested to do so by a probation officer, surveillance officer, or any law enforcement officer and specifically consents to the use of anything seized as evidence in any proceeding against him/ her.

In November 1999, Woody was arrested for shoplifting at the J. C. Penney store in Town Center Mall, prompting the instant probation revocation proceeding. At the hearing, sheriff’s detective Mike Laney testified that a security officer from the store, Sharon Triplet, notified him that when she interviewed Woody after he was arrested, Woody “openly bragged about shoplifting exploits to her”; discussed the “shoplifting endeavors” he and his roommate had engaged in; and said “his house had tons of stolen stuff in it.” According to Laney, Woody told Triplet that he resided at 175 Red Plum Drive. However, Laney checked Woody’s probation file and learned that he had moved from 175 Red Plum Drive, his parents’ address, to 55 Watson Road.

Based on this information, Laney obtained and executed a search warrant for 55 Watson Road. Laney was accompanied by Woody’s probation officer. They discovered a plethora of suspicious items, including several boxed ceiling fans, videogame memory cards, watches, compact discs, and more than 60 videotapes. After Woody was Mirandized, he confessed that he and his roommate had stolen the items from a local Wal-Mart store. Based on this evidence, the trial court ruled that the search was valid and revoked 12 of the 17 years remaining of Woody’s probation.

Decided January 24, 2001.

Ray & McKinney, Michael K. McKinney, Richard A. Jones, for appellant.

Roger G. Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellee.

We granted Woody’s application for discretionary appeal to determine two issues: (1) whether the Fourth Amendment waiver contained in the special condition of probation was valid in light of Fox v. State, 272 Ga. 163 (527 SE2d 847) (2000); and (2) whether the search warrant was supported by probable cause. In Fox, the Supreme Court ruled that a probationer who executed a condition of probation nearly identical to the one in the instant case had not waived his Fourth Amendment rights because the condition was not properly obtained as part of the plea bargaining process. However, in the case sub judice, Woody has not raised this issue. Moreover, no search warrant was obtained in Fox. Finally, our review of the transcript reveals that the trial court correctly concluded that probable cause existed for the issuance of the search warrant. Therefore, upon consideration of the entire record, applicable case law, and statutory provisions, this discretionary appeal is hereby dismissed as having been improvidently granted. Mosley v. Ga. Peace Officer &c. Council, 217 Ga. App. 798 (458 SE2d 503) (1995); Leigh v. State, 217 Ga. App. 583, 584 (458 SE2d 376) (1995).

Appeal dismissed.

Blackburn, C. J., and Pope, P. J., concur.


text:
    A00A2329.
    HUTCHERSON et al. v. OBSTETRIC & GYNECOLOGIC ASSOCIATES OF COLUMBUS, P.C. et al.
    (543 SE2d 805)
   Barnes, Judge.

Acting individually and as the administrator of the estate of Pamela Hutcherson, Jeffery Hutcherson sued Obstetric & Gynecologic Associates of Columbus, PC., and Charles Stamey, M.D., for medical malpractice. Hutcherson filed suit on February 5, 1999, for damages resulting from the death of his wife Pamela on February 7, 1994. Pamela Hutcherson, who was 37 weeks pregnant, died of a heart attack, and her unborn child died with her. The defendants moved for summary judgment, arguing that Hutcherson’s action was barred by the two-year statute of limitation and the five-year statute of repose. The trial court granted the motion, and Hutcherson appeals. For the reasons that follow, we affirm the trial court’s judgment.

1. On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998); Lane v. Spragg, 224 Ga. App. 606 (481 SE2d 592) (1997).

2. Viewed in this light, the record shows that 31-year-old Pamela Hutcherson became pregnant in the summer of 1993. Dr. Stamey was her obstetrician, as he had been for her first child, a daughter bom in 1989, and he or someone in his practice saw Pamela regularly throughout her pregnancy. On February 7, 1994, Pamela suffered a heart attack at her house, and despite efforts at cardiopulmonary resuscitation, she was pronounced dead upon her arrival at the hospital. Her eight-and-a-half-pound unborn child died with her.

Hutcherson’s deposition is not included in the record before us, and we uncovered no request by Hutcherson to require Dr. Stamey to file Hutcherson’s original deposition in the trial court. However, according to Hutcherson’s verified complaint, Dr. Stamey told Hutcherson that Pamela died of a heart attack that was caused by a heart murmur. The complaint does not indicate when this statement was made. Dr. Stamey testified in deposition that, while he remembered talking to Hutcherson about Pamela’s death, he did not recall specifically what he said. Hutcherson further alleges in his complaint that an autopsy revealed that his wife’s death was caused by “peripartum cardiomyopathy’ rather than a heart murmur, a conclusion confirmed by the medical examiner’s affidavit. This discrepancy forms the nucleus of Hutcherson’s fraud argument.

Hutcherson argues that, because Dr. Stamey incorrectly described the etiology of Pamela’s heart attack as being caused by a heart murmur instead of by “peripartum cardiomyopathy,” Hutcherson was misled into failing to request a copy of the autopsy report, which was completed April 15, 1994. Because of this incorrect information, he asserts, “he was deterred from further investigating the medical circumstances surrounding his wife’s death.”

Hutcherson submitted the affidavit of a medical expert who noted that Pamela’s medical records stated that she complained in December 1993 of shortness of breath, edema, and an irregular heartbeat. The expert opined that Dr. Stamey’s apparent failure to perform any diagnostic studies or tests at that time breached applicable standards of care. Hutcherson also submitted the affidavit of the medical examiner who performed the autopsy, who stated that

[a] heart murmur and cardiomyopathy both may effect [sic] how the heart functions, but it is not appropriate to state that the cause of death in this case is due to a heart murmur when in actuality the deceased succumbed to peripartum cardiomyopathy. Peripartum cardiomyopathy simply means that the heart dysfunction for unknown reasons is related to current or recent pregnancy.

In the letter to Pamela’s parents, the medical examiner explained that peripartum cardiomyopathy “is a very rare disorder that affects pregnant woman [sic] either a few weeks before or few weeks after they deliver a child. . . . Unfortunately, it often produces little in the way of symptoms.”

While Hutcherson amended his complaint to add allegations of evidence spoliation and breach of fiduciary, private and legal duties and again amended it to allege that Dr. Stamey intended to mislead him, we need not address these allegations initially because they do not relate to the allegation of fraud that could estop the defendant from asserting the defense of the statute of repose. Similarly, his assertion that Dr. Stamey failed to forward records to the Georgia Bureau of Investigation showing he prescribed codeine to Pamela, a medication to which she was allegedly allergic, three days before she died, is also not relevant to our initial inquiry, because Hutcherson has not argued that this failure prevented him from further investigating the circumstances surrounding his wife’s death.

The allegation we must first focus on is whether Dr. Stamey’s statement attributing Pamela’s heart attack to a heart murmur rather than peripartum cardiomyopathy is a sufficient allegation of fraud to allow the plaintiff to withstand summary judgment on the issue of the statutes of limitation and repose. In considering this allegation, we will assume for the sake of argument only that Hutcherson and Dr. Stamey had a confidential relationship.

Under the statute of limitation, a medical malpractice claim must be filed within two years after the date on which a death arising from a negligent act or omission occurred. OCGA § 9-3-71 (a). Under OCGA § 9-3-96, if a defendant commits fraud that deters a plaintiff from bringing an action, the period of limitation runs only from the time the plaintiff discovers the fraud. The Code further provides that “in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.” OCGA § 9-3-71 (b). Here, Hutcherson alleged that Dr. Stamey’s failure to perform diagnostic tests in December 1993 violated applicable standards of care, and suit was not filed until more than five years later, on February 5, 1999. Thus the action was not only filed after the two-year statute of limitation expired, but also outside the time limits of the statute of repose. However, while fraud does not toll the statute of repose,

if the evidence of defendant’s fraud or other conduct on which the plaintiff reasonably relied in forbearing the bringing of a lawsuit is found by the jury to exist, then the defendant, under the doctrine of equitable estoppel, is estopped from raising the defense of the statute of ultimate repose.

