author: Andrews, Judge. Beasley, Judge,

text:
    A92A1491.
    SMITH v. THE STATE.
    (426 SE2d 23)
   Andrews, Judge.

Smith was tried and convicted of aggravated sodomy arising out of his acts against his stepchild, and he appeals.

1. In his first enumeration of error, Smith contends that the trial court erred in allowing evidence of similar transactions. We disagree.

At trial, there was evidence that Smith forced his stepchild when she was approximately four or five years old to perform oral sex on him as punishment for sucking her thumb. The victim was ten at the time of trial. Smith contends that the trial court improperly allowed testimony regarding similar acts involving Smith’s niece. Smith’s niece testified that in 1985 when she was 16 years old, she lived with Smith and his family for a short time. During this period, Smith on several occasions approached his niece in a sexual manner. At various times, he fondled her, kissed her, attempted to lie on top of her and attempted to take off her clothes.

We find that the evidence was properly admitted. See generally Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991); Hargrove v. State, 202 Ga. App. 854, 856 (415 SE2d 708) (1992). Although Smith claims in his enumeration of error that the prior transaction was introduced for an improper purpose, that there was not sufficient evidence of his identity regarding the prior incident, and that the other transaction was not sufficiently similar to the crime at issue in this case, the only argument which Smith pursues is that the acts were not sufficiently similar. He claims that because the prior sexual misconduct involved a sixteen-year-old niece and not a four-year-old stepdaughter the potential for prejudice outweighed its probative value. He further argues that because of the prior female’s age, his conduct with regard to her was not unlawful and testimony regarding it should have been barred.

His arguments are without merit. See generally OCGA § 16-6-22 (a) (1), (6). Both acts were perpetrated on young females who resided in the same dwelling as Smith and over whom Smith exerted authority. In both instances the sexual misconduct occurred in the dwelling in which Smith and the female resided. The trial court was authorized under these circumstances to admit the niece’s testimony as evidence of Smith’s state of mind, intent, and course of conduct. See Jackson v. State, 198 Ga. App. 447, 448 (402 SE2d 279) (1991); see also Oller v. State, 187 Ga. App. 818, 820 (2) (371 SE2d 455) (1988); Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989).

“The independent crimes were sufficiently similar to the offenses charged so that proof of the former tended to establish intent or bent of mind to commit the crime for which defendant was on trial. The requisite similarity between the incidents depends on the purpose for which the evidence is being presented. . . . Generally when similar transactions are being introduced to prove such issues as bent of mind, motive or intent, less similarity need be shown than when identity is sought to be proved thereby.” (Citations and punctuation omitted.) Hargrove, supra at 856. Further, “the exception to the general rule that evidence of independent crimes is inadmissible has been more liberally extended in the area of sexual offenses.” (Citations and punctuation omitted.) Hill v. State, 183 Ga. App. 404, 406 (359 SE2d 190) (1987). The evidence here was introduced for a limited purpose; the trial court gave appropriate limiting instructions both before the evidence was introduced and in its closing charge. Accordingly, no error appears. Terry v. State, 259 Ga. 165, 169 (1) (377 SE2d 837) (1989); Daniel v. State, 194 Ga. App. 495 (1) (391 SE2d 128) (1990).

2. In his second enumeration of error, Smith argues that the trial court erred in not allowing an expert witness, a clinical psychologist, to testify regarding the results of tests administered to Smith, which indicated that Smith had not exhibited behavior typical of a child molester. Citing Holsey v. State, 199 Ga. App. 782, 784 (7) (406 SE2d 127) (1991), and Hall v. State, 201 Ga. App. 626 (2) (411 SE2d 777) (1991), Smith contends that the expert would not have testified regarding the ultimate issue in the case, but that he would have testified as to whether Smith’s behavior was that typically displayed by a molester.

Smith’s arguments here were resolved adversely to him in Jennette v. State, 197 Ga. App. 580, 581 (3) (398 SE2d 734) (1990), and the rationale of that case applies here. “The profile testimony sought to be introduced by appellant goes to the credibility and believability of appellant’s own testimony that he did not commit the acts charged and further speaks to the ultimate fact of whether appellant committed those acts. From the extensive testimony and cross-examination of the various witnesses at trial, the jury, without the help of expert opinion, could have determined the credibility and truthfulness of all the witnesses and could have formed independent opinions as to the victims’ truthfulness and the appellant’s capability of performing the acts he was accused of. These determinations did not involve ‘unique and mysterious areas of human response’ necessitating expert testimony. This enumeration is without merit.” Jennette, supra at 582-583.

Judgment affirmed.

Birdsong, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

The admissibility of evidence of independent transactions must be measured by a three-part test, not simply the “two-prong test” which did not include purpose. The similarity of the independent transaction to the incident on trial and the commonality of the perpetrator of the independent transaction to the defendant on trial are two prongs. But first the State must show that the evidence addresses “some appropriate purpose.” Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991). By purpose is meant that the evidence will shed light on some issue in the case, such as identity of the perpetrator or the perpetrator’s intent in committing the act. Johnson v. State, 199 Ga. App. 144 (404 SE2d 455) (1991) (Beasley, J., concurring specially).

Appellant does not challenge the evidence in this regard, even though the State did not designate and the court did not specifically charge the jury what issues existed in the case which would be served by this evidence. Before the testimony was given, the court charged that such evidence is admitted “solely and only under the provision of law that where knowledge, common design, modus operandi, motive, intent, good or bad faith, bent of mind, plan, scheme, course of conduct, identity or other matters dependent upon a person’s state of mind are involved as material elements in the offense . . . evidence of the defendant’s conduct with reference to similar transactions about the same time is admitted solely for the jury to consider only as it might tend to illustrate the defendant’s state of mind on the subject involved. ...”

Decided November 17, 1992 —

Reconsideration denied December 2, 1992

Pruitt & Britt, Glyndon C. Pruitt, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

In the final charge, the court essentially repeated the above but added that such evidence “is admitted solely for the jury to consider only as it might tend to illustrate the defendant’s state of mind on the subject involved, if you think it does so illustrate it, and for that purpose alone. You are not to consider it for any other purpose.”

This general and somewhat inconsistent charge does little to limit the jury’s consideration of the independent transaction evidence or to identify the contested issue in the case or the element of the crime which the evidence enlightens. Knowledge, good or bad faith, and identity were not issues, for example. On appeal, the state maintains that this evidence tends to establish appellant’s “bent of mind and course of conduct.”

But appellant does not target this aspect of the test of admissibility.. Instead, he argues that the two transactions are not sufficiently similar. With respect to that, I agree with the majority.

I concur in Division 2.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A92A1611.
    WEAVER v. THE STATE.
    (426 SE2d 41)
   Johnson, Judge.

Andre Lewis Weaver was convicted of possession of marijuana and two counts of sale of cocaine. He appeals from his convictions and the denial of his motion for a new trial.

1. Weaver contends that the trial court erred in denying his motion to sever the possession of marijuana charge from the two sale of cocaine charges. “Where the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying [the] motion for severance.” (Citations and punctuation omitted.) Carroll v. State, 199 Ga. App. 8, 10 (403 SE2d 875) (1991). The marijuana charge was based on marijuana found in Weaver’s possession at the time of his arrest for sale of cocaine. Evidence concerning the marijuana would have been admissible at the trial on the cocaine charges as a circumstance of his arrest. See Kennedy v. State, 199 Ga. App. 803 (1) (406 SE2d 136) (1991). The trial court did not err in denying Weaver’s motion for severance.

Decided November 23, 1992 —

Reconsideration denied December 2, 1992

Shandor S. Badaruddin, for appellant.

Lewis R. Slaton, District Attorney, Kenneth D. Feldman, Rebecca A. Keel, Assistant District Attorneys, for appellee.

2. Weaver’s contention that the trial court erred in excluding evidence of hearsay statements, made by a third party who died prior to trial, to the effect that the third party and not Weaver actually sold the cocaine, is without merit because such declarations are not admissible in favor of the accused at his trial. Huffman v. State, 257 Ga. 390, 392 (4) (359 SE2d 910) (1987); Timberlake v. State, 246 Ga. 488, 492 (1) (271 SE2d 792) (1980); Davis v. State, 194 Ga. App. 482, 484 (2) (391 SE2d 124) (1990). The trial court did not err in excluding the evidence.

3. In his third enumeration, Weaver contends that the trial court erred in allowing the state to present evidence of the sentences he received for his prior convictions. Weaver testified that he pled guilty to the prior offenses because he had in fact committed them. He further claimed that he pled not guilty in the instant case because he had not committed the offenses charged. The state attempted to impeach Weaver by showing that he pled guilty to the prior offenses and not guilty in the instant case because the sentences offered to him in the prior cases were more lenient than the sentence offered in this case. The trial court erred in admitting evidence of the prior sentences for this purpose. However, “[w]hile the better method would be not to admit the sentence in a prior offense where a similar transaction is involved, in the case sub judice it is ‘highly probable’ that the admission of the sentence did not contribute to the verdict. [Cit.]” Groble v. State, 192 Ga. App. 260 (2) (384 SE2d 281) (1989). The error was harmless.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A2043.
    THE STATE v. MEREDITH.
    (425 SE2d 681)
   McMurray, Presiding Judge.

Via accusation, filed in the Superior Court of Pike County on April 3, 1991, Stephen Troy Meredith was accused of driving a motor vehicle while under the influence of alcohol, driving a motor vehicle with an unlawful blood alcohol level, and driving a motor vehicle with a suspended driver’s license. The accusation alleged that these offenses occurred on December 18,1988. It went on to allege that “from August 11, 1989 to February 1990, [the offenses were] on appeal from the Probate Court of Pike County to the Superior Court of Pike County, and said appeal having been denied on February 20, 1990 and returned to said Probate Court and subsequently transferred to the Superior Court of Pike County on February 8, 1991.”

