text:
    A99A1803.
    AMBROSE et al. v. SHEPPARD.
    (528 SE2d 282)
   Ellington, Judge.

Isaiah and Cynthia Ambrose appeal the grant of summary judgment to Larry G. Sheppard in this action against Sheppard and Gay Wood Company for property damage caused when Gay Wood Company cut timber on the Ambroses’ land. Because material issues of fact remain for jury resolution on the Ambroses’ promissory estoppel claim, we reverse.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” (Citation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review is de novo. Walker v. Virtual Packaging, LLC, 229 Ga. App. 124 (493 SE2d 551) (1997).

Pacrim Assoc. v. Turner Home Entertainment, 235 Ga. App. 761, 762 (510 SE2d 52) (1998).

Viewed in this light, the record reveals that Sheppard owned almost 1,300 acres of timberland in Monroe County. In November 1992, he conveyed the timber rights to about 600 acres of that land to Gay Wood Company. Seven months later, Sheppard sold 234 of those 600 acres to the Ambroses. The warranty deed to the Ambroses stated that the sale was subject to Gay Wood Company’s timber rights. At closing, Sheppard signed a document entitled “Agreement Concerning Pine Timber Removal, Rights and Duties.” In that agreement, Sheppard promised to “stand good for” Gay Wood Company’s “cutting and cleanup operations so as to insure that there is compliance with the Georgia Forestry Commission Best Management Practices.” He also promised to monitor the timber removal and to be “responsible for the performance in the event that there is any substandard compliance.” Sheppard admitted there was an “understanding” that he would monitor the timber harvesting, and he did, in fact, visit the property for that purpose. An affidavit by a representative of the Ambroses, John Ambrose, states that the “agreement was part and parcel of the entire transaction, and the transaction would not have closed and the property would not have been purchased if Sheppard had refused to execute the agreement.” The Ambroses contend that Gay Wood Company cut hardwoods and failed to leave standing the number and quality of pine trees as agreed. In September 1996, the Ambroses filed a complaint against Gay Wood Company and Sheppard. The trial court granted Sheppard’s motion for summary judgment without stating the basis for it.

Sheppard argues that because the Ambroses did not plead promissory estoppel in the complaint, they may not now pursue that cause of action. Although the Ambroses’ complaint does not contain a specific claim for promissory estoppel, Count 1 of the complaint does allege facts sufficient to put Sheppard on notice of such a claim. See Gosule v. Bestco, Inc., 227 Ga. App. 863, 866 (2) (a) (490 SE2d 532) (1997).

Decided January 18, 2000.

To survive summary judgment on their claim of promissory estoppel, the Ambroses were required to present evidence from which the jury could infer that (1) Sheppard made the Ambroses a promise; (2) that Sheppard expected the Ambroses to rely on that promise; (3) that the Ambroses did, in fact, rely upon it; and (4) that injustice may be avoided only by enforcing Sheppard’s promise. OCGA § 13-3-44 (a); Fidelity &c. Co. of Maryland v. West Point Constr. Co., 178 Ga. App. 578, 579 (1) (344 SE2d 268) (1986). In this case, there is evidence that Sheppard made his promise to monitor Gay Wood Company’s timber cutting and to “stand good for” its proper performance in order to induce the Ambroses to buy the land. The Supreme Court of Georgia has held that “[a]ny benefit accruing to him who makes the promise, or any loss, trouble, or disadvantage undergone by, or charge imposed upon, him to whom [a promise] is made, is sufficient consideration” to support enforcement of a promise under the doctrine of promissory estoppel. (Citations, punctuation and footnote omitted.) Pepsi Cola Bottling Co. v. First Nat. Bank &c., 248 Ga. 114, 116 (2) (281 SE2d 579) (1981). The benefit accruing to Sheppard by making the promise was being able to close the sale to the Ambroses. See id.; see also Fidelity &c. Co. of Maryland, 178 Ga. App. at 579-581 (1). Further,

[p]romissory estoppel requires only that the reliance by the injured party be reasonable. . . . [It] does not require that the injured party exhaust all other possible means of obtaining the benefit of the promise from any and all sources before being able to enforce the promise against the prom-isor.

(Footnote omitted; emphasis in original.) Wright v. Newman, 266 Ga. 519, 522 (467 SE2d 533) (1996) (Sears, J., concurring). A jury could conclude that the Ambroses were reasonable under the circumstances in relying on Sheppard to monitor the timber harvest. Questions of reasonable reliance are usually for the jury to resolve. Folks, Inc. v. Dobbs, 181 Ga. App. 311, 314 (2) (352 SE2d 212) (1986). Because jury issues remain on the Ambroses’ promissory estoppel claim, the grant of summary judgment to Sheppard on that claim must be reversed.

Judgment reversed.

Andrews, P. J., and Ruffin, J., concur.

W. Franklin Freeman, Jr., for appellants.

Lane & Jarriel, Walter J. Lane, Jr., for appellee.


source: Caselaw Access Project

author: Ellington, Judge.

license: Public Domain

text:
    A99A2363.
    GLASS v. GLOVER et al.
    (528 SE2d 262)
   Ellington, Judge.

In this land line dispute, the trial court imposed sanctions against Gloria Glass pursuant to OCGA § 9-15-14 (a) and (b) after she voluntarily dismissed her action against Nathan Glover, Sr., Ona Glover, Nathan Glover, Jr., and Linda Glover Brock. We granted Glass’s application for discretionary appeal under OCGA § 5-6-35 (a) (10) and, for the reasons which follow, reverse.