Esener v. Kinsey, 240 Ga. App. 21, 23 (522 SE2d 522) (1999), cert. denied, 240 Ga. App. 905 (2000).

Hutcherson’s claim that Dr. Stamey is estopped from asserting the statute of repose defense is premised on his argument that he was deterred from further investigating his wife’s cause of death because the doctor incorrectly ascribed Pamela’s heart attack to a heart murmur. However, nothing in the record shows that Dr. Stamey knew the medical examiner’s diagnosis of peripartum cardiomyopathy when Dr. Stamey allegedly told Hutcherson that Pamela’s heart attack was caused by a heart murmur.

We have previously reversed a trial court’s denial of a motion for summary judgment in a medical malpractice case in which the plaintiff claimed

she was deterred from learning the truth of her condition by defendant’s knowing failure to inform her that she had undergone an incomplete hysterectomy. However, she has failed to show any inference that defendant knew the cervix or any part of it remained. At best, plaintiff has shown defendant failed to detect the remaining tissue. While this failure may be evidence of negligence, it is not evidence of fraud [that] would toll the statute of limitation. A patient must present evidence of a known failure to reveal negligence in order to show fraud. ... In the case at bar, there is absolutely nothing from which we can make any inference that the defendant doctor had any knowledge of improper conduct on his part or that he tried to cover up such conduct in any way. . . .

Decided December 28, 2000

Reconsideration denied January 25, 2001

Neal H. Howard, Joann Brown-Williams, William D. James, for appellants.

Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., for appellees.

(Citations and punctuation omitted.) Hendrix v. Schrecengost, 183 Ga. App. 201, 202 (1) (358 SE2d 486) (1987).

Similarly, we affirmed the grant of summary judgment to a defendant doctor when the plaintiffs

only allegation of fraud in appellant’s amended complaint is that his condition was misdiagnosed on September 4, 1979, and that the physician continued to treat him until March 18, 1980, when he ordered X-rays. Such an allegation is insufficient to raise an issue of fraud, as misdiagnosis only raises an issue of negligence under OCGA § 9-3-70 (a) (2).

Johnson v. Gamwell, 165 Ga. App. 425, 426-427 (301 SE2d 492) (1983).

Hutcherson knew his wife died of a heart attack, and we conclude that a doctor’s attribution of the cause to a heart murmur rather than cardiomyopathy does not constitute sufficient evidence of fraud to create a jury question on whether the defendant is equitably estopped from raising the defense of the statute of repose. The trial court did not err in granting summary judgment to the defendants.

3. The remaining enumerations of error are rendered moot in light of our holding in Division 2.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.

       Because the record does not indicate that the trial court considered Hutcherson’s deposition in granting summary judgment to Dr. Stamey, our inquiry does not end here. See Tahamtan v. Sawnee Elec. Membership Corp., 228 Ga. App. 485 (491 SE2d 918) (1997).

       However, the record contains a letter from the medical examiner to Pamela Hutcherson’s parents dated April 18,1994, only three days after the autopsy was completed.


author: Eldridge, Judge.

text:
    A00A0070.
    NIX v. COX ENTERPRISES, INC. et al.
    (545 SE2d 319)
   Eldridge, Judge.

Franklin R. Nix, an attorney, sued Cox Enterprises, Inc. d/b/a The Atlanta Constitution, The Atlanta Journal, The Atlanta Journal-Constitution, and Rochelle Bozman for libel per se by listing him in two published articles on March 9, 1998, as one of seven examples of criminal rogue lawyers, accusing him of attempting to solicit clients from another lawyer. The defendants placed his name immediately after the account of six lawyers charged with stealing their clients’ money or convicted of felonies as examples of criminal rogue lawyers requiring State Bar discipline. The article also stated that these criminal rogue lawyers needed policing, were crooked, inept, arrogant, dishonest, or did shoddy work. The defendants stated that Nix had solicited another lawyer’s clients, and, immediately after listing such examples of criminal rogue lawyers charged or convicted of crimes, they inserted two lines in the article, regarding litigation between Nix and another lawyer over communication with the other lawyer’s client without disassociating language from the lawyers charged with criminal conduct. Accordingly, any reader might reasonably infer that the examples and statements about criminal rogue lawyers also included Nix as coming within the same description of characteristics as the criminal rogue lawyer listed before him. The relevant two lines of the article read as follows:

Another attorney, Franklin R. Nix, was scolded publicly by Fulton Superior Court Judge Wendy L. Shoob when Nix solicited business by sending letters to disgruntled Olympic vendors urging them to drop their current attorney and bring their business to them. Nix invoked the name of defense attorney Bobby Lee Cook in the letter to convince the potential clients to jump ship, and the attorney whose clients received the letters, Louis Levenson, has sued Nix, alleging tortious interference with his contracts and defamation. Both lawsuits are pending in Fulton Superior Court.

Nix stated his complaint under three theories of liability: defamation; invasion of privacy; and intentional infliction of emotional distress. The defendants answered and filed a motion to dismiss, now treated as a motion for summary judgment. Both parties filed evidence in support of and opposition to the motion; the defendants attached copies of the litigation that they reported in their article about Nix, asserting privilege for reporting a judicial proceeding accurately. On July 31, 1998, the trial court entered an order dismissing plaintiff’s complaint. On August 28, 1998, Nix appealed.

The Supreme Court of Georgia in Cox Enterprises v. Nix, 273 Ga. 152 (538 SE2d 449) (2000) reversed Nix v. Cox Enterprises, 242 Ga. App. 515 (529 SE2d 426) (2000) and held that, by not objecting and by filing his affidavit and evidence in opposition to Cox Enterprises’ motion to dismiss, Nix waived notice and agreed to consideration of thq motion as converted to a motion for summary judgment. The case was remanded to this Court to “address the merits of the appeal, treating the asserted dismissal as a grant of summary judgment.” (Citation and punctuation omitted.) Cox Enterprises v. Nix, supra. We adopt the opinion of the Supreme Court.

Thus, Nix’s sole enumeration of error is that the trial court erred in granting Cox’s motion for summary judgment. We reverse this judgment as to the issue of libel only and affirm the grant of summary judgment on the other theories of liability. Material issues of fact exist as to whether or not Cox Enterprises exercised reasonable care in publishing the article and made a “fair and honest report [ ] of court proceedings” under OCGA § 51-5-7 (6). In particular, although the report of the judicial proceeding was substantially accurate as to Levenson v. Nix, the question of whether the article was fair and honest was for the jury to determine in that the additional material did not come out in the reported judicial hearing and invidiously compared Nix’s conduct to lawyers who had committed criminal conduct against their clients; this led the reader to reasonably infer that Nix’s conduct had been criminal from the context of the entire article.

1. (a) Nix, in the lawsuit by Levenson, was alleged to have violated State Bar Rule 4-102 (d) Standard 6 (D) (1) by soliciting another lawyer’s clients by contacting them in writing and seeking employment without the lawyer’s permission:

A lawyer shall not send, or knowingly permit to be sent, on behalf of himself, his firm, his partner, associate, or any other lawyer affiliated with him or his firm, a written communication to a prospective client for the purpose of obtaining professional employment if: (1) the written communication concerns a specific matter, and the lawyer knows or reasonably should know that the person is represented by a lawyer in the matter.