Defendant filed a plea in bar on the ground that the offenses in question occurred more than two years prior to the filing of the accusation. The court granted the plea in bar and the State appeals. Held:

OCGA § 17-3-1 (d) provides: “Prosecution for misdemeanors must be commenced within two years after the commission of the crime.” Obviously, the April 3, 1991, accusation was not brought within two years after the commission of the December 18, 1988, offenses. Accordingly, the prosecution was barred.

The State contends this case falls within an exception to the statute of limitation. We disagree. “[T]he burden is unquestionably upon the state to prove that a crime occurred within the statute of limitation, or, if an exception to the statute is alleged, to prove that the case properly falls within the exception. Williams v. State, 13 Ga. App. 338 (79 SE 207) (1913).” State v. Tuzman, 145 Ga. App. 481, 483 (3), 484 (243 SE2d 675). The State failed to prove that this case falls within any of the statutory exceptions to the limitation on prosecutions. See OCGA § 17-3-2. “[T]he pendency of an appeal is not among the exceptions provided by OCGA § 17-3-2 to the running of the period of limitation provided by OCGA § 17-3-1. . . .” Duncan v. State, 193 Ga. App. 793, 794 (389 SE2d 365).

The State contends that defendant was given three trafile citations when the offenses were committed, that the arresting officer signed the “arresting officers certification,” under oath, within the limitations period and that, therefore, the prosecution was not barred. We need not address this contention because it does not appear to have been raised in the superior- court. Powell v. State, 171 Ga. App. 876, 879 (2), 880 (321 SE2d 745); Craig v. State, 130 Ga. App. 689, 690 (3) (204 SE2d 307); Lundy v. State, 119 Ga. App. 585, 586 (1), 587 (168 SE2d 199); Nix v. State, 94 Ga. App. 141 (2) (93 SE2d 783). The appellant has the burden of showing error affirmatively by the record and the burden is not discharged by mere recitations in the brief. Whisenhunt v. State, 156 Ga. App. 583 (275 SE2d 82).

Decided December 2, 1992.

W. Fletcher Sams, District Attorney, Tarey B. Schell, Assistant District Attorney, for appellant.

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, Patricia A. Buttaro, for appellee.

Judgment affirmed.

Cooper, J., concurs. Sognier, C. J., concurs in the judgment only.


author: Carley, Presiding Judge.

text:
    A92A0902.
    BROOKER v. THE STATE.
    (426 SE2d 39)
   Carley, Presiding Judge.

After a bench trial, appellant was found guilty of speeding. He appeals from the judgment of conviction and sentence entered by the trial court on its finding of guilt.

1. Over objection, the trial court admitted evidence of speed obtained by use of a radar speed detection device operated by a Cobb County law enforcement officer. Appellant enumerates this ruling as error, contending that the State failed to lay a proper foundation for admission of the evidence in accordance with the requirements of OCGA § 40-14-1 et seq.

County, municipal, and campus law enforcement officers “may use speed detection devices only if the governing authorities of [their respective jurisdictions] . . . shall apply to the Department of Public Safety [(DPS)] for a permit to use such devices in accordance with [OCGA § 40-14-1 et seq.].” OCGA § 40-14-2 (a). In the instant case, the State submitted copies of DPS permits issued to the Cobb County Board of Commissioners “for the use of a speed detection device at [certain specifically] authorized location(s). . . .” These permits, to which no objection was raised, were signed by the Commissioner of DPS. The Commissioner of DPS is a public officer and is “presumed to discharge [his] duties properly, and [his signature] speak [s] with verity as to the same. [Cit.] Thus, the [DPS permits] are presumed to speak with verity. [Cit.]” Oller v. State, 187 Ga. App. 818, 820 (2) (371 SE2d 455) (1988). See also Mash v. State, 168 Ga. App. 491, 492 (2) (309 SE2d 673) (1983).

According to the DPS permits, the Cobb County Board of Commissioners had “submitted an application in proper form for a permit for the use of a speed detection device at [certain specified] location^). . . .” Thus, the DPS permits constitute presumptive evidence of compliance with OCGA § 40-14-3 (a), which provides: “The governing authority of any county . . . may apply to [DPS] for a permit to authorize the use of speed detection devices for purposes of traffic control within such counties ... on streets, roads, and highways, provided the . . . county . . . shall name the street or road on which the device is to be used and the speed limits on such street or road shall have been approved by the Division of Traffic Engineering and Safety of the Department of Transportation.”

The DPS permits also provide that the Cobb County Board of Commissioners had shown “compliance with all applicable laws, rules and regulations. ...” Thus, the DPS permits would likewise constitute presumptive evidence of compliance with that portion of OCGA § 40-14-4 which provides that “[n]o . . . county . . . law enforcement agency may use speed detection devices unless the agency possesses a license in compliance with Federal Communications Commission [(FCC)] rules. . . .” Appellant’s reliance upon Wiggins v. State, 249 Ga. 302, 304 (2) (290 SE2d 427) (1982) as authority for the proposition that the State must produce the actual FCC license is misplaced. The actual FCC license was produced in Wiggins, but the issue there was evidence of speed obtained by a radar speed detection device operated by a state law enforcement officer. Although a state law enforcement agency is required to obtain the same FCC license as a county law enforcement agency, it is not required to obtain the DPS permit that the county must secure pursuant to OCGA § 40-14-2 (a). Accordingly, in a case where the radar detection device was operated by a state officer, the DPS permit cannot be relied upon as presumptive evidence of “compliance with all applicable laws, rules and regulations,” including the requirement that an appropriate FCC license has been obtained by the state law enforcement agency. Because the instant case involves a radar detection device operated by a county officer, however, the DPS permit that was issued to the Cobb County Board of Commissioners “for the use of a speed detection device” can be relied upon as presumptive evidence of “compliance with all applicable laws, rules and regulations” regarding that use and, therefore, the actual FCC license need not be produced to demonstrate that compliance.

OCGA § 40-14-4 also requires that “each device, before being placed in service and annually after being placed in service, [be] certified for compliance by a technician possessing a certification as required by [DPS].” As in Wiggins, evidence of the manufacturer’s certification for accuracy was introduced in the instant case. Accordingly, here, as in Wiggins, supra at 306 (2c), the manufacturer’s certification serves “as a memorandum of the accuracy of the equipment ‘before being placed in service,’ a part of [the] requirement [of OCGA § 40-14-4]. [Cits.]” The “other part” of the requirement of OCGA § 40-14-4 regarding annual certification is inapplicable in the instant case because a year had not passed since this particular radar detection device had first been placed in service.

Decided November 20, 1992 —

Reconsideration denied December 3, 1992

Schreeder, Wheeler & Flint, J. Christopher Desmond, for appellant.

Patrick H. Head, Solicitor, Susan M. Miller, Assistant Solicitor, for appellee.

Moreover, the only issue in Wiggins was the admissibility of certain evidence to establish the foundation. Wiggins does not purport to establish the manner in which the foundation must be proved. Nothing in Wiggins suggests that compliance with the certification requirements of OCGA § 40-14-4 cannot be proved by reliance upon the evidentiary presumption “ ‘ “that a public officer has done his duty, and his official duties will be presumed to have been done rightly until the contrary is shown. (Cit.)” (Cit.) Accordingly, there [would appear to be] a presumption in this and in all other cases arising under (the relevant Code sections) that the [appropriate public official] has caused the instrument used to [detect speed by radar] to be checked ... for calibration.’ [Cits.]” Calloway v. State, 191 Ga. App. 383, 384 (1) (381 SE2d 598) (1989).

Appellant raises no other challenge to the sufficiency of the foundation laid for admission of the evidence. It follows that the trial court correctly overruled appellant’s objection to the introduction of evidence of speed obtained by use of a radar speed detection device.

2. A rational trior of fact could reasonably have found from the evidence adduced below proof of appellant’s guilt of exceeding the posted speed limit beyond a reasonable doubt. Brown v. State, 204 Ga. App. 629 (420 SE2d 35) (1992); Gray v. State, 156 Ga. App. 117, 118 (2) (274 SE2d 115) (1980). Accordingly, the general grounds are without merit.

Judgment affirmed.

Pope and Johnson, JJ., concur.


author: Beasley, Judge. Birdsong, Presiding Judge,

text:
    A92A0926.
    CALHOUN et al. v. PURVIS.
    (425 SE2d 901)
   Beasley, Judge.

Plaintiffs (husband and wife) appeal from a judgment entered on a jury verdict in favor of defendant in this negligence action involving an automobile collision.

Error is enumerated with respect to the trial court’s rejection of plaintiffs’ challenge to defendant’s alleged use of racially discriminatory peremptory challenges in this civil trial. Plaintiffs are black and defendant is white.

Although a transcript of the voir dire proceedings has not been transmitted to this court, the parties are in agreement as to what transpired during the jury selection process, with respect to the issues in this appeal. See Bannister v. State, 202 Ga. App. 762, 766 (1) (b) (415 SE2d 912) (1992), and cases cited; Court of Appeals Rule 15 (b) (1); OCGA § 24-4-24 (b) (7).

At 10:30 a.m. on Monday, December 2, 1991, a jury was qualified and impaneled to try the case in the superior court. The court announced that it would proceed with the selection of all juries needed that week so that those who were not selected could be released from service. The jurors selected to try this case were released until the following morning.

Prior to placing the jury in the box on the following morning, plaintiffs’ counsel moved the court to apply the procedures of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), contending that the defense had utilized its peremptory jury strikes in a racially discriminatory manner. Counsel cited Edmonson v. Leesville Concrete Co., 500 U. S__(111 SC 2077, 114 LE2d 660) (1991), a decision rendered approximately six months earlier, holding that courts must entertain a challenge to a private litigant’s racially discriminatory use of peremptory challenges in a civil trial. Although the trial court refused to apply such procedure in this civil trial, it did permit counsel to perfect the record with respect to his Batson/Edmonson challenge.