Glass contends that the award of attorney fees and expenses must be vacated because the Glovers did not assert their demand for fees and expenses under OCGA § 9-15-14 by motion, as is required, and because she had no notice of the hearing on the issue. We agree. The record shows that the Glovers never filed a separate motion seeking OCGA § 9-15-14 sanctions. The Glovers asserted their OCGA § 9-15-14 demand in their answer to Glass’s complaint. Specifically, the Glovers averred that Glass’s action had been brought “frivolously and without any viable, factual or legal basis and, therefore, pursuant to OCGA § 9-15-14, [they] respectfully requested] an award of attorney’s fees and costs.” They further averred that Glass and her husband had repeatedly filed frivolous lawsuits against adjoining landowners relating to boundary lines and should be subjected to OCGA § 9-15-14 penalties for their frivolous and repetitive litigation. In the joint pre-trial order, the Glovers reiterated that they were seeking damages for frivolous litigation pursuant to OCGA § 9-15-14.

The case was scheduled for a jury trial on April 12, 1999. Glass voluntarily dismissed her action on April 9, 1999. On April 12, 1999, finding that the Glovers’ “counterclaim” remained to be heard, the trial court conducted a hearing on the Glovers’ request for OCGA § 9-15-14 sanctions. The Glovers presented testimony and documentary evidence regarding Glass’s conduct and previous litigation but presented no evidence regarding the amount of attorney fees. On April 26, 1999, the trial court found that Glass’s action completely lacked any justiciable issue of law or fact and was brought without substantial justification. The trial court awarded the Glovers $9,720 in attorney fees and costs. Id.

OCGA § 9-15-14 (e) provides that attorney fees and expenses “may be requested by motion at any time during the course of the action but not later than 45 days after the final disposition of the action.” See Forest Lakes Home Owners Assn. v. Green Indus., 218 Ga. App. 890, 893-894 (2) (463 SE2d 723) (1995). The form required for motions is set out in OCGA § 9-11-7 (b) and Uniform Superior Court Rules 6.1 and 6.2; the Glovers’ defenses and prayer for relief in their answer do not meet the requirements of a motion. Howell v. Styles, 221 Ga. App. 781, 782 (1) (472 SE2d 548) (1996).

Decided January 18, 2000.

I. Kenneth Dious, for appellant.

Walter E. Van Heiningen, for appellees.

Because a request for attorney fees under OCGA § 9-15-14 must be brought in the form of a motion, a trial court may not entertain an OCGA § 9-15-14 request asserted only in the form of a counterclaim. Nuckols v. Nuckols, 226 Ga. App. 194 (486 SE2d 194) (1997). The Glovers cited no authority for their contention that the issue is only whether Glass and her counsel were placed on notice that the claim existed.

Under certain circumstances, motions may be made orally, OCGA § 9-11-7 (b), and the trial court may move on its own to impose sanctions under OCGA § 9-15-14 (b). Cagle v. Davis, 236 Ga. App. 657, 659 (2) (513 SE2d 16) (1999). We find no indication in the hearing transcript or the attorney fees order that a post-dismissal or sua sponte motion was before the trial court. Furthermore, even if the actions of the Glovers’ counsel or the trial court at the April 12,1999 hearing could be construed as a motion under OCGA § 9-15-14, the party against whom frivolous litigation sanctions are sought has a right to be heard before such sanctions are imposed. When a hearing is held on any motion, OCGA § 9-11-6 (d) requires notice of the hearing to be served on counsel, “if for no other reason than to avoid the appearance of ex parte contact.” Edens v. O’Connor, 238 Ga. App. 252 (1) (519 SE2d 691) (1999). Furthermore, “[a] party opposing a claim for attorney fees has a basic right to confront and challenge testimony as to the value and need for legal services.” Mitcham v. Blalock, 214 Ga. App. 29, 32-33 (2) (447 SE2d 83) (1994). Because the record does not show that Glass was afforded such an opportunity, the judgment must be reversed and remanded for further proceedings on the attorney fees issue. C. A. Gaslowitz & Assocs. v. ZML Promenade, 230 Ga. App. 405 (496 SE2d 470) (1998).

Judgment reversed and case remanded.

Andrews, P. J., and Ruf-fin, J., concur.


author: Johnson, Chief Judge.

text:
    A99A2386.
    LOWE v. BROOK PROPERTY, INC.
    (528 SE2d 284)
    Decided January 18, 2000.
    Annie Lowe, pro se.

      Russell D. Mays, for appellee.
   Johnson, Chief Judge.

This is an appeal from a dispossessory action in which the trial court ordered a writ of possession on behalf of Brook Property, Inc. and awarded Brook Property $700 in unpaid rent and court costs. While Annie Lowe’s pro se appellate brief describes the events leading up to the dispossessory as well as the actions taken by the trial court, it does not contest any ruling of the trial court. Lowe merely asks that we reconsider the decision made by Brook Property to refuse acceptance of her late rent. Since we are a court of law for the correction of legal errors committed by the trial court, Lowe’s factual assertion presents nothing for review. Moreover, while a bench trial regarding the dispossessory was held, Lowe has failed to provide this Court with a transcript of the proceedings. Accordingly, we must assume that the trial court’s judgment below was correct and affirm. Consequently, we hereby affirm the trial court’s order and judgment granting Brook Property a writ of possession and awarding it $700 in unpaid rent plus court costs.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

        Colley v. State, 225 Ga. App. 198, 201 (3) (483 SE2d 355) (1997); Ramsay v. State, 220 Ga. App. 618, 626 (15) (469 SE2d 814) (1996).

        Deen v. United Dominion Realty Trust, 218 Ga. App. 443, 444 (1) (462 SE2d 384) (1995); Prada v. Administrator, Small Business Admin., 208 Ga. App. 710 (432 SE2d 274) (1993).


text:
    A99A2500.
    THE STATE v. BLOODSWORTH.
    (528 SE2d 285)
   Ellington, Judge.

The State appeals the trial court’s grant of defendant Joseph Heath Bloodsworth’s motion for discharge and acquittal pursuant to OCGA § 17-7-170 (b). See OCGA § 5-7-1; State v. Benton, 246 Ga. 132 (269 SE2d 470) (1980). The trial court found that the State failed to timely try Bloodsworth following the filing of his demand for a speedy trial. Because Bloodsworth’s demand was premature and a nullity, we reverse.