State Bar Rules as amended, 252 Ga. 571, 641 (1984). Such standard’s violation is subject to disciplinary action by sanctions from admonition to disbarment. See Rule 4-102; 255 Ga. 861, 862 (1986). However, since 1984, when the rule was substantially amended, there has been no reported case of discipline of any lawyer under any of the multiple provisions of Standard 6, no less Standard 6 (D) (1). There exist in each Georgia Report many disciplinary actions under other standards against lawyers, including contact with a party represented by a lawyer. The primary focus of the State Bar disciplinary action has long been the protection of a lawyer’s client from the misconduct of his or her lawyer. See 255 Ga. 857 et seq. Thus, the violation of this standard, while unethical, fails to have the gravity of the violation of other standards protecting clients from their lawyers’ misconduct. As in Levenson v. Nix, supra, Standard 6 is designed to protect the lawyer-client relationship from intermeddling by another lawyer seeking to obtain employment by taking the client. Such aggrieved lawyer has an adequate judicial remedy in both law and equity to protect himself as demonstrated by the reported case of Levenson v. Nix.

(b) In a similar standard to Standard 6, Standard 47 and Directory Rule (DR) 7-104 (A) (1) of the Georgia Code of Professional Responsibility prohibit contact by a lawyer representing a party from contacting another party, who is also represented by counsel, without prior written permission of the other party’s counsel. Sanifill of Ga. v. Roberts, 232 Ga. App. 510, 511 (502 SE2d 343) (1998). This Standard 47 has been so narrowly construed that it is difficult to violate, indicating that it is not deemed so serious as to cause judicial action.

[Standard 47] is designed to protect a represented party’s right to effective representation of counsel by preventing adverse counsel from taking advantage of such party through undisclosed contact. The rule also promotes ethical behavior on the part of [lawyers]. In those cases where the parties are individuals, the rule has been easily enforced. When the named party is a corporation, the courts have struggled with the question of whether a corporate officer or employee, though not named as a defendant, should be considered a party. In State Bar of Georgia Formal Advisory Opinion 87-6 (1989), the Supreme Court of Georgia, adopting the consensus view of other jurisdictions, concluded that when a corporation is an opposing party in pending litigation, Standard 47 applies to an employee whose acts or omissions may be imputed to the corporation in relation to the subject matter of the case, as well as to an officer or other employee with authority to bind the corporation.

Id. at 511 (seeking to suppress a statement made in violation of this standard). However, the courts have held such standard does not apply to former employees who are not represented by the employer’s counsel. See Supreme Court Formal Advisory Opinion 94-3; Sanifill of Ga. v. Roberts, supra at 512; see also Alternative Health Care Systems v. McCown, 237 Ga. App. 355, 361 (6) (514 SE2d 691) (1999) (seeking to disqualify counsel for a violation of this standard). In fact, under the Federal Employers’ Liability Act, contact with other railroad employees by an injured railroad worker’s lawyer is authorized by federal statute, thus satisfying Standard 47, although neither the employer nor its counsel authorized such interview. Norfolk Southern R. Co. v. Thompson, 208 Ga. App. 240, 244-246 (4) (430 SE2d 371) (1993) (seeking to exclude from discovery work product statements obtained in violation of this standard).

(c) Even the violation of the sacrosanct attorney-client confidentiality, which is the bedrock of the attorney’s ethical duty to his client, does not rise to the substantial equivalent of criminal conduct. “There are no statutory criminal penalties visited upon an attorney who in violation of his ethical relation to his client divulges a confidential communication.” Cranford v. Cranford, 120 Ga. App. 470, 474 (4) (170 SE2d 844) (1969).

It is important to recognize, however, that behavior which might be unethical and might even subject an attorney to discipline by the State Bar does not necessarily rise to the level of criminal conduct. . . . It is therefore essential that we not confuse possibly unethical conduct with criminal conduct. While these types of conduct may be similar, they are not synonymous in every case. The possibly unethical conduct here does not rise to the level of criminal conduct within the [criminal] statute.

Marcus v. State, 249 Ga. 345, 346 (290 SE2d 470) (1982) (concealment of a material fact by trick, scheme, and device). Thus, any alleged ethical misconduct or unprofessional conduct of Nix is not comparable to criminal acts of the other lawyers mentioned in the article, although such conduct may violate disciplinary standards.

(d) “Any false and malicious defamation of another in any newspaper, magazine, or periodical, tending to injure the reputation of the person and expose him to public hatred, contempt, or ridicule, shall constitute a newspaper libel.” OCGA § 51-5-2 (a).

[A] negligence standard for private figure plaintiffs best preserves the balance between free speech interests and protection of the individual’s reputation. ... At trial of the negligence issue, the standard of conduct required of [news media] will be defined by reference to the procedures a reasonable publisher in [this party’s] position would have employed prior to publishing. . . . [The publisher] will be held to the skill and experience normally exercised by members of their profession.

(Citations omitted.) Triangle Publications v. Chumley, 253 Ga. 179, 181 (317 SE2d 534) (1984); see also Diamond v. American Family Corp., 186 Ga. App. 681, 683 (368 SE2d 350) (1988); Minton v. Thomson Newspapers, 175 Ga. App. 525, 527 (333 SE2d 913) (1985). Thus, it is a question of fact as to whether a publisher should exercise ordinary care to determine the difference between the violation of an ethical standard of the State Bar and violation of criminal law by a lawyer for purposes of comparison before publishing the article making such comparison as to Nix.

Whether a publication is libelous or not must be determined from what construction would be placed upon it by the average reader after construing the entire article. Macon Telegraph Publishing Co. v. Elliott, 165 Ga. App. 719, 721 (1) (302 SE2d 692) (1983).

Imputing criminal conduct is actionable per se. “Libel per se consists of a charge that one is guilty of a crime, dishonesty, or immorality. . . . Whether or not words, which are untrue in fact, are actionable depends upon whether the covert meaning attributable to them is understood by the reader in the covert sense.” (Citation omitted.) Morrison v. Hayes, 176 Ga. App. 128, 129 (1) (335 SE2d 596) (1985); see also Mead v. True Citizen, Inc., 203 Ga. App. 361, 362 (417 SE2d 16) (1992); Grayson v. Savannah News-Press, 110 Ga. App. 561 (139 SE2d 347) (1964). Thus, making a comparison of a professional ethics violation and criminal conduct may be construed from the entire article by reasonable jurors as imputing criminal conduct to Nix as one of two possible meanings, i.e., the conduct was only unethical, or the conduct was both criminal as well as unethical. Harcrow v. Struhar, 236 Ga. App. 403 (511 SE2d 545) (1999); Southland Publishing Co. v. Brogdon, 179 Ga. App. 726, 727-728 (347 SE2d 694) (1986).

(e) The defendants assert that the allegedly libelous material constituted an expression of their opinion. While the article expressed an opinion that all the lawyers listed, including Nix, should be under some means of professional discipline for their conduct, such expression of opinion did not constitute the alleged libel and would not be actionable as a good faith opinion. See Harcrow v. Struhar, supra at 404; Grayson v. Savannah News-Press, supra at 568.

There is no wholesale defamation exemption for anything that might be labeled opinion. To say otherwise would ignore the fact that expressions of opinion may often imply an assertion of objective fact. . . . The pivotal questions are whether [defendants’] statements can reasonably be interpreted as stating or implying defamatory facts about [Nix] and, if so, whether the defamatory assertions are capable of being proved false.

(Citation and punctuation omitted.) Eidson v. Berry, 202 Ga. App. 587-588 (415 SE2d 16) (1992); see also Harcrow v. Struhar, supra at 404. What a jury may finother lawyers’ criminal conduct in such fashion and without explanation d to be libelous is the inclusion of Nix’s noncriminal conduct with that of of his noncriminal conduct as to lead the average reader to believe that the contrary was true. It is not a statement of “opinion” to place Nix’s noncriminal conduct in direct relation to conduct that is criminal.