He did so via the testimony of the superior court clerk, who stated that the entire panel of jurors from which this jury was selected was comprised of 25 white persons and 7 black persons (a racial composition of 27 percent black members). It was shown that one black venire member was removed for cause due to the fact of his relationship to plaintiff within the prohibitions of OCGA § 15-12-135 (a). Thereafter, the defense utilized its six peremptory challenges to remove all remaining black members of the panel. The resulting jury of 12 was comprised solely of white persons.

The court acknowledged that had this been a criminal trial, plaintiffs had carried their burden under Batson of establishing a prima facie case of racial discrimination, which would shift the burden to the defense to offer race-neutral explanations for its peremptory challenges.

Defense counsel explained her reasons for striking each black juror. The first and second jurors were eliminated because both were friends of the plaintiffs and because Mr. Calhoun, an automobile mechanic, had worked on their cars. In addition, the second juror’s wife was Mrs. Calhoun’s employer. The third and fourth jurors were also friends of the plaintiffs. With respect to the last two strikes, counsel explained that the defendant “knew” the other remaining jurors and “felt comfortable about having people on the jury that he personally knew as opposed to two people he had never seen in his life.” Although defendant was not familiar with the two remaining black jurors, defense counsel was, and concurred with the client that “it would be better to strike them.”

Asserting that plaintiffs had been deprived of their right to have their case tried by a racially neutral jury and that defendant failed to provide a racially neutral explanation of the use of peremptory strikes, plaintiffs’ counsel requested that he be permitted to select another jury from a new panel of jurors. The court concluded, “I’m not ruling that they have adequately responded, I’m just going to rule that the [Batson/Edmonson] law doesn’t apply in civil cases in Georgia because it hasn’t been ruled on by the Supreme Court of Georgia ... I don’t know whether they’ve carried their burden or not, but I am going to deny your motion ... to get another panel of jurors . . . I’m just ruling at this point it doesn’t apply to civil cases.”

1. “[C]ourts must entertain a challenge to a private litigant’s racially discriminatory use of peremptory challenges in a civil trial.” Edmonson, supra, 114 LE2d at 680. Accord Strozier v. Clark, 206 Ga. App. 85 (424 SE2d 368) (1992). The trial court erred in failing to apply Edmonson and Batson to this civil trial.

2. Although defendant concedes the rule of Edmonson, he contends that plaintiffs’ failure to assert the challenge in a timely manner constituted a waiver.

In Batson, the Supreme Court “declined either ‘to formulate particular procedures to be followed upon a defendant’s timely objection to a prosecutor’s challenges,’ or to decide when an objection must be made to be timely.” Ford v. Georgia, 498 U. S. 411 (111 SC 850, 112 LE2d 935, 948) (1991). Edmonson similarly “le[ftj it to the trial courts in the first instance to develop evidentiary rules for implementing [that] decision.” Edmonson, supra, 114 LE2d at 680.

In implementing the holding in Batson, our Supreme Court declared that “any claim under Batson should be raised prior to the time the jurors selected to try the case are sworn. In this manner, the trial court will have an opportunity to determine whether there has been a violation of the defendant’s constitutional rights under Batson and, if so, to remedy that violation and proceed to the trial of the case.” State v. Sparks, 257 Ga. 97, 98 (355 SE2d 658) (1987). See also Greene v. State, 260 Ga. 472 (396 SE2d 901) (1990).

As discussed in Strozier, supra at (2), this procedure does not exactly fit the civil context because of the procedural differences in seating civil and criminal juries. Under OCGA § 15-12-139, a final oath is administered to the jurors selected to try a criminal case and a timely Batson challenge must be asserted prior to that occurrence. Greene, supra, 260 Ga. at 472 (1). In civil cases an oath is administered to each jury panel under OCGA § 15-12-138. Since this occurs prior to the final selection of jurors, a challenge at that time may be premature.

Defendant claims that plaintiffs waived their Edmonson claim by not asserting it at their “first opportunity,” which would have been at the conclusion of the final selection process and before the jury was excused. As in Sparks, supra, 257 Ga. at 98, we will not reject the Batson/Edmonson claim as untimely “because there have been no judicial guidelines regarding the time and manner in which such a claim is to be presented, and because [plaintiffs’] motion in this regard was made relatively promptly in the course of the proceedings. ...”

However, a challenge to the alleged use of racially discriminatory peremptory challenges in a civil trial under Edmonson should be raised no later than would preserve the opportunity to correct any violation without resetting the trial. In this case the latest time would have been before the jury selected and the jurors not selected were released.

3. Finally, plaintiffs contend they are entitled to a new trial because the court ruled neither on their challenge nor on the adequacy of defendant’s rebuttal.

Defendant contends that the explanation given for the exercise of his peremptory strikes was sufficient as a matter of law to defeat a Batson challenge. Alternatively, he suggests that we remand for a determination by the trial court of the sufficiency of its reasons.

“Even though there is some evidence of a neutral basis for some of the state’s peremptory strikes against blacks so as to support its explanation, we must remand the case for an evidentiary hearing and trial decision, as was done in Mincey [v. State, 180 Ga. App. 263 (349 SE2d 1) (1986), aff’d State v. Mincey, 256 Ga. 636 (353 SE2d 814) (1987)]; Sparks v. State, 180 Ga. App. 467 (349 SE2d 504 (1986) [aff’d State v. Sparks, 257 Ga. 97 (355 SE2d 658) (1987)]; and Wise v. State, 179 Ga. App. 115 (346 SE2d 393) (1986). One of the reasons is that the determination ordinarily must be made in the first instance by the trial court, which is much more aware than we are of the circumstances and the significance of factors bearing on the subtle issue of neutrality; it is properly the factfinder. Batson, supra.

“Another reason is that this is not a case where the issue may be decided as a matter of law one way or the other on the basis of what is in the record.” Powell v. State, 182 Ga. App. 123, 124 (2) (355 SE2d 72) (1987).

Assuming arguendo that defendant’s explanation for striking the first four jurors passed Batson scrutiny as a matter of law, it cannot be so said about the final two. Indeed, our Supreme Court has recently admonished that any explanations reflecting “ ‘stereotypical attitudes as to particular groups . . . should be given additional scrutiny by the trial court before they are found acceptable.’ ” Weems v. State, 262 Ga. 101, 103 (2) (b) (ii) (416 SE2d 84) (1992), citing Tharpe v. State, 262 Ga. 110, 112 (416 SE2d 78) (1992).

The case is remanded for consideration of plaintiffs’ Batson/Edmonson challenge, consistent with the above.

Judgment affirmed and case remanded for hearing.

Sognier, C. J., McMurray, P. J., Carley, P. J., Pope, Cooper, Andrews and Johnson, JJ., concur. Birdsong, P. J., concurs in part and dissents in part.

Birdsong, Presiding Judge,

concurring in part and dissenting in part.

I fully concur in Divisions 1 and 2. However, as to Division 3, I respectfully dissent.

Defendant contends the explanations given for the exercise of his peremptory strikes were sufficient as a matter of law to defeat a Bat-son challenge. I agree. Defendant has met the requirement to explain his exercise of peremptory challenges and to demonstrate that racially neutral criteria prompted the exercise of his peremptory challenges. See generally Gamble v. State, 257 Ga. 325 (2) (357 SE2d 792). The explanation tendered need not rise to the level of justifying exercise of a challenge for cause; a reasonable suspicion regarding a prospective juror’s impartiality or ability otherwise to render a fair verdict can justify the exercise of a peremptory strike. Hall v. State, 261 Ga. 778, 780 (2a) (415 SE2d 158). I do not find that any of the explanations offered by defendant were based in any manner upon “stereotypical attitudes as to particular groups,” which, of course, would perforce mandate additional scrutiny by the trial court under the precedent of Weems v. State, 262 Ga. 101, 103 (2) (b) (ii) (416 SE2d 84). The cases cited by the majority are factually distinguishable, including Powell v. State, 182 Ga. App. 123, 124 (2) (355 SE2d 72). Moreover, Powell does not preclude this court from determining Batson issues as a matter of law when, as here, it is appropriate to do so. Thus, the adequacy of a racially neutral explanation, like any other Batson issue (see United States v. Allison, 908 F2d 1531, 1536-1538 (11th Cir.)), can be resolved as a matter of law. The reasons posed in this case for the exercise of challenges are those reasons legitimately used every day in our courts by counsel for the challenge of jurors on non-racially biased grounds. In my view, referring this case for remand merely adds unnecessary burden on an already overtaxed judicial system. The attendant facts foretell but one inevitable conclusion — there was no Batson violation. When the posture of the proceedings is of this nature, we should decide the Batson issue at the appellate level so as to avoid the imposition on litigant’s additional attorney fees and related expenses, and to facilitate the interests of judicial economy.

Decided November 16, 1992 —

Reconsideration denied December 3, 1992

Charles R. Reddick, for appellants

Young, Clyatt, Turner, Thagard & Hoffman, F. Thomas Young, Sherry S. Harrell, George H. Wynn, for appellee.

       The parties do not agree on the order in which the six peremptory strikes were exercised; however, the order is of no consequence to our decision.


author: Sognier, Chief Judge.

text:
    A92A1165.
    HURSTON v. THE STATE.
    (426 SE2d 196)
   Sognier, Chief Judge.

Kenneth Hurston was indicted for murder and aggravated assault. His first trial ended in a mistrial in 1988 after the jury was unable to reach a verdict. Hurston was retried in 1990 and acquitted of murder and convicted of aggravated assault. He now appeals from the denial of his motion for new trial.

1. Appellant first contends that his plea in bar based on a claim of double jeopardy filed before the second trial should have been granted. Specifically, appellant maintains the mistrial should not have been entered in the absence of manifest necessity, and thus he was twice placed in jeopardy in violation of the federal and state constitutions.