On August 11, 1998, a Gwinnett County police officer cited Bloodsworth for DUI and leaving the roadway. According to Bloods-worth’s citations and the property bond sheet, he was notified to appear in the Gwinnett County Recorder’s Court on October 6, 1998. There is no evidence, however, that the citations were actually filed with the clerk of that court because no file stamp from that court appears on them. On October 2, 1998, Bloodsworth filed in the recorder’s court a demand for a jury trial and a waiver of arraignment. There is no evidence that Bloodsworth ever physically appeared in court. Because the Gwinnett County Recorder’s Court does not impanel juries, the clerk of that court on October 5, 1998, advised Bloodsworth to disregard any pending court hearings scheduled and informed him that his case was transferred to the Gwinnett County State Court and that he would receive “notification from the Office of the State Court Solicitor.”

On November 10, 1998, Bloodsworth, listing his citation numbers as accusation numbers, filed a demand for a speedy trial with the Gwinnett County State Court. Because neither the citations nor an accusation had been filed in the Gwinnett County State Court, the clerk of that court gave the demand a temporary file number, 98-D-5035-3. On January 15, 1999, the solicitor filed a three-count accusation against Bloodsworth, and the clerk assigned it accusation no. 99-D-0320-1. The clerk also on that date stamped as filed the citations. On March 5, 1999, Bloodsworth filed a motion to acquit pursuant to OCGA § 17-7-170 (b). Finding that the State failed to bring Bloods-worth to trial during the term in which the demand was made or at the next regularly succeeding term of court, the trial court granted Bloodsworth’s motion and ordered him discharged and acquitted.

The State argues that Bloodsworth’s demand was premature because it was filed before the solicitor filed the accusation and citations with the Gwinnett County State Court clerk.

Pursuant to OCGA § 17-7-170,

[a]ny person against whom a true bill of indictment or an accusation is filed with the clerk for an offense not affecting his life may enter a demand for trial at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter; or by special permission of the court, he may at any subsequent court term thereafter demand a trial. ... If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.

Decided January 18, 2000.

Gerald N. Blaney, Jr., Solicitor, Jeffrey P. Kwiatkowski, Assistant Solicitor, for appellant.

Raymond J. O’Reilly, for appellee.

OCGA § 17-7-170 (a), (b); see also State v. Gerbert, 267 Ga. 169, 170 (475 SE2d 621) (1996). “It is well settled in Georgia law that the protection conferred by OCGA § 17-7-170 attaches with the formal indictment or accusation.” (Punctuation omitted.) Tyler v. State, 224 Ga. App. 550, 551 (481 SE2d 228) (1997). The clock starts running on the time for the accused to make a speedy trial demand on the date an accusation or indictment is filed with the clerk of court. OCGA § 17-7-170 (a); Parks v. State, 239 Ga. App. 333, 334 (521 SE2d 370) (1999); Jackson v. State, 231 Ga. App. 187-188 (1) (498 SE2d 780) (1998). In cases involving traffic offenses, a uniform traffic citation may function as an accusation, without the necessity of filing an additional, formal accusation. OCGA § 40-13-1; Hayek v. State, 269 Ga. 728, 729 (2) (506 SE2d 372) (1998); Smith v. State, 207 Ga. App. 762, 763 (429 SE2d 149) (1993). Thus, “the statutory right to demand a speedy trial of a traffic offense in state court attaches when the uniform traffic citation is filed with the court.” State v. Gerbert, 267 Ga. at 170; Parks v. State, 239 Ga. App. at 334; Shire v. State, 225 Ga. App. 306, 308-309 (1) (b) (483 SE2d 694) (1997).

The record reveals that Bloodsworth’s demand was filed before the solicitor filed the accusation and before the citations were filed. Therefore, the demand is premature and a nullity. State v. Gerbert, 267 Ga. at 170; Ellsworth v. State, 232 Ga. App. 164, 165 (500 SE2d 642) (1998); Millan v. State, 231 Ga. App. 121-122 (497 SE2d 664) (1998); Meservey v. State, 230 Ga. App. 382, 383 (496 SE2d 518) (1998). A premature demand is not resuscitated when the formal accusation or citation is filed. Meservey v. State, 230 Ga. App. at 383. Because the demand was a nullity, the trial court erred in granting Bloodsworth’s motion for discharge and acquittal pursuant to OCGA § 17-7-170 (b).

Judgment reversed.

Andrews, P. J., and Ruffin, J., concur.


text:
    A00A0189.
    A00A0190.
    BEARDEN v. THE STATE. JABLONOWSKI v. THE STATE.
    (528 SE2d 275)
   Johnson, Chief Judge.

Joshua Bearden and co-defendant Michael Jablonowski were both convicted in superior court of armed robbery. Both contend the evidence was insufficient to support their convictions and that the trial court erred in not transferring the cases to juvenile court. In addition, Jablonowski contends the trial court erred in failing to grant a continuance so that he could obtain hired counsel. For purposes of appeal, we will consider these cases together.

1. Viewed in a light most favorable to support the verdict, the evidence shows that two men dressed in black clothing with stockings on their heads entered the victims’ home. One man wore a camouflage hat with a brim, and the other wore a baseball cap. The man later identified as Jablonowski was yelling and asking for money. The man later identified as Bearden stood by the door, pointing the gun at the victims. The victims had no money, but the men took one of the victims’ wallets and ran out the door.

Four days later, officers received information from a man who was repossessing a car in the victims’ neighborhood. The officers were given the defendants’ first names. A few hours later, officers received a call from another individual who gave them the defendants’ fall names.