(f) Since Nix’s conduct was neither criminal nor an ethical violation upon which the Supreme Court of Georgia suspends or disbars lawyers, a jury issue exists as to whether or not the article, though accurately reporting the facts relating to the judicial proceeding under OCGA § 51-5-7 (6), was privileged because of the comparison it made by the inclusion of additional material, unrelated to the judicial proceeding, regarding lawyers engaged in criminal conduct, and Nix’s conduct. Such expansion of the account of the judicial proceeding with such unrelated additional material invited the reasonable reader to make the logical inference that his conduct was also criminal. Thus, a jury issue arises as to whether this was a “fair and honest report[ ],” and whether Nix was said in the article to have engaged in criminal conduct where such inclusion in the comparison may cause the reader to infer criminal conduct and involves a statement beyond mere accurate reporting of the judicial proceeding in isolation when the article is viewed as a whole. Horton v. Georgian Co., 175 Ga. 261, 273-274 (4) (165 SE 443) (1932); Baskin v. Rogers, 229 Ga. App. 250, 253 (4) (493 SE2d 728) (1997); Blomberg v. Cox Enterprises, 228 Ga. App. 178, 180-181 (1) (491 SE2d 430) (1997).

Where two constructions can be placed on the statements, one allowing the inference of criminal conduct or immoral conduct and the other not, this can be said to be ambiguous, requiring jury determination rather than a legal determination by the trial court. See Mead v. True Citizen, Inc., supra at 362.

(g) OCGA § 51-5-7 (6) creates a conditional privilege based upon fair and accurate reporting of the facts of the judicial case and does not extend to commentary or inclusion of matters unrelated to the judicial proceeding. Savannah News-Press v. Hartridge, 110 Ga. App. 203, 209-210 (138 SE2d 173) (1964); Lamb v. Fedderwitz, 68 Ga. App. 233 (22 SE2d 657) (1942), aff’d, 195 Ga. 691 (25 SE2d 414) (1943); see also Atlanta Journal Co. v. Doyal, 82 Ga. App. 321, 328-330 (2), (3) (60 SE2d 802) (1950). The privilege is conditioned upon substantial accuracy as to all material matters reported in the article, as well as fairness through impartiality, i.e., neutral reportage. Western Broadcasting of Augusta v. Wright, 182 Ga. App. 359, 360 (2) (356 SE2d 53) (1987); McCracken v. Gainesville Tribune, 146 Ga. App. 274, 276 (3) (246 SE2d 360) (1978). The report must present neutrally and impartially all the material matters in the judicial proceeding in a fair manner without distortion, commentary, or additions that change the meaning. Shiver v. Valdosta Press, 82 Ga. App. 406, 412-413 (61 SE2d 221) (1950); see also Lawton v. Ga. Television Co., 216 Ga. App. 768, 771 (1) (456 SE2d 274) (1995). “The reporter is not privileged under this Section to make additions of his own that would convey a defamatory impression, nor to impute corrupt motives to any one, nor to indict expressly or by innuendo the veracity or integrity of any of the parties.” (Citation and punctuation omitted.) Lawton v. Ga. Television Co., supra at 772. Where the article goes beyond the mere factual account of the judicial proceeding and adds additional matter from other unrelated judicial proceedings that may be deemed false when so joined, i.e., comparison to criminal conduct, the article may be found to be unfair and unprivileged by a jury when the article is considered as a whole. Wood v. Constitution Publishing Co., 57 Ga. App. 123, 134 (194 SE 760) (1937), aff'd, 187 Ga. 377 (200 SE 131) (1938); Atlanta Journal Co. v. Doyal, supra; see also Lawton v. Ga. Television Co., supra at 772; Western Broadcasting of Augusta v. Wright, supra at 360.

Fair and honest reports of the proceedings of judicial bodies or court proceedings are conditionally deemed to be privileged to the extent that it contained a report of judicial proceedings; however, this article was not limited to matters of this character, but contained additional statements tending to injure the reputation of the plaintiff and to expose him to public hatred and ridicule. “However, this privilege does not extend to reports which are not fair and honeste,] but which include additional matter in the way of statements or inferences of the publisher.” Horton v. Georgian Co., supra at 272. “As long as the facts are not misstated, distorted or arranged so as to convey a false and defamatory meaning, there is no liability for a somewhat less than complete report of the truth.” (Citation and punctuation omitted.) Horton v. Stewart, 153 Ga. App. 636, 641 (2) (b) (266 SE2d 230) (1980); see also Lawton v. Ga. Television Co., supra at 771. “[N]o privilege attached to such comments, [in] that the report was neither fair nor dispassionate.” Horton v. Georgian Co., supra at 273-274.

2. Nix asserted two other theories of liability, which the trial court found were barred as a matter of law: (a) invasion of privacy; and (b) intentional infliction of emotional distress.

(a) Matters of public concern when at issue and disclosed cannot give rise to liability for an invasion of privacy against the news media or anyone else. Wilson v. Thurman, 213 Ga. App. 656, 658 (2) (445 SE2d 811) (1994); Cox Communications v. Lowe, 173 Ga. App. 812, 813 (1) (328 SE2d 384) (1985); Meyer v. Ledford, 170 Ga. App. 245, 247 (316 SE2d 804) (1984).

(b) Publication of allegedly false statements cannot give rise to an action for intentional infliction of emotional distress, because the exclusive legal remedy where published works cause injury remains an action for defamation. Munoz v. American Lawyer Media, 236 Ga. App. 462, 465 (1) (b) (512 SE2d 347) (1999); Tucker v. News Publishing Co., 197 Ga. App. 85, 87 (2) (397 SE2d 499) (1990); Carter v. Wil lowrun Condo. Assn., 179 Ga. App. 257, 260 (5) (345 SE2d 924) (1986).

Decided January 25, 2001

Garland, Samuel & Loeb, Edward T. M. Garland, Nelson O. Tyrone III, for appellant.

Dow, Lohnes & Albertson, Peter C. Canfield, Thomas M. Clyde, for appellees.

Judgment affirmed in part and reversed in part.

Blackburn, C. J., and Barnes, J., concur.


author: Blackburn, Chief Judge.

text:
    A00A2041.
    BUCKHOLTS v. THE STATE.
    (545 SE2d 99)
   Blackburn, Chief Judge.

Following a jury trial, Kelvin J. Buckholts appeals from his conviction for violating the Georgia Controlled Substances Act, OCGA § 16-13-30, by possessing marijuana with the intent to distribute. Buckholts contends that the evidence was insufficient to support his conviction and that the trial court erred by: (1) denying his motion to suppress evidence seized in a search of his home; (2) failing to declare a mistrial after two jurors were seen talking to the chief investigator as they left the building after the jurors were seated on the jury, but before any evidence was presented; and (3) allowing selection of a jury panel from the same jury pool from which a prior jury panel was selected but dismissed due to a mistrial. For the reasons discussed below, we reverse.

1. We first address the sufficiency of the evidence. On appeal from a criminal conviction,

the evidence must be viewed in the light most favorable to support the verdict, and [Buckholts] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.

Lowery v. State

So viewed, the record shows that the police received information from the South Georgia Drug Task Force that drugs were being sold from a certain home. Two officers went to the residence “to conduct a knock and talk.” Investigator Eric Robinson knocked on the door and informed a woman inside the home that his name was Eric and that he was from the sheriff’s department. A few minutes later, Buckholts came to the door. Robinson asked Buckholts if they could search the house. A short while later, Buckholts agreed to the search.

Upon entry, Officer Robinson observed co-defendant Marsha Lynn Courson and her son in the living room. The officers first searched the back bedroom, which belonged to Buckholts, and then the adjacent bathroom. The police found a plastic bag containing 11.9 grams of marijuana floating in the toilet. The police then placed Buckholts under arrest and proceeded to the living room/kitchen area. There, the police found a notebook with “suspected drug sales written on it,” two sets of scales, and a box of plastic sandwich bags in a kitchen drawer. The police also found two cigarette boxes under the seat cushions in the living room. One box contained a marijuana cigarette, the other some loose marijuana. The police also arrested Courson.