Our review of the transcript of the first trial and the evidence adduced at the hearing on the plea in bar reveals that after two-and-one-half days of testimony, the jurors in the first trial deliberated twelve hours over two days, keeping the bailiff informed of the changes in their vote tallies over time. After the jurors informed the bailiff they were having difficulty reaching a verdict, the trial judge called them into the courtroom for consultation. The foreman reported that after extensive debate, “we are a divided jury.” The court then inquired whether any juror believed that continued deliberation would be useful, and upon receiving no response in the affirmative the court, sua sponte, declared a mistrial.

Given the constitutional right of a defendant to have his trial proceed to verdict once a jury has been impaneled, “the power of the trial judge to interrupt the proceedings on his own . . . motion by declaring a mistrial is subject to stringent limitations. . . . [R] etrial is permissible only if a manifest necessity existed for the declaration of the mistrial lest otherwise the end of public justice be defeated; the existence of ‘manifest necessity’ is to be determined by weighing the defendant’s right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances. [Cits ]” Jones v. State, 232 Ga. 324, 326-327 (206 SE2d 481) (1974). “Where the jury is hopelessly deadlocked, this constitutes manifest necessity for declaring a mistrial.” Glass v. State, 250 Ga. 736, 738 (2) (300 SE2d 812) (1983). “ ‘At what time and under what circumstances the court shall discharge the jury from the further consideration of a criminal case, is a question left [largely] to its own discretion.’ ” Hyde v. State, 196 Ga. 475, 478-479 (1) (26 SE2d 744) (1943).

After a careful review of the record, we cannot conclude that the grant of a mistrial in this case constituted an abuse of discretion. We do agree with appellant that the better practice is to consider carefully the factors listed in Thornton v. State, 145 Ga. App. 793, 795 (245 SE2d 22) (1978) before declaring a mistrial. However, we likewise recognize the reason for according great deference to a trial judge’s decision to declare a mistrial when the jury is deadlocked: “[i]f retrial of the defendant were barred whenever an appellate court views the ‘necessity’ for a mistrial differently from the trial judge, there would be a danger that the latter, cognizant of the serious societal consequences of . an erroneous ruling, would employ coercive means to break the apparent deadlock.” Arizona v. Washington, 434 U. S. 497, 509-510 (98 SC 824, 54 LE2d 717) (1978). Considering the trial judge’s knowledge of the evidence presented, the length of the jury’s deliberations, and the foreman’s statement concerning the jury’s status, we hold the trial judge did not err by concluding the jury was hopelessly deadlocked. See Glass, supra; see also Phillips v. State, 238 Ga. 632, 633-634 (235 SE2d 12) (1977); Orvis v. State, 237 Ga. 6, 7-10 (2) (226 SE2d 570) (1976). Accordingly, we will consider appellant’s enumerations of error concerning the second trial.

2. Appellant contends the trial court committed reversible error by communicating with the jury in the jury room outside the presence of him or his counsel. The transcript discloses that after the jury had deliberated almost nine hours over two days, the prosecutor learned that one of the jurors was a convicted felon whose rights had not been restored and thus was ineligible to serve on the jury. See Op. Atty. Gen. 83-33, p. 70 (1983). After announcing her intentions to counsel, the trial judge entered the jury room to instruct them to cease their deliberations until further notice. After extensive discussion between counsel and the court, the juror was removed from the panel and replaced by the alternate juror.

“The rule is well established in this state, that the defendant on trial must be present when the court takes any action materially affecting his case. [Cits.] This right is guaranteed to the accused by the fundamental law of this State, in order that he and his counsel may see to it that he has a fair and impartial trial and that nothing is done that would in any wise tend to his prejudice. Unquestionably the trial judge should not in any manner communicate with the jury about the case, in the absence of the accused and his counsel, pending the trial; and the better practice is for the judge to have no communication with the jury on any subject except through the medium of the sworn bailiff in charge of the jury; and the communication should be restricted, in the absence of the accused and his counsel, to matters relating to the comfort and convenience of the jury. There should be no communication which would tend in any manner to prejudice the accused . . . and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would be that it was prejudicial, and the accused would be entitled to another trial. [Cits.]” (Punctuation omitted.) Collins v. State, 191 Ga. App. 289, 290 (381 SE2d 430) (1989).

The trial court’s action clearly went against the “better practice” of communicating only through the bailiff or in the presence of the accused and his counsel, for the matter at issue did “materially affect” appellant’s case. See id. The question thus presented in this appeal is whether the judge’s direction to the jury was impermissibly prejudicial to appellant. The communication clearly was not a charge or recharge, for it did not inform the jury of the law to be applied in the case. See Stewart v. State, 165 Ga. App. 428, 430 (300 SE2d 331) (1983); compare Collins, supra at 289-291 (3). Nor did the communication constitute a substantive colloquy or formal discourse, see Stewart, supra, or a review of the trial testimony. Compare Watkins v. State, 237 Ga. 678, 680-681 (229 SE2d 465) (1976). Although the topic under discussion between the court and counsel certainly was material to appellant’s right to a fair trial, the jury was not informed of the substance of this discussion but was told only to cease deliberating until a problem could be resolved. The purpose of the court’s actions was to ensure the integrity of the proceedings, and nothing was said to the jury that could have undermined the inherent fairness of the trial or the rights of appellant. Under these circumstances, we are persuaded that the conversation was not prejudicial to appellant. See generally Watkins, supra at 681-682; Stewart, supra.

3. Appellant enumerates as error the trial court’s refusal to allow him to question Iliya Hurston, the assault victim and the State’s key witness, concerning criminal charges pending against him. When the State presented Hurston’s testimony, appellant made an offer of proof that the witness was under indictment for automobile theft and had been arrested on two counts of theft by receiving for which presentment was pending. Since the witness had testified that he had made no deals with the State, the trial court refused appellant’s request, made pursuant to Hines v. State, 249 Ga. 257, 259-260 (2) (290 SE2d 911) (1982), to interrogate the witness concerning these pending charges and any possible desire of the witness to receive favorable treatment from the State;

A criminal defendant’s right of confrontation includes the right to cross-examine a key State witness concerning pending criminal charges against the witness. Id. at 259. In addition to the general right to impeach the witness by proof of prior criminal convictions, the defendant is entitled to make “[a] more particular attack on the witness’ credibility ... by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness. . . . The partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of his testimony. . . . [E]xposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. It is especially important in a case where a witness . . . may have substantial reason to cooperate with the government that a defendant be permitted to search for an agreement between the government and the witness. Whether or not such a deal existed is not crucial. What counts is whether the witness may be shading his testimony in an effort to please the prosecution. A desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness, but such a subtle desire to assist the state nevertheless may cloud perception.” (Emphasis supplied; citations and punctuation omitted.) Id. at 260 (2).

While the trial court has discretion in determining the scope of cross-examination, the court’s refusal to permit any inquiry into Hurston’s pending criminal charges was an abuse of discretion and reversible error. Id.; see Owens v. State, 251 Ga. 313, 316-317 (1) (305 SE2d 102) (1983). Appellant clearly was entitled to question the witness concerning the pending charges and any possible desire on his part to influence their disposition by assisting the State in the presentation of the case against appellant. Contrary to the State’s contention on appeal, the refusal to permit any such inquiry is not harmless error, but “constitutional error of the first magnitude [that]' no amount of showing of want of prejudice would cure. . . . [Cit.]” (Punctuation omitted.) Hamilton v. State, 185 Ga. App. 536, 538 (1) (365 SE2d 120) (1988). Compare Shaw v. State, 201 Ga. App. 456 (411 SE2d 537) (1991) (refusal to permit defendant to question State’s witness on certain details of her sentence not reversible error where court had allowed extensive questioning concerning pending prosecution and plea agreement deal made with prosecution). The case cited by the State, Carmichael v. State, 260 Ga. 792-793 (2) (a) (399 SE2d 918) (1991), is inapplicable because the witness in that case had already been convicted and sentenced, thereby rendering moot the inquiry at issue, and because the defendant, unlike appellant in the instant case, did not seek at trial to make the inquiry into possible motive recognized in Hines. Accordingly, we reverse the judgment of conviction.

Decided November 23, 1992 —

Reconsideration denied December 3, 1992

4. Of appellant’s remaining enumerations, we will address the ones that may occur upon retrial.

(a) Regardless of whether the State’s direct evidence is again impeached upon retrial, because the State’s case rests in part on circumstantial evidence appellant would be entitled to a charge on circumstantial evidence if he so requests. Robinson v. State, 261 Ga. 698, 699-700 (410 SE2d 116) (1991). We do not agree with the State’s argument in its brief that Robinson overruled or superseded the principle, set forth in Horne v. State, 93 Ga. App. 345, 346 (4) (91 SE2d 824) (1956), that when the State’s evidence is impeached the court must charge on circumstantial evidence even absent a request. Instead, we read Robinson to mean that a charge on circumstantial evidence is authorized either under the circumstances presented in Horne or if the direct evidence is not impeached but the defendant requests the charge.

(b) Although appellant was indicted for committing aggravated assault with a deadly weapon, the court instructed the jury that aggravated assault also could be committed when a defendant “assaults another person with intent to murder, rape, or rob.” While the fact that the court instructed the jury on the specific charges set forth in the indictment probably avoided reversible error, see Ross v. State, 192 Ga. App. 65, 66 (2) (383 SE2d 627) (1989), upon retrial the charge should be limited to the manner alleged in the indictment. See Owens v. State, 173 Ga. App. 309, 312 (4) (326 SE2d 509) (1985).

Judgment reversed.

McMurray,.P. J., and Cooper, J., concur in the judgment only.

Jeanne Canavan, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Kenneth D. Feldman, Assistant District Attorneys, for appellee.