Officers interviewed Jablonowski at his home. Initially, he denied involvement and told officers he had been with his girlfriend at the time the crime was committed. However, the girlfriend’s story was different from Jablonowski’s claims. After confronting Jablonow-ski with the discrepancies, the officers concluded the interview. Later that evening, Jablonowski’s mother called and set up an interview for the following day. After being given his Miranda warnings, Jablo-nowski was interviewed with his mother present. During the interview, he admitted his involvement in the robbery and described how it was done. The officers also interviewed Bearden with his father present after giving him his Miranda warnings, and he admitted his involvement.

After the interviews, officers searched the house where both Bearden and Jablonowski were staying at the time of the armed robbery. Officers discovered the rifle used during the armed robbery, boots that matched the tread pattern of the footprint found at the victims’ house, and black clothing identified by the defendants as what they had worn during the robbery. Officers also observed a footprint on the door of Bearden and Jablonowski’s residence that matched the one found at the scene of the robbery.

At trial, both Bearden and Jablonowski confessed on the witness stand to having committed the armed robbery. They also testified regarding their use of the rifle to commit the robbery. Clearly the evidence was sufficient for a rational trier of fact to find Bearden and Jablonowski guilty beyond a reasonable doubt of armed robbery.

Bearden contends the evidence was insufficient because his statement to officers was not voluntary and should not have been admitted. However, we need not address the merits of this argument because both Bearden and Jablonowski confessed to the crime at trial and gave details regarding the crime. Because Bearden’s statement to officers was merely cumulative of his own trial testimony and his co-defendant’s trial testimony, any error in admitting evidence of his custodial statement was harmless. In this case, the overwhelming evidence of Bearden’s guilt negates the possibility that any error which may have occurred regarding the admission of his statement contributed to the guilty verdict.

Jablonowski contends he should have been convicted only of robbery by intimidation. However, the testimony of the victims, Bearden, and Jablonowski shows that a rifle was used to accomplish the robbery. Thus, Jablonowski’s claim lacks merit.

2. The trial court did not err in refusing to transfer the cases to juvenile court. At the time of the armed robbery, Bearden was 16 years old and Jablonowski was 15 years old. The superior court has exclusive jurisdiction over the trial of any person 13 to 17 years of age who is alleged to have committed armed robbery with a firearm. Because this case involved the use of a rifle, it clearly falls within the superior court’s exclusive jurisdiction.

3. Jablonowski contends the trial court erred in failing to grant him a continuance so that he could obtain hired counsel to represent him at trial. We disagree because the record shows that Jablonowski did not exercise due diligence to retain counsel.

Motions for continuance based on insufficient time to hire or substitute counsel are addressed to the sound discretion of the trial judge, and the trial judge’s ruling will not be overturned absent an abuse of discretion. In addition, the trial judge may consider the conduct of a party in order to prevent a party from using the discharge and employment of counsel as a dilatory tactic. The party requesting the continuance must show that he exercised due diligence.

Decided January 18, 2000.

Rodney L. Mathis, for appellant (case no. A00A0189).

William R. Thompson, Jr., for appellant (case no. A00A0190).

T. Joseph Campbell, District Attorney, Rebecca B. Paris, Assistant District Attorney, for appellee.

As Jablonowski’s appellate brief indicates:

Trial counsel had been appointed substantially prior to the trial in question and no previous attempts had been made to hire counsel or substitute counsel prior to trial. According to the statements of [Jablonowski’s mother], she had only made an attempt to try and obtain counsel beginning on the Saturday prior to the Monday trial date. . . .

Nonetheless, Jablonowski contends his request for a continuance should have been granted merely because his mother indicated that she was not attempting to delay the impending trial. The trial court is not bound to accept such a conclusory statement. Moreover, Jablo-nowski has not suggested any evidence or any matter whatsoever which he could have presented in his defense if he had had more time to prepare. We cannot say that the trial court erred in denying a continuance when Jablonowski made no attempt to hire counsel until the weekend before his scheduled trial.

Judgments affirmed.

McMurray, P. J., and Phipps, J., concur.

       See Harris v. State, 238 Ga. App. 817 (520 SE2d 496) (1999).

       See Burnham v. State, 265 Ga. 129, 134 (6) (453 SE2d 449) (1995); Manchester v. State, 226 Ga. App. 653, 656 (3) (487 SE2d 449) (1997); Pierce v. State, 209 Ga. App. 366, 367 (1) (433 SE2d 641) (1993).

       See Dukes v. State, 224 Ga. App. 305, 308 (2) (480 SE2d 340) (1997).

       OCGA § 15-11-5 (b) (2) (A) (vii); State v. Watson, 239 Ga. App. 482, 483, n. 1 (520 SE2d 911) (1999).

       See Bennett v. State, 186 Ga. App. 832 (2) (368 SE2d 789) (1988); Beard v. State, 178 Ga. App. 265 (1) (342 SE2d 751) (1986).

       See Marion v. State, 224 Ga. App. 413, 414 (1) (480 SE2d 869) (1997).

       Id.

       See Warren v. State, 232 Ga. App. 488, 490 (3) (a) (502 SE2d 336) (1998).


author: McMurray, Presiding Judge.

text:
    A00A0519.
    SILCOX v. THE STATE.
    (528 SE2d 271)
   McMurray, Presiding Judge.

A Murray County jury convicted defendant of two counts of child molestation.* The trial court denied his motion for new trial, as amended. He now appeals, contending he received ineffective assistance of counsel for counsel’s failure to: (a) prepare for trial by investigating the crime scene and interviewing witnesses whose names had been furnished by defendant and his wife, (b) introduce evidence of a negative rape kit test, (c) object to the testimony of the State’s witnesses as to what they had been told by the victim, and (d) call witnesses other than the defendant. Held:

As to each claim of ineffectiveness, defendant has not established that his counsel’s performance was deficient and that the deficient performance prejudiced his defense depriving him of a fair trial. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674); see Slade v. State, 270 Ga. 305, 308 (2) (509 SE2d 618); see also Stephens v. State, 265 Ga. 120, 122 (2) (453 SE2d 443).