Investigator Ivan Davis, the officer who accompanied Robinson into the home, was qualified as an expert witness in the field of investigation in the methods of sale and distribution of marijuana. Davis testified that the notepad listing names and numbers was typical of a record a distributor would keep showing how much drugs each customer has purchased. Davis also testified that the denominations of money spent on the purchases, $10 and $20, were typical of marijuana purchases. Davis further testified that the two sets of scales found in the kitchen were typically used to weigh marijuana in preparation for sale, whereas a person who has marijuana simply for their own use would have no need for such scales. The plastic sandwich bags were often used by distributors to package the drugs for sale.

Buckholts and Courson both were indicted on one count of possession with intent to distribute marijuana. The jury found Buckholts guilty as charged, but acquitted Courson.

“[I]t is unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.” OCGA § 16-13-30 (b). To support a conviction of possession of a controlled substance with intent to distribute, the State must prove possession and link that possession to the enterprise of the sale. Bethea v. State. 4The State can establish such a link through circumstantial evidence. See King v. State. Nonetheless, where, as here, a conviction hinges on circumstantial evidence, the evidence must exclude every reasonable hypothesis except that of guilt. See Clark v. State. 6Buckholts argues that the State did not exclude every reasonable hypothesis except that of guilt. We disagree.

In Clark, this Court concluded that the State did not exclude every reasonable hypothesis except that of guilt, noting in part that “the [S]tate produced no evidence that Clark had scales, guns, cash, drug packaging materials, or a large quantity of marijuana.” Clark, supra at 269. Here, the State has excluded all reasonable hypotheses except that of guilt. Expert testimony at trial established that the scales and notebook were consistent with drug distribution operations. Buckholts argues that a reasonable hypothesis is that the scales and notebooks belonged to Courson. The jury, however, rejected this theory by acquitting Courson.

2. Buckholts contends that the trial court erred by denying his motion to suppress because his consent was coerced. We disagree.

Before trial, Buckholts filed a motion to suppress the evidence seized from his home pursuant to the warrantless search by Officers Robinson and Davis. At the hearing on the motion, Officer Robinson testified that he told Buckholts that he had received information that marijuana was being sold from his home and asked him whether he minded if he searched the residence. The officers did not have their guns out. Officer Davis told Buckholts that he smelled marijuana. Robinson recalled that Buckholts “was a little hesitant about opening the door at first, but he agreed to let us search.”

Buckholts testified that he asked the officers for a warrant and that they responded that they did not need one because they smelled marijuana smoke. Buckholts further testified that the officers forced the door open. At the close of the hearing, the trial court denied the motion, finding that Buckholts had given consent.

Generally, a search based on voluntary consent eliminates the need for a search warrant or probable cause. Martinez v. State. “A trial court’s order on a motion to suppress will not be disturbed if there is any evidence to support it, and the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous.” Hobdy v. State.

Decided January 25, 2001.

Valerie T. Bryant, for appellant.

Here, the trial court made a credibility determination and concluded that Buckholts gave voluntary consent. Finding no clear error, we uphold the trial court’s denial of the suppression motion.

3. Defense counsel brought to the court’s attention that she observed Officer Robinson conversing with two of the jurors as they were leaving the courthouse on the day the jury was struck, which was the day before the trial actually began. Although defense counsel did not know the nature of the conversation that took place, Buckholts moved for a mistrial. Without questioning the jurors or Officer Robinson about the incident, the trial court ruled, “[w]ithout there being any . . . evidence or anything of that nature I would overrule the motion [for a mistrial].”

Buckholts contends that the trial court erred by denying his motion for a mistrial.

There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred. However, we have also recognized that some irregularities are inconsequential. The decision whether to remove a juror from a panel lies within the sound discretion of the trial court and will not be overturned absent an abuse of that discretion.

(Citations and punctuation omitted.) Pinkins v. State.

Given the presumption of prejudice to the defendant, the trial court abused its discretion by denying the motion for a mistrial without first determining the nature of the conversation that took place between the jurors and the officer and what impact, if any, this irregularity had upon the jurors. We are therefore compelled to reverse.

4. Buckholts contends that the trial court erred by allowing selection of a second jury panel from the same jury pool from which the first jury panel was selected. Because we are reversing, we need not address this issue.

Judgment reversed.

Eldridge and Barnes, JJ, concur.

J. David Miller, District Attorney, J. Bennett Threlkeld, Assistant District Attorney, for appellee.

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

        Lowery v. State, 242 Ga. App. 375 (530 SE2d 22) (2000).

        Bethea v. State, 220 Ga. App. 800 (470 SE2d 328) (1996).

         King v. State, 238 Ga. App. 575, 576 (519 SE2d 500) (1999).

        Clark v. State, 245 Ga. App. 267 (537 SE2d 742) (2000).

        Martinez v. State, 239 Ga. App. 662, 663 (522 SE2d 53) (1999).

        Hobdy v. State, 222 Ga. App. 625 (475 SE2d 686) (1996).

        Pinkins v. State, 243 Ga. App. 737, 741 (534 SE2d 192) (2000).


text:
    A00A2562.
    REESE v. CITY OF ATLANTA et al.
    (545 SE2d 96)
   Blackburn, Chief Judge.

Donald Reese appeals the trial court’s order which dismissed his claims against the City of Atlanta and its police officer, E. B. Lane. Reese sued the City and Lane, alleging that he had been falsely arrested and imprisoned by Lane, who apprehended him for scalping tickets at an Atlanta Falcons football game. Reese’s arrest occurred on October 27, 1996, and his complaint was stamped “Filed” in the clerk’s office on October 28, 1998, although it was received in the clerk’s office on October 27, 1998. Contending that the lawsuit had not been filed within the applicable statute of hmitation, the City and Lane moved for judgment on the pleadings. The trial court granted the motion. For the reasons that follow, we reverse.

In this appeal, the sole issue is whether Reese’s complaint was timely filed. Reese’s complaint was stamped as filed on October 28, 1998. Generally, the date stamped on a filing by the clerk is deemed the date of filing. See Lavan v. Philips. Also, as a general rule, one who selects the United States Postal Service or another agency to transmit a complaint to the clerk assumes all the risks usually incident to the business of mail delivery, if the material is not timely received. See State of Ga. v. Jones It is the date of delivery to the clerk’s office that constitutes the date of filing, even if the clerk erroneously stamps a later date as the filing date. Lavan, supra. In fact, we have held previously:

The actual date of filing is the date upon which the paper is handed to the clerk to be filed. [Cits.] The clerk’s endorsement as to the date of filing is the best evidence of the filing of such paper, and is presumed correct as long as it is not challenged. [Cit.] However, the clerk’s endorsement is not a necessary prerequisite to filing, but only evidence of delivery of the paper intended to be filed to the clerk. [Cit.] So, where a pleading has been delivered for filing to the clerk, it will be deemed filed even though that officer fails to make the proper entry of filing thereon. [Cits.]

(Punctuation omitted.) Lavan, supra at 573-574.

Reese’s counsel testified that on October 26, 1998, he had forwarded via Federal Express the original complaint and one copy addressed to the clerk of the superior court, Juanita Hicks. According to counsel’s uncontroverted testimony, he obtained written confirmation from Federal Express documenting that the delivery had, in fact, occurred on October 27, 1998. Filed with counsel’s affidavit were two exhibits indicating that on October 26, 1998, counsel had sent a package which contained the complaint, by Federal Express and marked “Priority Overnight (Next business morning).” A Federal Express tracking document showed that delivery to the clerk’s office had occurred on October 27, 1998, at 10:05 a.m., and that the package had been signed for by an employee. The complaint contained therein was not stamped “Filed” by the clerk’s office until October 28, 1998.