       Contrary to the State’s position, appellant preserved his right to raise this issue on appeal by contemporaneously objecting to the trial court’s action. See Seay v. State, 111 Ga. App. 22, 25 (3) (140 SE2d 283) (1965); compare Johnson v. State, 254 Ga. 591, 596-597 (5) (331 SE2d 578) (1985).


text:
    A92A1280.
    WATKINS v. THE STATE.
    (426 SE2d 26)
   Sognier, Chief Judge.

Calvin Watkins was convicted of possession of cocaine with intent to distribute. OCGA § 16-13-30 (b). Because it was Watkins’ second conviction for a crime set forth in that statute, he received a life sentence. Id. at (d). He appeals.

Appellant contends the trial court erred by denying his motion for a new trial made on the basis that he received ineffective assistance from his trial counsel, Terence Kelly. “ ‘Under the holding in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), there is a two-pronged test for determining the validity of a claim of ineffective assistance of counsel: whether (1) counsel’s performance was deficient; and whether (2) this deficiency prejudiced the defense (there is a reasonable possibility that the outcome of the proceedings would have been different, but for counsel’s deficiency). (Cit.)’ [Cit.]” Ruffin v. State, 201 Ga. App. 792 (2) (412 SE2d 850) (1991) .

1. Contrary to appellant’s assertion, Kelly’s post-judgment action in obtaining the trial court’s permission to withdraw as appellant’s counsel so that other counsel could be appointed to raise the issue of ineffective assistance of counsel did not indicate that Kelly himself acknowledged he rendered ineffective assistance at trial but instead showed that Kelly acted in accordance with his ethical responsibilities to his client and to the judicial process. See Castell v. Kemp, 254 Ga. 556 (331 SE2d 528) (1985).

2. The record fails to support appellant’s claim that there was a total failure of trial preparation so as to require a disposition of this case like that reached in Ross v. Kemp, 260 Ga. 312 (393 SE2d 244) (1990) and Cochran v. State, 262 Ga. 106, 107-108 (2) (414 SE2d 211) (1992) . The record reflects that Kelly filed his appearance on appellant’s behalf in June 1990, a month after appellant’s indictment and three months before trial; that Kelly filed numerous demands, requests, and discovery motions, including a motion challenging the constitutionality of the life sentence provision in OCGA § 16-13-30 (d); that Kelly submitted written requests to charge and filed a written motion requesting certain charges be given the jurors prior to the commencement of the case; that he moved for disclosure of impeaching evidence regarding appellant’s claim that the arresting officer had planted the contraband on him, thereby perfecting the record regarding the officer’s testimony on this issue; and that in addition to cross-examining the State’s witnesses and calling witnesses on appellant’s behalf, Kelly used a videotape of the arrest scene in conjunction with defense witnesses’ testimony to support appellant’s testimony and rebut the police officer’s testimony.

“In determining the effectiveness of counsel, the court looks to the totality of the representation provided by counsel. A defendant’s right to effective assistance of counsel does not guarantee errorless counsel or counsel judged ineffective by hindsight, but counsel likely to render and rendering reasonably effective assistance.” (Citations, punctuation, and emphasis omitted.) Penaranda v. State, 203 Ga. App. 740, 745 (417 SE2d 683) (1992). The trial court’s denial of appellant’s motion for a new trial made on the basis that he received ineffective assistance of counsel because of Kelly’s total failure to prepare for trial was not clearly erroneous and thus will not be reversed. Id.

3. The main thrust of appellant’s ineffectiveness claim involves Kelly’s failure to object at trial to the State’s introduction of appellant’s 1989 conviction for possession of cocaine with intent to distribute. Appellant’s 1989 conviction was introduced in the trial of the case sub judice as evidence of a similar transaction. The trial transcript reflects that after the officer who arrested appellant in 1989 testified regarding some of the circumstances surrounding the arrest, a certified copy of the 1989 indictment, plea, and conviction were tendered into evidence.

Appellant asserts that the 1989 conviction was unconstitutionally obtained because it resulted from his then-attorney’s deficient representation, specifically, counsel’s failure to file a motion to suppress, which appellant alleges would have been granted if filed because the police officer who arrested appellant lacked probable cause to stop and search him. Relying solely on the contention that he was unaware of his then-attorney’s alleged defective performance in failing to file the motion to suppress, appellant asserts his guilty plea was not knowingly and voluntarily entered. It is uncontroverted that appellant did not appeal his 1989 conviction, and that at the time of the motion for new trial, no state or federal application for a writ of habeas corpus had been filed to challenge that conviction.

The trial court in the case sub judice denied appellant’s motion for a new trial after conducting a hearing at which the trial court entertained evidence regarding the validity of the 1989 guilty plea over the State’s objections to appellant’s collateral attack on the earlier conviction. Because the manner in which the trial court dealt with appellant’s challenge to the 1989 conviction enables us to address the merits of his claim, we pretermit the issue whether evidence of similar transactions is subject to collateral attack in the manner proposed by appellant so as to call into question the deficiency of counsel’s performance when no objection to such evidence is raised.

Appellant’s testimony that he did not discuss a motion to suppress with his then-attorney, Bobby Wilson, was contradicted by Wilson, who testified at the hearing. Wilson explained that a motion to suppress was not filed because (1) the evidence disclosed by Wilson’s investigation of appellant’s case indicated the motion would not be successful and (2) a strategic decision was made by appellant and Wilson to accept the State’s plea bargain (which involved appellant serving one year in jail) in order to minimize the time appellant was incarcerated. As to the first reason, Wilson testified he was informed by the arresting officer that the officer would testify at the motion that he had stopped appellant after seeing him put into his pocket a substance which the officer in his experience had recognized as crack cocaine. As to the second reason, Wilson testified that this decision was made because appellant could not get a bond; had already spent a couple of months in jail; would have to wait several months more before a motion to suppress could be heard; and because the prosecutor intended to seek a greater sentence should the motion be denied and the case go to trial.

No evidence was adduced that rebutted Wilson’s testimony. Although appellant challenges Wilson’s testimony that the arresting officer saw him putting crack cocaine in his pocket, appellant did not call the officer to testify at the hearing despite being given the opportunity to do so. We find without merit appellant’s contention that either the police report of the 1989 arrest or the testimony of the arresting officer during the trial in the case sub judice, both of which contain no mention that the officer had recognized as cocaine the item appellant was seen placing in his pocket, rebuts Wilson’s testimony: the terse summary of the events surrounding appellant’s arrest in the police report did not purport to include all relevant evidence and the arresting officer’s testimony in the instant trial was adduced solely for purposes of establishing the similar nature of the transactions, not to prove probable cause for the earlier arrest.

Probable cause exists for a police officer to stop and arrest an individual who is seen by the officer to be in the possession of what the officer in his experience believes is an illegal substance. See OCGA § 17-4-20 (a); Corbitt v. State, 166 Ga. App. 311, 312 (1) (304 SE2d 123) (1983). Hence, based on the evidence Wilson’s investigation had disclosed regarding the existence of probable cause for the officer to stop and arrest appellant, it cannot be said that Wilson incorrectly ', concluded that a motion to suppress would be denied. Thus, Wilson’s failure to file the motion did not constitute deficient performance depriving appellant of effective assistance of counsel. See Ruffin, supra at 792-795 (2) (a) (where accused’s arrest and search were legal so that evidence uncovered in search was not subject to suppression, counsel’s failure to file motion to suppress did not meet test set forth in Strickland, supra).

Accordingly, because appellant’s arguments asserting the ineffectiveness of Wilson’s assistance in 1989 are without merit, appellant’s argument that he was prejudiced by that alleged ineffectiveness — i.e., appellant’s challenge to the voluntariness of his 1989 guilty plea and his claim that his trial counsel in the case sub judice rendered ineffective assistance by not objecting to the State’s subsequent use of that conviction — is likewise without merit. The trial court did not err by denying appellant’s motion. See generally Ruffin, supra.

4. Our holding in Division 3, supra, controls adversely to appellant his contentions that his counsel’s performance was deficient because counsel did not object to the State’s use of the 1989 conviction at his sentencing and that the trial court committed reversible error by considering that guilty plea in sentencing appellant. Compare Gadson v. State, 197 Ga. App. 315, 317-318 (4) (398 SE2d 409) (1990).

5. In two enumerations appellant asserts error in the trial court’s charge and claims his counsel’s performance was ineffective because he failed to preserve for appellate review his objections to the charge. We find no merit in either contention. To establish ineffective assistance of counsel, appellant was required to show that Kelly’s deficient performance prejudiced his defense. See Henderson v. State, 192 Ga. App. 750, 753 (386 SE2d 408) (1989). We do not agree with appellant that it was reversible error for the trial court to charge the jury the entirety of OCGA § 16-13-30 (b), since the trial court read the indictment to the jury and instructed the jury that appellant was on trial only for the charge of possession with intent to distribute in the indictment. See generally Ross v. State, 192 Ga. App. 65, 66 (2) (383 SE2d 627) (1989). Thus, Kelly’s failure to object to the trial court’s charge did not constitute ineffective assistance of counsel. See Norris v. State, 176 Ga. App. 164, 168 (6) (335 SE2d 611) (1985). Nor do we agree with appellant that it was reversible error for the trial court to fail to include in its charge a definition of “intent to distribute.” The transcript reveals that the trial court did charge the jury regarding intent and this court, in interpreting “distribute” in OCGA § 16-13-21 (11) for purposes of the Georgia Controlled Substances Act, OCGA § 16-13-20 et seq., has recognized that it possesses only the ordinary and common dictionary meaning. State v. Luster, 204 Ga. App. 156, 157-158 (419 SE2d 32) (1992). Terms of common usage and meaning need not be specifically defined in the charge to a jury. See Smith v. State, 249 Ga. 228, 229 (2) (290 SE2d 43) (1982) (“mitigation”); Anderson v. State, 226 Ga. 35, 36 (2) (172 SE2d 424) (1970) (“assault”). Compare Powers v. State, 150 Ga. App. 25, 26 (3) (256 SE2d 637) (1979) (“rape”). Accordingly, appellant cannot show that any inaction by Kelly regarding a charge defining “intent to distribute” prejudiced his defense, see Henderson, supra, and thus the trial court did not err by denying appellant’s motion for new trial. See generally id.