(a) Deficiency by counsel for failure to prepare for trial has not been established where, as here, the record reflects that counsel met with defendant and his wife before trial to discuss the case, learning, among other things, the layout of the house; that counsel reviewed the State’s case file in response to his request for discovery; that counsel reviewed the Department of Family & Children Services documents filed with the trial court in the case; and that counsel interviewed the witnesses suggested to him by the defendant as well as attorneys involved in an earlier juvenile court proceeding relating to the same incidents in preparing to represent the defendant.

(b) Failing to introduce evidence of a negative rape kit test was not deficient in that the testimony of other witnesses established that neither seminal fluid nor spermatozoa were found on the victim.

(c) Failing to object to the testimony of the State’s witnesses as to what the victim told them was not deficient in that these statements would have been admissible under the Child Hearsay Statute in that the victim, age ten, was a witness at trial whom the defendant cross-examined. OCGA § 24-3-16. Knight v. State, 210 Ga. App. 228, 230 (3) (435 SE2d 682) (“The rule, of necessity may be satisfied not only by showing that the declarant is not available for trial, but alternatively by producing the declarant at trial available to testify. [Cits.]”); accord Guest v. State, 216 Ga. App. 457, 459 (3) (454 SE2d 622). Moreover, deciding what evidence to present “is a matter of trial strategy and tactics, and tactical errors do not constitute ineffective assistance of counsel. [Cit.]” Bradford v. State, 221 Ga. App. 232, 235 (3) (a) (471 SE2d 248).

(d) Finally, counsel was not deficient for limiting defense witnesses to the defendant alone. At the hearing on the motion for new trial, counsel testified he did not call defendant’s wife as a witness at the request of defendant and his wife in that she had been molested as a child. In other testimony, counsel indicated that to have called other witnesses would have been cumulative or not worth losing closing argument. Declining to present evidence (other than the defendant’s own testimony) so as to preserve the final word in closing argument is a well-recognized trial tactic. Williams v. State, 265 Ga. 681, 682 (1) (461 SE2d 530); Sewell v. State, 229 Ga. App. 685, 689 (1) (e) (494 SE2d 512); Boone v. State, 224 Ga. App. 563 (1) (481 SE2d 569); Keanum v. State, 212 Ga. App. 662, 664 (3) (442 SE2d 790); Avans v. State, 207 Ga. App. 329, 330 (2) (427 SE2d 826).

Decided January 18, 2000

Millard G. Gouge, for appellant.

Kermit N. McManus, District Attorney, Stephen E. Spencer, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       The crimes occurred in June and July 1995. A grand jury indicted defendant on two counts of child molestation on March 13, 1996. Following a jury trial, defendant was found guilty of both counts on June 27, 1996, and sentenced to 15 years confinement on Count 1 and 20 years confinement on Count 2 to be served on probation concurrent with his sentence to confinement as to Count 1. Defendant filed a motion for new trial on August 30, 1996, which counsel amended on May 25, 1999. On June 18, 1999, the State’s attorney filed a motion for more specifics regarding defendant’s first amendment to the motion for new trial. The trial court denied defendant’s motion for new trial, as amended, on July 16, 1999, and defendant filed a notice of appeal to this Court on August 25, 1999.


author: Eldridge, Judge.

text:
    A99A2450.
    WOODWARD v. GRAY et al.
    (527 SE2d 595)
   Eldridge, Judge.

Rosaline Ogletree Woodward sued Officer Elaine Gray and her employer, Columbus, Georgia, for arresting her without probable cause for disorderly conduct, giving rise to claims under OCGA §§ 51-7-1, 51-7-20, 51-7-22, 51-7-40 and 51-7-41, assault and battery, and 42 USC § 1983. Woodward’s alleged disorderly conduct consisted of standing eight feet from Officer Gray in the street across from her mother’s home for several minutes and yelling in a loud voice that Gray was harassing people without reason when she arrested her brothers and put them in handcuffs; Woodward refused to leave the area on command by Officer Gray as obstruction of Gray’s performance of her duty and Woodward argued with Officer Gray over leaving, because it was her mother’s house. Specifically, Woodward yelled loudly in front of a crowd “that was her brother [being arrested]; that she didn’t have to go any fucking where”; “you can’t tell me what to do[; t]his is public property[;] I pay your fucking salary[; y]ou don’t have to, and the hell with you[; t]his is public property[;] I don’t have to leave this street [;] I can come over here and find out what’s going on.”

Being obnoxious, loud, arguing with the police, and refusing to move more than eight feet from the police on command where such distance does not interfere with the performance of police duties does not constitute probable cause to believe that disorderly conduct has occurred. Conduct that does not rise to actual interference or obstructing a police officer does not constitute disorderly conduct under the Columbus ordinance, although the Columbus Police Department uses such facts and circumstances as a lesser violation for less blatant conduct for arguing with the police or refusing to obey an officer.

However, as misguided as such interpretation of the law is, the arrest under the facts of this case did not give rise to a civil cause of action for damages, either under Georgia or federal law. The Columbus ordinance, § 14-62.2 (a), reads in pertinent part:

A person may be charged with, and convicted of, the offense of disorderly conduct when such person commits any of the following acts: (1) Performs an unlawful act of violence or performs any other act in such a violent and tumultuous manner that the public peace and tranquility [are] disturbed; (2) Verbally or physically harasses, menaces, or intimidates a person to the disturbance of the public peace; ... (5) Without provocation, uses to, or of another, in that person’s presence, opprobrious, abusive, or obscene words which, by their very utterance!,] tend to incite a person to an immediate breach of the peace.