Evidence shows that the complaint timely reached the clerk’s office and was signed for early in the morning on October 27, 1998. No explanation appears in the record as to the cause of the delay by the clerk’s office in date-stamping the complaint. See Jefferson v. State. The clerk’s endorsement of October 28, 1998, did not accurately reflect the actual filing date of October 27, 1998. See Lavan, supra at 575. The evidence establishes that the complaint was actually filed October 27, 1998, and the trial court erred in holding otherwise.

Reese’s claims for false arrest and false imprisonment had to be filed within the statute of limitation for personal injuries. Campbell v. Hyatt Regency. OCGA § 9-3-33 requires that such actions “shall be brought within two years after the right of action accrues.” Before the law was amended in 1985, a personal injury action was barred when filed on the second anniversary of the injury. Davis v. DES A Intl. In 1985, however, the legislature amended OCGA § 1-3-1 (d) (3) to provide that “ ‘when a period of time measured in days, weeks, months, years, or other measurements of time except hours is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted.’ ” Davis, supra. Applying this standard of computation of time in this case, it was timely filed on the second anniversary of the event, October 27, 1998.

Notwithstanding the amendment to OCGA § 1-3-1 (d) (3), in the order dismissing the case, the trial court found:

Plaintiff alleges that he was frisked, handcuffed, and arrested on October 27, 1996; therefore, he would have had to file his claims for false arrest and false imprisonment on or before October 26, 1998. Lowe v. Pue, 150 Ga. App. 234 [(257 SE2d 209)] (1979). Likewise, Plaintiff’s claim for malicious prosecution is barred because the charge against him was dismissed on October 28, 1996, so he would have had to file his complaint by October 27, 1998. Because Plaintiff’s complaint was stamped as filed on October 28, 1998, the Court finds that his claims are barred by the statute of limitations.

In light of the 1985 amendment to OCGA § 1-3-1 (d) (3) and subsequent case law, the court’s computation was in error, and Reese’s claims were timely filed. See Davis, supra; Day v. Burnett. See also Mitchell v. Hamilton, Because Reese had until October 27, 1998, to file his complaint, it was timely. Weems v. Munson Transp.

The trial court also erred in dismissing the claim for malicious prosecution. The two-year period of limitation on the malicious prosecution claim began to run from October 28, 1996, the date on which the magistrate dismissed the criminal trespass charge. Waters v. Walton. A malicious prosecution action must be brought within two years after termination of the underlying prosecution in plaintiff’s favor. Dismissal of an arrest warrant by a magistrate constitutes termination of the prosecution favorable to plaintiff. Id.

Under OCGA § 9-11-15 (c), a party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order. When the claim asserted in the amended pleading arises out of the same conduct asserted in the original pleading, the amendment relates back to the original pleading. Smith v. Wilfong. Here, Reese amended his original complaint to add a claim arising out of the same incident. Since Reese filed the amendment to his complaint before the entry of a pretrial order and before the order dismissing the action, it relates back to the date of filing and is not barred by the statute of limitation. Id. See also Wilson v. Commercial Cold Storage.

Judgment reversed.

Eldridge and Barnes, JJ, concur.

Decided January 25, 2001.

William J Wright, for appellant.

Tuwanda R. Williams, for appellees.

        Lavan v. Philips, 184 Ga. App. 573 (362 SE2d 138) (1987).

        State of Ga. v. Jones, 125 Ga. App. 361, 363-364 (187 SE2d 902) (1972).

        Jefferson v. State, 216 Ga. App. 442 (1) (454 SE2d 632) (1995).

        Campbell v. Hyatt Regency, 193 Ga. App. 542, 543 (3) (388 SE2d 341) (1989).

        Davis v. DESA Intl., 209 Ga. App. 318 (433 SE2d 410) (1993).

        Day v. Burnett, 199 Ga. App. 494, 495 (1) (405 SE2d 316) (1991).

        Mitchell v. Hamilton, 228 Ga. App. 850 (1) (493 SE2d 41) (1997).

        Weems v. Munson Transp., 210 Ga. App. 766, 767 (1) (437 SE2d 640) (1993).

        Waters v. Walton, 225 Ga. App. 119, 120 (483 SE2d 133) (1997).

        Smith v. Wilfong, 218 Ga. App. 503, 505 (1) (462 SE2d 163) (1995).

        Wilson v. Commercial Cold Storage, 179 Ga. App. 260, 261 (346 SE2d 6) (1986).


author: Smith, Presiding Judge.

text:
    A00A1970.
    FRIEDRICH et al. v. FIDELITY NATIONAL BANK.
    (545 SE2d 107)
   Smith, Presiding Judge.

This appeal raises a question of first impression in this State concerning the method of awarding attorney fees following the settlement of a class action lawsuit. We find persuasive Camden I Condo. Assn. v. Dunkle, 946 F2d 768 (11th Cir. 1991). That decision describes three methods of determining attorney fees in the type of settlement here and concludes that the “percentage of the fund” method is the most appropriate. Because the trial court’s order does not demonstrate that the court complied with the manner of determining fees prescribed by Camden I, we vacate the award and remand this case for proceedings consistent with this opinion.

The fee award at issue arises out of a class action lawsuit concerning a failed securities offering of the Automobile Insurance Premiums Trust. The trust was formed to provide loans to licensed premium finance companies, which then provided financing to firms and individuals desiring to finance the cost of their property and casualty insurance premiums. Among other things, the complaint alleged that Fidelity National Bank (FNB), as a trustee under a declaration of trust, breached the trust agreement.

Class counsel and FNB negotiated a settlement in which FNB agreed to pay the principal sum of $500,000 to the class. After the trial court gave final approval to the settlement, the court ruled on class counsel’s application for an award of attorney fees. In the application, counsel sought fees in the amount of $125,169.86, which represented 25 percent of the settlement amount plus accrued interest. The trial court awarded attorney fees in the amount of $81,982.34. The trial court’s order recites that the court

reviewed the time and labor required, the novelty and difficulty of the questions involved, the skill necessary to perform the legal services properly, the probability of preclusion of other employment, the customary fee, time limitations, the amount in controversy, awards in similar cases, the time required to reach a settlement, the lack of objections by any class members and the results obtained.

The order also recites that counsel had submitted records showing the number of billable hours spent on the litigation, the rates charged, and an itemization of time and work expended in the action totaling $92,198. The trial court stated that it deducted $7,278 in “billings that seemed tangentially connected to this case or excessive in other ways.” Through the plaintiffs in this action, class counsel appeals, contending that the trial court used an improper standard of awarding fees.

The method of awarding attorney fees in a case involving the type of settlement involved here has not been squarely addressed by the courts of this State. The Eleventh Circuit, however, discussed the issue in Camden I, a well-reasoned and highly instructive opinion concerning various methods of awarding fees in a class action lawsuit. We turn to that case for guidance.

In Camden I, the court discussed the well-established principle, known as the “American Rule,” that in general, all parties bear their own litigation costs. Id. at 770-771. A recognized exception to this rule, however, concerns the award of attorney fees from a “common fund,” a concept based on the principle that those who benefit from a lawsuit without contributing to the costs involved “are unjustly enriched at the successful litigant’s expense.” (Citation and punctuation omitted.) Id. at 771. The common fund exception to the American Rule has been recognized in Georgia. See State of Ga. v. Private Truck Council, 258 Ga. 531, 534-535 (5) (371 SE2d 378) (1988). Despite the agreement among jurisdictions that an award from a common fund is desirable in this type of case, however, the method of determining the amount of the award has varied among jurisdictions. These methods are extensively discussed in Camden I.

The court in Camden I first noted that, historically, fee awards in common fund cases were computed under a “percentage of the fund” analysis, with the amount being left in the discretion of the trial court after considering the reasonableness of the award under the circumstances of any particular case. Id. at 771. The court stated that “every Supreme Court case addressing the computation of a common fund fee award has determined such fees on a percentage of the fund basis. [Cits.]” Id. at 773.