Decided November 17, 1992 —

Reconsideration denied December 3, 1992

Megan C. Devor'sey, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Grover W. Hudgins, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Cooper, J, concur.


author: Beasley, Judge.

text:
    A92A1089.
    SHELTON v. THE STATE.
    (426 SE2d 69)
   Beasley, Judge.

An alleged rape occurred on March 15, 1991. On March 15, GBI officers conducted a custodial interrogation of defendant in the presence of his attorney. Defendant refused to answer questions directly but did allow and instruct his attorney to provide information and certain items (clothing and samples of bodily substances) in defendant’s presence. The information was given orally. Three days later the attorney delivered a letter to the GBI, signed by him, which stated that it was “to correct misinformation which was given to you in the course of our conversations on Friday of last week.” It set out in detail the defendant’s version of the incident. The record does not contain a description of the content of the earlier verbal statement.

Just short of four weeks prior to the scheduled trial date, the State subpoenaed the attorney to appear and be sworn as a witness for the State. He moved to quash the subpoena as being in violation of OCGA § 24-9-25 and the federal and state constitutional guarantees of right to counsel. According to the trial court’s order on the matter, he added at the hearing, as a ground, the defendant’s right against compulsory self-incrimination under both constitutions.

At the hearing, the State limited the scope of its subpoena to cover only the authentication of the letter of March 18 and rebuttal testimony, in the event defendant testified inconsistently “with the verbal statement given by his attorney to the GBI agents.” The court allowed the subpoena to stand but ruled that defendant’s attorney could be called only to answer questions “regarding the authenticity of the . . . letter . . . and for the purpose of testifying in rebuttal to any inconsistent statements that the defendant may make in the event he testifies in his own defense.” The State acknowledges in its brief that this refers to inconsistencies between what the GBI testifies the attorney related during the interrogation and what the defendant, if he is a witness, testifies was related in his presence.

OCGA § 24-9-25 is not implicated, as the testimony to which the subpoena is limited would not relate to confidential communications but rather to information which defendant instructed his counsel to convey to third persons, the officers. As to this, defendant recognizes, as stated in his brief: “To the extent the defendant’s attorney, in the presence of the defendant and with his consent, disseminated information to the agents of the [GBI], there is no claim of privilege.” Defendant cites Riley v. State, 180 Ga. 869 (181 SE 154) (1935). That is correct, as “[c]ommunications made by a client to an attorney for the purpose of being imparted by him to others do not fall within the inhibitions of the law that render an attorney as a witness incompetent to testify to statements or disclosures made to him by his client.” Fowler v. Sheridan, 157 Ga. 271 (1) (121 SE 308) (1923); Riley, supra at 870 (1). Thus, he is competent to testify. See Washington v. Sullivan, 373 P2d 474, 476 (3) (Wash. 1962). Compare Gilbert v. State, 169 Ga. App. 383, 384 (1) (313 SE2d 107) (1984), where the State’s cross-examination of defendant’s prior counsel invaded the area of communications protected by the attorney-client privilege recognized in OCGA § 24-9-24 and protected by OCGA § 24-9-25.

Defendant does not otherwise challenge, in this effort to quash the subpoena, the admissibility of the oral statements; he challenges only the right of the State to compel his counsel to give rebuttal testimony about them. Is he, at this stage, compellable?

One of the authorities invoked by defendant below and here is the state constitution, which provides: “Every person charged with an offense against the laws of this state shall have the privilege and benefit of counsel;. . .” Ga. Const. 1983, Art. I, Sec. I, Par. XIV. We find no case in Georgia which addresses the clash presented here, between the right of defendant to the effective assistance of his chosen counsel and the interest of the State in its purported need for counsel’s testimony, where counsel is allegedly a material witness and the attorney-client privilege does not bar counsel’s testimony. Other courts have balanced these two interests. See, e.g., Washington v. Sullivan, supra, 373 P2d at 477 (5); United States v. Gomez, 584 FSupp. 1185, 1188 (1) (D.C.R.I. 1984).

It has been uniformly recognized by the courts which have been presented with the question, that requiring the defendant’s attorney to testify against him on a contested, material issue so diminishes the persuasive force of his advocacy on behalf of the defendant in the eyes of the jury that the defendant is denied his right to effective assistance of counsel. Williams v. District Court, 700 P2d 549, 555-556 (9) (Colo. 1985); Uptain v. United States, 692 F2d 8, 10 (1) (5th Cir. 1982); People v. Rodriquez, 171 Cal. Rptr. 798, 800 (3) (4th Dist. 1981); Missouri v. Reynolds, 564 SW2d 874 (2) (Mo. 1978); Ohio v. Livingston, 285 NE2d 75, 77 (1) (Ohio App. 1972); People v. Lathrom, 13 Cal. Rptr. 325 (88 ALR2d 785) (2d Dist. 1961). Compare United States v. Gomez, supra, 584 FSupp. at 1190 (3) (holding that counsel could continue to represent the defendant other than before the jury); Strong v. Indiana, 538 NE2d 924, 925-926 (1) (Ind. 1989) (allowing another attorney to represent the defendant while counsel was testifying outside the presence of the jury where the testimony did not provide evidence of any elements of the offense charged).

It has also been held that it is only where defense counsel’s testimony is both necessary and unobtainable from other sources that counsel may be called as a prosecution witness. Perez v. Florida, 474 S2d 398, 400 (2, 3) (Fla. App. 1985); United States v. Crockett, 506 F2d 759, 760-761 (1) (5th Cir. 1975); Washington v. Sullivan, supra, 373 P2d at 476-478 (4, 5); see also Williams v. District Court, supra (holding that the government must have a compelling need for counsel’s testimony).

“Balanced against [the defendant’s ‘right to complete and unhampered representation’] ... is the possibility that defense counsel’s testimony is necessary to the state’s case in the interest of justice and for the protection of the public.” Washington v. Sullivan, supra, 373 P2d at 477 (5). See United States v. Gomez, supra, 584 FSupp. at 1187-1188 (1).

The subpoena should have been quashed, as no need for the testimony to be compelled by it was shown. It commanded the presence of defense counsel at trial, under penalty for non-compliance, see OCGA § 24-10-20 et seq., but presence was already assured because he was representing defendant; the State did not have to require it.

This left the other command of the subpoena, that counsel be on call, first of all, to testify that the letter was authentic. But it was not shown that such testimony would be necessary. There was no indication that authenticity would be an issue when the document was offered in evidence, or that defendant would not stipulate to its authenticity. Defendant points out in his brief that counsel testified at the motion hearing that it was authentic, and that is not disputed. By the motion to quash, defendant expressly does not challenge the admissibility of the letter but only the means of authenticating it. Moreover, according to the court’s order, counsel delivered the letter, so the person to whom it was delivered can testify as to its source.

The second part of the “on call” aspect is whether counsel must come to trial subject to call by the State in rebuttal to testify contrary to any statements which defendant might make, inconsistent with the State’s evidence as to the custodial oral statements. The State’s subpoena is based on the totally unsupported premise that defendant will testify falsely, about a matter within the direct personal knowledge of his attorney. It is counsel’s duty to prevent defendant, if he can, from testifying falsely. If the defendant nevertheless testifies falsely regarding what information was given by counsel during the interrogation, counsel would be obligated to so advise the court and seek to withdraw or else be party to the fraud. See Stephenson v. State, 206 Ga. App. 273 (424 SE2d 816) (1992).

Decided December 3, 1992.

Donaldson & Bell, George P. Donaldson III, R. Ripley Bell, Jr., for appellant.

Britt R. Priddy, District Attorney, for appellee.

Since there is no indication that defendant will do so, the State has failed at this point to show any need to compel his counsel’s testimony. In the event it does become necessary and unobtainable from other sources, taking into account the availability of the officers to whom the oral statement was given, and that the attorney’s testimony would presumably only be corroborative, the court will have to weigh the competing interests. We will not render an advisory opinion. See Newsome v. Brown, 252 Ga. 421 (314 SE2d 225) (1984). It is clear, however, that counsel cannot be compelled to be a witness against his client to contradict him while representing him at trial. That would in effect leave defendant with no counsel and deprive him of his constitutional right to the effective assistance of counsel.

We do not reach the federal constitutional ground nor the constitutional self-incrimination grounds.

Judgment reversed.

Birdsong, P. J., and Andrews, J., concur.


author: Sognier, Chief Judge. McMurray, Presiding Judge,

text:
    A92A1297.
    A92A1298.
    MANUEL et al. v. KOONCE et al. ROWLAND v. KOONCE et al.
    (425 SE2d 921)
   Sognier, Chief Judge.

Plaintiffs, individually and/or in their representative capacities, brought wrongful death and personal injury suits against Scott Rowland; Rowland’s mother and stepfather, Joann and H. L. Manuel; Scott Steedley and his father, W. J. Steedley; and Huntley’s Jiffy Stores, Inc. and its employee Pamela Youmans. The trial court denied the motions for summary judgment filed by Rowland and the Manuels, and this court granted their applications for interlocutory appeal. The appeal by Huntley’s Jiffy Stores and Youmans was withdrawn with the permission of this court.