A drug sting operation in a high drug traffic area of Columbus was set in motion without adequate planning, coordination, communications, and control being incorporated into the plan, because there was no signal or method of communication by which the undercover officer could indicate to the backup officers that a sale or attempted purchase had occurred, instead of an innocent citizen contact with the officer. Officer Lighting, security guard at Carver High School, acted as a decoy, but Bradley Ogletree, a teacher and coach at Carver High who was on his way to see his sick mother around the comer, stopped to speak to Lighting and shook his hand. Officer Joe Goodwin, another undercover officer, saw the physical contact but observed no exchange of money or drugs. Nevertheless, Goodwin erroneously alerted the two backup units to stop the black Cherokee that Ogletree was driving for a drug transaction. Without even a reasonable, articulable suspicion, Officer Gray and three other officers went after Ogletree, who by this time had parked at his mother’s house and gotten out of the black Cherokee. Brinson Ogletree came out of the mother’s house and approached his brother at the sports utility vehicle. Two officers seized Brad Ogletree and handcuffed him, while Officer Gray and another officer approached Brinson Ogletree, demanding that he put his hands on the vehicle while he was given a pat-down search, although he had not been in the SUV. Brinson Ogletree, with justification, loudly protested and argued with the officer that he had done nothing and was being harassed. Officer Gray approached him from the rear and used the rubber-covered aerial of her radio to touch/hit him on the shoulder to get his attention, telling him to calm down and to cooperate. When he quickly turned toward her in response and angrily told her not to do that again, she had him handcuffed and arrested for disorderly conduct, i.e., arguing with a Columbus police officer and failing to cooperate, claiming that such conduct had been threatening to her. This was when the Ogletree sisters came to see what was happening. One followed Officer Gray’s command and left to call a superior officer. Woodward, however, argued with Officer Gray and refused to retreat from Gray; Officer Gray arrested Woodward for disorderly conduct.

The trial court granted the defendants’ motion for summary judgment. Reluctantly, we must affirm.

(a) An act directly tending to interfere with, interpose obstacles or impediments, hinder, impede, interrupt in any manner, or prevent or pervert the public administration of justice constitutes obstruction of the police in performing their lawful duty. See OCGA § 16-10-24; Baker v. State, 122 Ga. App. 587, 588-589 (1), (4) (178 SE2d 278) (1970). A police officer, however, is not discharging his or her lawful duty when she makes an arrest of an individual without reasonable and probable cause or stops an individual without specific articulable suspicion; in this case, neither of plaintiff’s brothers’ arrests was based upon probable cause. Wynn v. State, 236 Ga. App. 98, 99 (2) (511 SE2d 201) (1999); Brown v. State, 163 Ga. App. 209, 212 (4) (294 SE2d 305) (1982). Furthermore, to argue with, curse loudly at, to verbally interrupt a police officer while making the arrest of another does not constitute obstruction of a police officer. See Moccia v. State, 174 Ga. App. 764 (331 SE2d 99) (1985); see also Statham v. State, 41 Ga. 507, 513 (3) (1871); McCook v. State, 145 Ga. App. 3, 5 (2) (243 SE2d 289) (1978). To obstruct, resist, or oppose for purposes of obstructing an officer implies forcible resistance and does not mean the refusal to merely obey the police officer’s command to move more than eight feet from where the arrest was being made so that the police could perform their duties unimpeded. Whaley v. State, 175 Ga. App. 493, 494 (333 SE2d 691) (1985); Moses v. State, 6 Ga. App. 251, 253 (2) (64 SE 699) (1909); see also Vince v. State, 113 Ga. 1070, 1071 (39 SE 435) (1901); Chaplin v. State, 141 Ga. App. 788, 790 (2) (234 SE2d 330) (1977).

For speech to rise to the level of obstruction, it must be reasonably interpreted to be a threat of violence to the officer, which would amount to obstruction or hindrance. Dumas v. State, 159 Ga. App. 517, 518-519 (284 SE2d 33) (1981); Evans v. State, 154 Ga. App. 381 (268 SE2d 429) (1980). Lying or intentionally misleading an officer in the lawful discharge of his duty can also constitute verbal obstruction. Duke v. State, 205 Ga. App. 689 (423 SE2d 427) (1992). Warning the subject of an investigation or inciting others to interfere and to hinder an investigation can constitute verbal obstruction. However, none of these acts occurred in this case.

In this case, Woodward made no threat of violence, nor did she lie to Officer Gray. No obstruction, therefore, occurred either under State law or the Columbus ordinance. The policy or practices of the Columbus Police Department to treat verbal abuse and argument with an officer that does not physically interfere with or use words intended to incite others to physically interfere with the lawful exercise of police duties and refusal to move from an area more than eight feet from an arrest or crime scene perimeter does not constitute obstruction and cannot be treated as disorderly conduct under the circumstances of this case.

Police can create a reasonable crime scene perimeter, put up a crime scene tape to avoid destruction or tampering with evidence, or exclude the public from a reasonable physical zone of an arrest within which there is a risk of physical contact between the officer, suspect, and public or a passing of weapons or evidence. However, a command to clear the general area entirely beyond the zone of police operations constitutes an overly broad and unreasonable demand that exceeds reasonable law enforcement procedure and needs.

(b) Disorderly conduct may arise from various conduct both under State statute and local ordinance, i.e., a threat of violence toward a person or property, use of “fighting words,” or the use of obscene, vulgar, or profane language in the presence of someone under 14. OCGA § 16-11-39. “Language is obscene, vulgar or profane when, under the circumstances and manner in which such utterance was made, it would clearly offend a reasonable person’s sense of decency.” Breaux v. State, 230 Ga. 506, 508 (1) (197 SE2d 695) (1973); Grantham v. State, 151 Ga. App. 707, 708 (3) (261 SE2d 445) (1979), aff’d, 244 Ga. 775 (262 SE2d 777) (1979).