But as further discussed in Camden I, in 1973, another set of guidelines was prescribed by the Third Circuit, designed to provide more easily reviewable findings and to ensure compensation to attorneys “for the reasonable value their time would normally command in the marketplace.” Id. at 772. Under this approach, now known as the “lodestar” method of computing fees, a trial court must multiply the number of hours reasonably spent by trial counsel by a reasonable hourly rate. This figure can then “be adjusted upward or downward for certain factors known as multipliers, such as contingency and the quality of the work performed, to arrive at a final fee.” Id. A short time after the lodestar method was established, the Fifth Circuit in Johnson v. Ga. Hwy. Express, 488 F2d 714 (5th Cir. 1974) adopted a 12-factor method of determining attorney fees. Camden I, supra at 772. The court in Camden I noted that under both the lodestar and 12-factor methods, the “most heavily weighted” criteria are the “time and labor required.” (Citation and punctuation omitted.) Id. at 772.

After detailing these methods of computing fee awards, the Camden I court discussed the criticism by commentators and lawmakers of both the lodestar and 12-factor approaches, particularly the emphasis placed by these methods on the number of hours expended by counsel. Id. at 773 (3). Much of this discussion was based on a report prepared by a task force commissioned by the Third Circuit to study problems related to the award of attorney fees and to develop recommendations that would accomplish several goals. Among other things, these goals were developed “to encourage early settlement or determination of cases; to provide predictability . . . and to arrive at fee awards that are fair and equitable to the parties and that take into account the economic realities of the practice of law.” (Citation omitted.) Id. at 773. Concluding that neither the lodestar method nor the 12-factor method “achieve [d] any of these stated goals in common fund cases in which the measure of the recovery is the best determinant of the reasonableness and quality of the time expended,” id., the task force recommended that the percentage of the fund method be used to award fees in all common fund cases. Id. After reviewing the task force report, along with United States Supreme Court cases and cases from other jurisdictions, the Camden court found the percentage of the fund approach to be “the better reasoned in a common fund case.” Id. at 774.

Although some other jurisdictions have given trial courts discretion to apply either a lodestar or percentage of the fund analysis in common fund cases, we find persuasive the criticisms of the lodestar method discussed in Camden I as well as other cases such as Swedish Hosp. Corp. v. Shalala, 1 F3d 1261 (D.C. Cir. 1993). As stated in Swedish Hosp., the lodestar method “encourages significant elements of inefficiency,” id. at 1268, giving incentive to attorneys “to spend as many hours as possible, billable to a firm’s most expensive attorneys.” Id. That court also noted that the lodestar approach afforded “a strong incentive against early settlement since attorneys will earn more the longer a litigation lasts. [Cits.]” Id. at 1268-1269. We also note that court’s comment that

a percentage-of-the-fund method is less demanding of scarce judicial resources than the lodestar method. The lodestar method makes considerable demands upon judicial resources since it can be exceptionally difficult for a court to review attorney billing information over the life of a complex litigation and make a determination about whether the time devoted to the litigation was necessary or reasonable.

Id. at 1269-1270.

After reviewing this comparison of the lodestar and percentage of the fund method, as well as the criticisms of the lodestar method by the courts of other jurisdictions, we find the percentage of the fund approach to be the most equitable, sensible, and fair. We therefore hold that when assessing attorney fees in a common fund case, a percentage of the fund analysis is the preferred method of determining these fees, unless unusual circumstances would make its use unfair or impractical. To facilitate appellate review of the reasonableness of fees, as discussed in Camden I, we also conclude that when awarding attorney fees in this type of case, a trial court must “articulate specific reasons for selecting the percentage upon which the . . . award is based.” Id. at 775. The trial court’s order must identify all factors on which the court relied and explain how each factor affected the selection of the percentage awarded as attorney fees. Id. While these factors may vary from case to case, Camden I identifies several that should be considered:

[T]he Johnson factors continue to be appropriately used in evaluating, setting, and reviewing percentage fee awards in common fund cases. Other pertinent factors are the time required to reach a settlement, whether there are any substantial objections by class members or other parties to the settlement terms or the fees requested by counsel, any non-monetary benefits conferred upon the class by the settlement, and the economics involved in prosecuting a class action. In most instances, there will also be additional factors unique to a particular case which will be relevant to the [trial] court’s consideration.

Decided January 29, 2001.

Vaughan & Murphy, Charles C. Murphy, Jr., Patricia A. Chandler, for appellants.

Stites & Harhison, James T. White, for appellee.

Id.

It appears in this case the trial court may have considered some of the 12 Johnson factors. The order falls short, however, of the requirements set forth in Camden I. The order does not state a specific percentage of the fund awarded as attorney fees. And although the order does identify the factors on which the trial court relied, it does not explain how each of these factors impacted the court’s decision. Furthermore, given the discussion in the order concerning class counsel’s billable hours and hourly rate, it appears that the trial court may have placed undue weight on the time spent by counsel, in contravention of the principles underlying the percentage of the fund approach, as discussed in Camden I. We therefore vacate the award and remand this case to the trial court for proceedings consistent with this opinion. In particular, we direct the trial court to enter an award complying with the requirements for awarding attorney fees in a common fund case, as set out in Camden I.

Judgment vacated and remanded.

Johnson, P. J., and Phipps, J., concur.

       In a one-page brief, FNB states that as a part of the settlement, it agreed that it would not object to counsel’s request for attorney fees. The brief further recites that consistent with this agreement, FNB did not object to the application for an award of attorney fees in the trial court and that it “does not object to the fees that are the subject of the instant appeal.” Finally, the brief recites that FNB “makes no response to the matters addressed in Appellant’s brief beyond what has been stated here.”

       These 12 factors are set out in Camden I, supra at 772, in. 3.

       For a complete recitation of the goals the task force was commissioned to study, see Camden I, supra at 773.

       See, e.g., Johnston v. Comerica Mtg. Corp., 83 F3d 241, 246 (8th Cir. 1996); Brundidge

        v. Glendale Fed. Bank, 168 Ill.2d 235 (659 NE2d 909) (1995).


text:
    A00A2063.
    THE STATE v. SHERRILL.
    (545 SE2d 110)
   Smith, Presiding Judge.

DeKalb County police stopped Stuart Sherrill at a roadblock. The stop led to charges of driving under the influence of alcohol and driving with an unlawful blood alcohol content. OCGA § 40-6-391 (a) (1), (5). The trial court found that the roadblock was unreasonable under the circumstances and that the evidence gathered as a result of Sherrill’s unlawful search and seizure must be suppressed. In a separate order, the trial court also found that the implied consent notice under OCGA § 40-5-67.1 (b) fell below the minimum level of fairness guaranteed by the due process clause of the Georgia Constitution. The State appeals. For reasons that follow, we reverse.

Viewed in the light most favorable to the trial court’s ruling, the record shows that on December 13, 1997, DeKalb County police established a roadblock on Peachtree Road in Atlanta. The purpose of the roadblock was to make license and insurance checks, as well as to apprehend DUI drivers. The police, who numbered no less than ten uniformed officers, stopped all cars traveling in the northbound lanes. Motorists were detained less than a minute while the officers checked their licenses and insurance. The DUI task force was present. The roadblock was identified by warning signs, blue lights, and the number of officers in the area. During the course of the roadblock, Sherrill was stopped by Officer Redding. Sherrill immediately produced his license and proof of insurance, and there was no evidence that he was driving in any unsafe manner. Redding, however, noticed the odor of alcohol on Sherrill’s breath when Sherrill handed him his license and proof of insurance. Although Redding had no specialized training in identifying DUI suspects, he was certified under the Georgia Peace Officer Standards & Training Act, OCGA § 35-8-1, and had participated in 75 DUI arrests. Redding asked Sherrill where he was coming from, and Sherrill replied that he had been to Thirsty’s Bar. Sherrill agreed to undergo a field sobriety evaluation. After conducting the field tests, Redding placed Sherrill under arrest, read him the implied consent notice, and took him to a mobile blood alcohol testing unit for a breath test.