The record establishes that appellants Joann and H. L. Manuel went to Florida for a long weekend and for the first time ever left 16-year-old appellant Scott Rowland at home alone. On July 8, 1989, the Saturday the Manuels were away, Rowland either personally or through an intermediary purchased two cases (twenty-four bottles) of beer from Huntley’s Jiffy Stores and carried it to the Manuels’ home, where over the course of the evening it was consumed. Rowland’s girl friend, Darby Hester, asked her friend, Tina Dowling, who was with Scott Steedley in his Mazda truck, to take her to the Manuels’ home that evening. The evidence in the record conflicts whether the newcomers were invited, whether they were asked to leave, whether Steedley was inebriated before he arrived, and whether Steedley consumed any of Rowland’s beer at the party. It is uncontroverted that Dowling, not Steedley, was driving Steedley’s truck when she, Steedley, and Hester left the Manuels’ home. Dowling drove Hester home then went to her own home, drove the truck to a convenience store with Steedley to purchase snack food for him, and then returned to her home before she yielded control of the truck to Steedley. Shortly after leaving Dowling’s home, Steedley crashed his truck headlong into a seven-passenger van carrying fifteen people, including appellees and/or their decedents. Two adults and four minors in the van were killed; Steedley and eight persons in the van were injured.

1. In Case No. A92A1297, the Manuels contend the trial court erred by denying their motion for summary judgment. The evidence is uncontroverted that prior to the incident in issue, Rowland had never consumed any alcohol at the Manuels’ home, provided alcohol to others at the Manuels’ home, or hosted a gathering there at which Rowland’s friends or guests had provided any alcohol. It is uncontroverted that no alcohol was present in the home when the Manuels left and that before their departure they instructed Rowland not to have any “parties,” other than a slumber party with two or three of his male friends, and explicitly directed Rowland not to use or be involved in the use of alcohol during their absence. Ms. Manuel stated in her deposition that she considered the instructions to Rowland about no parties or alcohol to have been her “duty as a parent” and explained the need for those instructions “[b]ecause he’s a teenager and that’s what teenagers do when they get a chance to.” Although the Manuels left Rowland alone, the evidence reflects that they did so after contacting Rowland’s natural father and obtaining his agreement to “keep [an] eye out and check on” his son.

Construing conflicting evidence in favor of appellees as the nonmovants, see generally GMS Air &c. v. Dept. of Human Resources, 201 Ga. App. 136, 139 (410 SE2d 341) (1991), the only evidence regarding the Manuels’ knowledge of any prior involvement of Rowland with alcohol consisted of an incident that, according to Jay Smith, Rowland’s high school friend, occurred in the fall of 1988. Smith deposed that while Rowland was a passenger in Smith’s car, the police stopped Smith and discovered the two underage boys had been drinking. Smith deposed that both he and Rowland were fined and that their parents were summoned to the police station regarding the matter.

(a) We agree with the Manuels that to the extent appellees assert a claim against them under OCGA § 51-1-40, the trial court erred by denying the Manuels’ motion for summary judgment. The evidence is uncontroverted that the Manuels did not wilfully, knowingly, and unlawfully sell, furnish, or serve alcoholic beverages to Steedley, id. at (b), and that Rowland’s actions in regard to the alcoholic beverages at the Manuels’ home were “in the absence of and without the consent of” the Manuels. Id. at (d).

(b) Pretermitting the Manuels’ arguments that OCGA § 51-1-40 preempted appellees’ claims against them under a theory of negligent parental supervision, we find that the Manuels were entitled to summary judgment on that claim. “[T]he true test of parental negligence vel non is whether in the exercise of ordinary care [the parent] should have anticipated that harm would result from the unsupervised activities of the child and whether, if so, [the parent] exercised the proper degree of care to guard against this result. [Cit.]” Hill v. Morrison, 160 Ga. App. 151 (286 SE2d 467) (1981). Appellees present the ingenious argument that leaving a teenager unsupervised over a long weekend is equivalent to allowing a child (and all the child’s friends) unsupervised access to a dangerous instrumentality, i.e., alcohol. See, e.g., Saenz v. Andrus, 195 Ga. App. 431 (393 SE2d 724) (1990) (butcher knife); McBerry v. Ivie, 116 Ga. App. 808 (159 SE2d 108) (1967) (shotgun); Glean v. Smith, 116 Ga. App. 111 (156 SE2d 507) (1967) (loaded pistol). We agree with the Manuels, however, that they were entitled to summary judgment even if the “dangerous instrumentality” case law is applicable here. “In those cases in which the parent did not furnish the dangerous instrumentality but through negligence allowed access thereto to the child, the standard for imposing liability upon a parent is whether the parent knew of the child’s proclivity or propensity for the specific dangerous activity. If such knowledge cannot be shown on the part of [the parents], then liability cannot attach to [them], as a parent is not an insurer that the child will not harm another.” (Citations and punctuation omitted.) Saenz, supra at 433 (2).

The Manuels adduced evidence establishing that they neither knew nor should have known that Rowland had a propensity for making alcohol available to underage guests at their home during their absence. Although Smith’s testimony about the incident in which Rowland was found intoxicated in Smith’s car placed the Manuels on notice of Rowland’s personal propensity to consume alcohol away from his home, it did not place them on notice that Rowland had any propensity whatsoever to violate their explicit orders and furnish alcohol to others at the Manuels’ home. See Saenz, supra (knowledge that child threw pocketknife against wall did not equal knowledge of child’s propensity to throw butcher knives at others). Since the Manuels had no reason to anticipate that Rowland would violate their orders about alcohol and parties and furnish alcohol to other minors at their home during their absence, they had no duty to guard against it. Id. We do not agree with appellees’ contention that the Manuels’ order to Rowland not to have parties and alcohol at the home during their absence gives rise to an inference that the Manuels knew of Rowland’s propensity to engage in such activity. Even if such an inference is proper, it cannot rebut the Manuels’ positive and uncontradicted testimony to the contrary. See generally Mitchell v. Haygood’s Hauling &c., 194 Ga. App. 671, 672 (1) (391 SE2d 481) (1990).

We decline appellees’ invitation to follow the example of the New Jersey court in Morella v. Machu, 563 A2d 881 (N.J. Super. A. D. 1989), by concluding that legislation such as OCGA § 51-1-40 supports this court’s expansion of the common law to place a duty on parents, owed to the general public, “to exercise reasonable care to arrange for competent supervision of their teenagers while [parents are] out of the state on vacation.” Id. at 885.

2. In Case No. A92A1298, Rowland contends the trial court erred by denying his motion for summary judgment because the facts established uncontrovertedly that he is not liable to appellees on their claim arising under OCGA § 51-1-40 (b). We agree and reverse.

OCGA § 51-1-40 (b) provides in pertinent part that “a person who willfully, knowingly, and unlawfully sells, furnishes, or serves alcoholic beverages to a person who is not of lawful drinking age, knowing that such person will soon be driving a motor vehicle, . . . may become liable for injury or damage caused by or resulting from the intoxication of such minor . . . when the sale, furnishing, or serving is the proximate cause of such injury or damage.”

When the evidence is construed in favor of appellees, a fact question remains whether Rowland wilfully, knowingly, and unlawfully furnished alcohol to Steedley, a person not of lawful drinking age. The record contains circumstantial evidence not rebutted by any positive direct evidence from which a jury might find that Steedley imbibed alcohol furnished to him by Rowland.

However, liability under OCGA § 51-1-40 (b) also requires proof that the defendant served alcohol to a minor “knowing that [the minor] will soon be driving a motor vehicle.” “[Kjnowledge of imminent driving” is a prerequisite to liability under the statute. See Whelchel v. Laing Properties, 190 Ga. App. 182, 191 (1) (378 SE2d 478) (1989) (Beasley, J., concurring specially). Accord Southern Bell Tel. &c. Co. v. Altman, 183 Ga. App. 611, 612 (2) (356 SE2d 385) (1987) (interpreting Sutter v. Hutchings, 254 Ga. 194, 198 (327 SE2d 716) (1985), which set forth language virtually identical to that in OCGA § 51-1-40 (b)). The uncontroverted evidence of record established that Rowland accompanied Dowling, Steedley, and Hester to Steedley’s truck as they departed, and watched as Dowling, not Steedley, drove the truck away. Rowland asserted in both his affidavit and his deposition that he understood from Dowling that Steedley would not be driving and that Dowling had agreed to drive Steedley home. Although Dowling could not recall discussing the matter with Rowland, she deposed that she “took it upon [her]self” to drive because “after I noticed [Steedley’s intoxicated state] there was no way I’d let him drive.” Thus, in addition to the uncontroverted evidence that Steedley did not drive his truck upon departing Rowland’s party, the testimony of both Dowling and Rowland is in accord with Rowland’s position that he understood Dowling was not going to allow Steedley to drive his truck while intoxicated.

We do not agree with appellees that under this evidence a fact question exists whether it was reasonably foreseeable to Rowland that Steedley would “soon” be driving his truck. The actual knowledge Rowland possessed was that Steedley was not driving when he left the Manuels’ home. See Whelchel, supra at 185 (interpreting language in Sutter, supra). While Rowland could not know what actions Steedley would take once out of Rowland’s presence, there is no evidence to controvert Rowland’s testimony that in regard to Steedley’s future conduct, he believed Dowling would not allow Steedley to drive while intoxicated. Even accepting, arguendo, appellees’ argument that Rowland was required to prove the reasonableness of his belief that Steedley would not soon be driving, confirmation of that belief is present in the record both in the uncontroverted evidence of Dowling’s behavior at the scene (taking Steedley’s keys and assuming the task of driving his truck) and Dowling’s deposition testimony regarding her intention at that time not to allow Steedley to drive while intoxicated. No evidence was adduced in the record that indicates Rowland’s belief was not reasonable. See generally Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Under the position appellees take regarding the evidence necessary to prove lack of liability under OCGA § 51-1-40 (b), Rowland could prove he did not “know” Steedley would “soon” be driving only if Rowland proved he followed Steedley throughout the evening and made sure he did not drive at any point while intoxicated. Given that Rowland’s liability under OCGA § 51-1-40 (b) is premised explicitly upon his knowledge that Steedley would soon be driving, we reject appellees’ argument that a jury question exists unless Rowland proved he could not reasonably have foreseen that Steedley would later be driving. See Southern Bell, supra.