For the use of obscene words to constitute a disturbance of the peace, it must be made in the presence of a member of the “public” and not merely a police officer. Thus, an obscenity heard by Officer Gray and other officers but not heard by the public would not have disturbed “the public or some member thereof,” who must be disturbed in their peace and tranquility. See Wood v. Haynes, 148 Ga. App. 640, 641-642 (2) (252 SE2d 69) (1979).

The language directed at Officer Gray did not constitute “fighting words,” i.e., “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (62 SC 766, 86 LE 1031) (1942); Anderson v. State, 231 Ga. App. 807 (499 SE2d 717) (1998); Bolden v. State, 148 Ga. App. 315, 316 (2) (251 SE2d 165) (1978). Fighting words, when uttered to provoke another, fall outside of constitutional protection. Bose Corp. v. Consumers Union &c., 466 U. S. 485, 504-505 (104 SC 1949, 80 LE2d 502) (1984). A police officer may be the victim of fighting words, i.e., “son of a bitch,” “motherfucker,” “bastard,” “bitch,” “motherfucking pig,” or “pig.” Bolden v. State, supra at 316. “Fighting words” for purposes of statutory prohibition should be viewed with regard to the factual circumstances of their utterance. State v. Klinakis, 206 Ga. App. 318, 319-323 (1) (425 SE2d 665) (1992). In this case, however, plaintiff called Officer Gray no derogatory names but merely accused her of harassing her brothers without just reason, which in fact was the case. There existed no provocation in plaintiffs conduct that would breach the peace; she did not seek to incite family and neighbors against the police.

“Disorderly conduct” means some act or conduct which tends to breach the peace or at least disturb that portion of the public which may see or hear the conduct claimed to have been disorderly. See Johnson v. State, 111 Ga. App. 298 (141 SE2d 574) (1965). Under none of the provisions of the Columbus ordinance does plaintiff’s conduct constitute disorderly conduct. Therefore, the arrests on such charge have been employed by the Columbus Police Department as a means to control anyone who argues with them or who refuses to follow their orders to leave an area. Under the circumstances presented here, such conduct exceeded the lawful authority of the police.

(c) Under official immunity, however, Officer Gray has immunity from suit for the discretionary act of arresting the plaintiff for disorderly conduct for arguing with her and failing to obey her command. Actual malice toward plaintiff must be shown, not mere anger, frustration, or irritation, to constitute an exception to official immunity. Here, the evidence does not give even an inference of actual malice, much less proof of it. The combined city-county government is protected by sovereign immunity, because there has been no statutory waiver of sovereign immunity.

Decided January 6, 2000

Reconsideration denied January 19, 2000

Agnew, Schlam & Bennett, G. Michael Agnew, for appellant.

Clifton C. Fay, for appellees.

Finally, no 42 USC § 1983 action for damages can lie against either defendant, because the doctrine of qualified immunity applies where the “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (Citations and punctuation omitted.) Leeks v. Cunningham, 997 F2d 1330, 1333 (11th Cir. 1993). See also Harlow v. Fitzgerald, 457 U. S. 800, 818 (102 SC 2727, 73 LE2d 396) (1982). Henceforth, however, the practice of arresting for disorderly conduct for simply arguing with an officer and refusing to obey a command to move out of an area that is already more than eight feet away from an arrest that reasonably cannot hinder the performance of police duties may be impermissible in the face of this opinion as “ ‘deliberate indifference’ to the rights of persons with whom the police come into contact” from inadequate training. Collins v. City of Harker Heights, Texas, 503 U. S. 115, 123-124 (112 SC 1061, 117 LE2d 261) (1992); Bell v. City of Albany, 210 Ga. App. 371, 373 (436 SE2d 87) (1993); see also Watson v. Mayor &c. of Savannah, 223 Ga. App. 399, 401-402 (477 SE2d 667) (1996); Brayman v. Deloach, 211 Ga. App. 489, 492 (439 SE2d 709) (1993).

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       Cf. “Even verbal exchanges may satisfy that element [of obstruction].” Leckie v. State, 231 Ga. App. 760, 761 (500 SE2d 627) (1998); see also Stepherson v. State, 225 Ga. App. 219, 221 (3) (483 SE2d 631) (1997). Both cases give dicta that verbal exchanges can constitute obstruction, but cite as authority for this Duke v. State, supra at 690, which holds, instead, that lying to the police can constitute obstruction. In these cases, the basis for obstruction was physical resistance to an arrest for disorderly conduct.

       Cf. Bennett v. City of Dalton, 69 Ga. App. 438 (25 SE2d 726) (1943). In that case, the defendants twice refused to move from a crowd where their loud and boisterous complaints were the center of attention. However, the disorderly conduct consisted of causing the disturbance of the peace among the public that made up the crowd.

       Art. I, Sec. II, Par. IX, of the 1983 Const. of Ga.; Merrow v. Hawkins, 266 Ga. 390 (1) (467 SE2d 336) (1996).

       “[A]ctual malice” ... denotéis] “express malice or malice in fact.” Express or actual malice, although not a term typically used in the context of civil litigation, see, e.g., OCGA § 51-7-2, is found in criminal law and has long been distinguished from “implied malice,” a term which has been defined to mean conduct exhibiting a “reckless disregard for human life.”
      (Citations omitted.) Id. at 392 (2). While the evidence, when given the most favorable inference, demonstrates frustration, irritation, and possibly even anger, such evidence falls below the legal standard for actual malice, because Officer Gray and the other Columbus police officers mistakenly believed that they could make arrests for disorderly conduct when a person argued with them and refused to obey their command.

        Seay v. Cleveland, 270 Ga. 64, 65 (1) (508 SE2d 159) (1998); Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476) (1994); Bowen v. Columbus, Ga., 256 Ga. 462, 463 (349 SE2d 740) (1986).


author: Smith, Judge.

text:
    A99A1726.
    THE STATE v. McTAGGART.
    (528 SE2d 309)
   Smith, Judge.