The trial court held an evidentiary hearing on August 31, 1998, to consider Sherrill’s motions in limine to exclude evidence. The trial court denied the motions by order dated August 25, 1999. Sherrill subsequently filed an amended motion to exclude evidence on constitutional grounds, along with a motion to reconsider. The trial court granted Sherrill’s amended motion because it found that the implied consent notice required by OCGA § 40-5-67.1 (b) was unconstitutional. The trial court also granted Sherrill’s motion to reconsider and suppressed all evidence stemming from Sherrill’s stop at the Peachtree Road roadblock.

On appeal, a trial court’s findings of fact based upon conflicting evidence are analogous to the verdict of a jury and will not be disturbed if any evidence exists to support them. State v. Swift, 232 Ga. 535, 536 (1) (207 SE2d 459) (1974). The trial court’s application of undisputed facts to law, however, is subject to de novo appellate review. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

1. In Klink v. State, 272 Ga. 605, 606-607 (1) (533 SE2d 92) (2000), our Supreme Court held that the implied consent notice required by OCGA § 40-5-67.1 did not violate a citizen’s right to due process under the Georgia Constitution. The trial court’s ruling on this point was therefore erroneous, and its “Order Granting Defendant’s Motion in Limine” is vacated.

2. The burden of proof of establishing that Sherrill was not subject to an illegal seizure of his person rests upon the State. State v. Holler, 224 Ga. App. 66, 69 (2) (479 SE2d 780) (1996). In examining the propriety of roadblock stops, the issue for resolution is not whether probable cause existed to stop the vehicle, but whether the roadblock stop was otherwise implemented and conducted in such a manner that the stop of the vehicle was “reasonable” under the Fourth Amendment. LaFontaine v. State, 269 Ga. 251, 252 (3) (497 SE2d 367) (1998). See Michigan Dept. of State Police v. Sitz, 496 U. S. 444, 450 (110 SC 2481, 110 LE2d 412) (1990). In determining such reasonableness, our Supreme Court has held:

A roadblock is satisfactory where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the “screening” officer’s training and experience [are] sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication. [Cit.]

LaFontaine, 269 Ga. at 253. The LaFontaine test was reconfirmed in Brent v. State, 270 Ga. 160 (510 SE2d 14) (1998), in which our Supreme Court ruled that the Georgia Constitution requires no greater protection to the individual than the United States Constitution in balancing the citizen’s right to travel and government’s interest in law enforcement. Id. at 162 (2).

Here, the record shows that the State satisfied its burden of proving reasonableness under LaFontaine. Considering the LaFontaine factors, the record shows that Redding was ordered to work the roadblock by his immediate supervisor, Sergeant Ice. Police Lieutenant Miller, whose job was to oversee and instruct, was present at the roadblock. Redding had no personal knowledge of the supervising officer who actually authorized the roadblock, and the State was unable to come forward with this information at the hearing. But it is important to show lack of “unfettered discretion” on the part of field officers, see LaFontaine, 269 Ga. at 253 (3), and the State has done that by showing that Redding reported to the roadblock at the direction of a superior and was under a lieutenant’s supervision while on site. Although the police were stopping only all cars traveling north, this has been found to be reasonable. See State v. Stearns, 240 Ga. App. 806, 807-808 (524 SE2d 554) (1999). The minimal nature of the stop and the identification of the checkpoint were well established at the hearing.

Sherrill questions the sufficiency of Officer Redding’s training and experience because he has only basic police training and there was no showing that he had acted as a screening officer at a roadblock before. A screening officer need only be “sufficiently trained to enable him to make a determination as to which motorists should be asked to take the field sobriety tests.” Evans v. State, 190 Ga. App. 856, 857 (380 SE2d 332) (1989). Given Redding’s considerable experience in handling DUI arrests, the State demonstrated that he was able to make a reasoned judgment as to which motorists should be asked to take a sobriety test.

We note that the LaFontaine factors structure the court’s analysis but are not absolute criteria that must be met in every particular for a roadblock to be reasonable. Instead, the court looks to the “totality of circumstances.” See Albert v. State, 236 Ga. App. 146, 148 (511 SE2d 244) (1999). Looking at the totality of the circumstances surrounding the roadblock, we find that it was reasonable for purposes of complying with state and federal constitutional requirements.

The trial court here found the roadblock to be unreasonable because the State failed to show that DeKalb County police complied with additional local requirements with respect to the establishment of a roadblock. At the hearing on his motion to suppress, Sherrill introduced a certified copy of a portion of the DeKalb County police policies and procedures manual, which the trial court also referred to as a traffic law enforcement manual. In its final order, the trial court found the manual to have the force of law. Section 4-9, paragraph H, of the manual provides:

Roadblocks for purposes of apprehending D.U.I.s or other non-regulatory enforcement must meet guidelines in addition to those mentioned above. 1. A roadblock will only be used when a specific need or public concern can be documented. For instance, a D.U.I. roadblock could only be established at locations which can be shown to have a higher than normal incidence of D.U.I. arrests or a higher D.U.I. accident rate. 2. Precinct Commanders authorizing roadblocks for the purpose of D.U.I. enforcement will document the need and supporting data for a roadblock at a specific location. Subsequent enforcement data (i.e., number of arrests, tickets) will be maintained and stored with the authorization of the precinct. This information will be retained for a period of one year. The Uniform Division Commander will be notified in advance of the establishment of any roadblock for the purposes defined in “G” and “H” above.

The trial court, after setting forth the above-listed requirements for establishing a DUI roadblock, held:

Decided January 29, 2001.

Gwendolyn R. Keyes, Solicitor, Lawrence A. Silverman, Thomas E. Csider, Assistant Solicitors, for appellant.

This Court concludes that the procedures stated in the DeKalb Traffic Law Enforcement manual are required to be followed for that roadblock to be reasonable. The State did not offer evidence to show that these specific requirements were followed. The State did not provide documentation to establish why the roadblock was set up at the location in question. The Court concludes that the requirement under the DeKalb Traffic Law Enforcement manual for DUI roadblocks was not met. The manual states, “[T]he roadblocks for the purpose of apprehending DUI [drivers] must meet the guidelines in addition to those mentioned above.” The Court treats the word “must” as meaning that it is required and not optional. Although the opinion in [LaFontaine v. State, supra,] does not require documentation of that nature, the County manual requires that kind of documentation.

While we agree with Sherrill that the Georgia Constitution and laws may establish rights greater than the minimum required by the United States Constitution, see generally Powell v. State, 270 Ga. 327 (510 SE2d 18) (1998), the DeKalb County police policies and procedures manual is not such a law. The manual speaks to notification within the police department and the establishment and retention of documents. Although the manual directs that “[a] roadblock will only be used when a specific need or public concern can be documented,” it does not specify what these needs or concerns must be. The establishment of roadblocks at locations that are shown to have a higher than normal incidence of DUI arrests is an example of such a concern, not a requirement. We do not find that the procedures manual, which primarily concerns internal police matters, acts to grant rights to DeKalb County drivers not extant under existing constitutional and statutory law. Therefore, without deciding whether failure by police to comply with a local law could require the exclusion of otherwise admissible evidence, we hold that the State was not required to show compliance with Section 4-9, paragraph H, of the DeKalb County police policies and procedures manual to establish a valid search and seizure. Accordingly, the trial court’s grant of Sherrill’s motion in limine must be reversed.

Judgment reversed.

Johnson, P. J., and Phipps, J., concur.

Chestney Hawkins Law Firm, Robert W. Chestney, for appellee.