Under the undisputed facts of this case, as a matter of law Rowland satisfied the duty he owed to third parties under OCGA § 51-1-40 (b) not to furnish alcohol to a minor he knew would soon be driving a motor vehicle. We therefore hold that the trial court erred by denying Rowland’s motion for summary judgment. See id.

Judgment reversed.

Birdsong, P. J., Carley, P. J., Pope, Cooper, Andrews and Johnson, JJ., concur. McMurray, P. J., and Beasley, J., dissent.

McMurray, Presiding Judge,

dissenting.

In view of the principle that all legitimate inferences must be drawn in favor of the party resisting a motion for summary judgment, I must respectfully dissent. See Anderson v. Redwal Music Co., 122 Ga. App. 247, 249 (176 SE2d 645). In my view, genuine issues of material fact remain with regard to appellees’ claim of negligent parental supervision and with regard to appellees’ allegation that Rowland wilfully, knowingly and unlawfully served an alcoholic beverage (beer) to a person who was not of lawful drinking age.

1. “[T]he true test of parental negligence vel non is whether in the exercise of ordinary care [the parent] should have anticipated that harm would result from the unsupervised activities of the child and whether, if so, [the parent] exercised the proper degree of care to guard against this result. Muse v. Ozment, 152 Ga. App. 896 (264 SE2d 328) (1980).” Hill v. Morrison, 160 Ga. App. 151 (286 SE2d 467). In the case sub judice, the majority holds that no genuine issue of material fact remains with regard to the issue of negligent parental supervision, finding that the Manuels “neither knew nor should have known that Rowland had a propensity for making alcohol available to underage guests at their home during their absence.” In my view, there is evidence which reveals that the Manuels were aware of their child’s propensity to illegally share and consume alcohol with his teenage friends.

In his deposition, Rowland testified that he had been tried before a jury and convicted of an alcohol related offense and that he was on probation for this offense at the time the Manuels left him at home alone with permission to throw the unsupervised slumber party. Further, Jay Smith’s deposition testimony reveals that Rowland’s alcohol related conviction was not the only encounter Rowland had with law enforcement over the illegal use of alcohol before the unsupervised beer party of July 1989. Specifically, Smith testified that he and Rowland often shared in the purchase and consumption of alcohol; that they “started getting in trouble ...” for consuming alcohol when the boys first obtained access to an automobile and that “[t]he first occasion was when we got a minor drinking charge. Um, I was driving my car — I’d got a car by then [and] we got a minor drinking charge and our parents had to go to the jail and get us out. . . . We were driving, we got pulled over. I didn’t have any lights on, and we’d been drinking. . . .”

Rowland testified that the purchase' and consumption of alcohol with his friends was a common practice before the fatal collision; that it was then not uncommon for him to come home drunk; that he had a history of disciplinary suspensions from school prior to July 1989, and that before then he consumed illegal drugs (marijuana). Rowland also testified as to his parents’ cavalier attitude toward his illegal drinking activities, affirming that he was never disciplined “because of drinking before these events in July 1989[.]” It is my view, that this evidence and Rowland’s mother’s testimony that she instructed Rowland not to engage in drinking activities during the Manuels’ Florida vacation raises genuine issues of material fact regarding the Manuels’ knowledge of Rowland’s proclivity to engage in beer drinking activities with his friends. In other words, the circumstances of the case sub judice demand that a jury determine whether the Manuels should have, in the exercise of ordinary care, anticipated their son’s beer drinking slumber party and, if so, whether the Manuels exercised the proper degree of care in guarding against such dangerous conduct. See Hill v. Morrison, 160 Ga. App. 151, supra. I, therefore, do not adopt the majority’s characterization of appellees’ claim of parental negligence as “ingenious” or otherwise quixotic. On the contrary, it is my view that appellees’ theory of liability is consistent with Georgia’s long standing policy of parental liability in cases of parental indifference to a child’s proclivity or propensity toward specific dangerous conduct. See McBerry v. Ivie, 116 Ga. App. 808 (159 SE2d 108) (shotgun); Glean v. Smith, 116 Ga. App. 111 (156 SE2d 507) (pistol); Herrin v. Lamar, 106 Ga. App. 91 (126 SE2d 454) (rotary lawnmower); Faith v. Massengill, 104 Ga. App. 348 (121 SE2d 657) (BB gun); Davis v. Gavalas, 37 Ga. App. 242 (139 SE 577) (velocipede). To hold otherwise, ignores the fact that alcohol in the hands of a child is a dangerous instrumentality and is at least as dangerous as a child’s reckless use of a velocipede, a BB gun, a rotary lawnmower, a pistol or a shotgun.

Further, I do not think that recognition of parental liability in circumstances such as the case sub judice extends parental responsibility into the realm of impossibility. My view simply favors parental responsibility under circumstances where it is reasonably foreseeable that a child will engage in criminally dangerous conduct and where it is likely that the foreseeable conduct will harm others. To say less, licenses the demise of parental responsibility and fosters the view of Rowland’s mother, i.e., that teenagers will engage in illegal and dangerous activities “when they get a chance to.” It appears that similar views compelled a New Jersey appeals court to go even further, holding that “rational development of the common law in light of . . . declared legislative policyf, i.e., to discourage under-age drinking by placing more responsibility on adults,] requires parents to arrange for proper supervision of their teenagers when they are away from the home for a period of time during which spontaneous parties featuring alcoholic beverages are reasonably foreseeable. In default of the exercise of due care, they must answer in damages caused to innocent persons. See Macleary v. Hines, 817 F.2d 1081 (3rd Cir. 1987); Mitseff v. Wheeler, 38 Ohio St. 3d 112, 526 N.E.2d 798 (1988); Koback v. Crook, 123 Wis.2d 259, 366 N.W.2d 857 (1985), and Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983), all of which adopted the legislative standard of conduct relating to underage consumption of alcohol as applicable to tort liability. See Restatement, Torts, 2d § 286 at 25 (1965).” Morella v. Machu, 563 A2d 881, 884 (N.J. Super. A. D. 1989).

2. OCGA § 51-1-40 (b) provides, in pertinent part, that “a person who willfully, knowingly, and unlawfully sells, furnishes, or serves alcoholic beverages to a person who is not of lawful drinking age, knowing that such person will soon be driving a motor vehicle, . . . may become liable for injury or damage caused by or resulting from the intoxication of such minor . . . when the sale, furnishing, or serving is the proximate cause of such injury or damage.” In the case sub judice, the majority forecloses liability under this Code subsection because of undisputed evidence that Steedley did not drive his pickup truck upon leaving the party and because of Rowland’s self-serving testimony that Tina Dowling informed him that she would drive Steedley home. I cannot concur in this reasoning.

Decided December 3, 1992.

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Lloyd B. Hedrick, Jr., for appellants.

The Keenan Ashman Firm, Don C. Keenan, David S. Bills, for appellees.

The majority’s conclusion is based upon its construction of the language, “knowing that such person will soon be driving a motor vehicle.” Specifically, the majority assumes that this statutory language requires proof or disproof of a person’s knowledge of a future event. It is highly unlikely that any person can predict the future with absolute certainty. It is my view, that a more realistic reading of the above statutory language is whether a reasonable person, under the same or similar circumstances, would reasonably expect that “such person will soon be driving a motor vehicle.” In other words, the question of knowledge does not relate to duty, but to proximate cause. Thus, it is my view that in breaching the statutory duty of care by serving alcohol to Steedley, Rowland is subject to liability if it was reasonably foreseeable that Steedley would soon be driving. See Sagadin v. Boal, 221 Cal. Rptr. 675, 685 (3rd. Dist. 1985).

“[T]he duty upon the provider of alcohol is not merely to prevent the intoxicated driver from driving. The duty arises earlier. It is to stop serving alcohol to the driver who is noticeably intoxicated (or share the intoxicated driver’s liability to injured third persons).” Sutter v. Hutchings, 254 Ga. 194, 197 (4) (327 SE2d 716). In the case sub judice, there is evidence that Rowland was aware that Steedley drove his truck to the party; that beer was made available to Steedley at the party, and that Steedley became drunk after drinking beer at the party. This evidence raises genuine issues of material fact as to whether a reasonable person, under the same or similar circumstances, should have known that Steedley would soon be driving a motor vehicle.

       The majority also states that the weekend of the fatal collision was “the first time [the Manuels] ever left 16-year-old appellant Scott Rowland at home alone.” However, Jay Smith, one of Rowland’s teenage friends, testified that the weekend of the fatal accident was not the first weekend Rowland’s parents left Rowland at home alone. Smith explained that he often spent the night at Rowland’s house and that “on occasion [the Manuels would leave the boys unsupervised and] go out of town for a Braves game or something another like that.”

       Rowland testified that his conviction was the result of an illegal search of the trunk of his automobile while he and another teenage boy were dining at a Burger King restaurant. Rowland’s natural father, John Harvey Rowland, testified that his son’s alcohol related conviction was not justified, explaining that the alcohol found in Rowland’s possession belonged to Rowland’s teenage companion.

       Jay Smith affirmed Rowland’s admission that he often consumed alcohol with his friends, testifying that Rowland’s natural father threw an “end of the school year . . .” party for Rowland before the July 1989 collision; that minors consumed alcohol at this party and that it was common for Rowland to participate in such beer drinking activities.

         Tina Dowling testified that she does not recall informing Rowland that she was going to drive Steedley home. On the contrary, she testified that it was her idea to drive and that “Scott Rowland [had nothing] to do with the fact that [she] drove[.]” In fact, Darby Hester’s deposition testimony reveals that Rowland did not walk Steedley, Hester and Dowling to Steedley’s truck after the beer party to insure Steedley’s safe passage home. She testified that “Scott Rowland come outside [to tell] us ‘bye.’ ”