After the trial court granted Jerry McTaggart’s motion to suppress, the State filed this appeal. The trial court determined that McTaggart did not authorize police to conduct a search of the interior of his home. Since the court’s ruling was not clearly erroneous, we affirm.

“A trial court’s decision [on] questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. [Cit.]” Garcia v. State, 195 Ga. App. 635, 637 (1) (394 SE2d 542) (1990). Since the trial court sits as the trier of fact, its findings are analogous to a jury verdict. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990). Keeping these principles in mind, we must construe the evidence most favorably toward upholding the trial court’s findings and judgment. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

On December 26, 1997, emergency assistance was summoned to McTaggart’s home after two Rottweilers savagely mauled the three-year-old son of McTaggart’s girlfriend. Responding to a 911 call that a child in the yard had been attacked by dogs, police arrived at McTaggart’s home shortly after other emergency personnel. McTag-gart lived with his girlfriend and her two children in a mobile home that had a large fenced yard with a gate. After the boy, Dakota Randolph, had been evacuated by a Life Force helicopter, McTaggart hurriedly left home hoping to intercept the helicopter at Erlanger Hospital. As McTaggart ran to his vehicle, having been informed that authorities would be remaining for a while, he told police something to the effect, “[d]o what you have to do and lock the gate when you’re done.” McTaggart did not ask police to check his household appliances or to ensure that any doors or windows were locked. He mentioned only the gate.

Police remained on the premises for a couple of hours, taking photographs and investigating the accident/crime scene of the incident. The Rottweiler attack had occurred outside in the yard, and the child’s injuries were so serious he died before reaching the hospital.

Detective Dan Bilbrey, an investigator from the Catoosa County Sheriff’s Department, and Captain Loren Schmidt, head of the detective division, entered McTaggart’s residence. When asked if he had ever obtained anyone’s consent to enter the home, Bilbrey replied in the negative. According to Bilbrey, they did so “to make sure that no utilities, stoves, et cetera had been left on and make sure nobody else was inside the trailer that shouldn’t be and to secure the trailer.” Bil-brey admitted that when he went into the house, “everyone was gone” and that although he could have just reached in and pulled the front door shut, he had walked through the entire trailer. While on the premises, Bilbrey purportedly discovered several marijuana “roaches” in an ashtray located inside the master bedroom. Bilbrey denied that he was looking for additional blood at the time when he noticed the “roaches.” He claimed that he had wanted to make certain that no appliances had been left on. But a bedroom is not a kitchen, and police had neither permission nor a warrant to search for blood. A sketch of the trailer’s floor plan indicates that neither the front door nor the rear door is situated near this bedroom. Bilbrey admitted that when the investigators left, they did not lock the front door or the gate but just closed them. He also conceded that he had made no effort to obtain a search warrant.

McTaggart, indicted for two counts of involuntary manslaughter, sought to exclude any evidence obtained as a result of an illegal search. He moved to suppress such evidence on the basis that he did not consent to the warrantless and unauthorized entry and search of his home. McTaggart contended that the search of his residence and private living area was illegal, unreasonable, and unconstitutional. The trial court agreed and granted the motion to suppress. The court noted that although the prosecuting officer testified “that the entry was for the purpose of securing it and making sure no appliances had been left on,” other “[u]nobjected testimony also established that another detective’s report indicated that the entry was for an investigative purpose.” The court also observed that “[t]here was also ample opportunity for the police to obtain a search warrant, which was not done.”

In its sole assertion of error, the State offers several reasons in support of its contention that the trial court erred, including: that “there was no search at all,” that the officers lacked any “investigative intent,” that exigent circumstances existed, and that the plain view doctrine applied. We find no merit in any of these arguments.

No evidence showed that police requested and obtained McTag-gart’s permission to conduct a search of his home. Absent exigent circumstances or the application of an exception to the warrant requirement, police have no right to conduct a search of a home without a warrant. State v. David, 269 Ga. 533, 535-536 (2) (501 SE2d 494) (1998). The presence of contraband without more does not give rise to exigent circumstances. Davis v. State, 262 Ga. 578, 582 (3) (422 SE2d 546) (1992). No evidence indicated that the officer reasonably believed that the warrantless entry was justified to protect or preserve life or to avert serious injury. See id. at 583. Bilbrey admitted having been informed that the dog attack was limited to one person, three-year-old Dakota Randolph. Even assuming that McTaggart told police to close the gate behind them after they finished their business, any ambiguity in such a directive cannot reasonably be construed as having authorized a general search of the entire premises including the bedrooms. Furthermore, as the determiner of witness credibility, the trial court was free to disregard the officer’s assertion that he had been looking for appliances left on or for other possible victims.

Nor was the plain view doctrine applicable. Under that doctrine:

Decided January 19, 2000.

Herbert E. Franklin, Jr., District Attorney, Melodie S. Bedford, for appellant.

Little, Bates & Kelehear, Sam F. Little, for appellee.

[A] police officer who observes contraband in plain view is entitled to seize it, so long as he is at a place where he is entitled to be, i.e., so long as he has not violated the defendant’s Fourth Amendment rights in the process of establishing his vantage point. [Cits.]

Galloway v. State, 178 Ga. App. 31, 33-34 (342 SE2d 473) (1986).

Here, the State, which bore the burden of showing that the search was lawful, failed to prove that the investigator was at a place he was entitled to be. State v. O’Bryant, 219 Ga. App. 862, 865 (467 SE2d 342) (1996); compare Galloway, supra at 34. Without question, McTaggart had a reasonable expectation of privacy in the bedroom of his own home. See generally Espinoza v. State, 265 Ga. 171, 172 (2) (454 SE2d 765) (1995). The plain view exception to the warrant requirement is based on discovery of incriminating evidence that is not the product of a search. Mitchell v. State, 181 Ga. App. 470 (352 SE2d 647) (1987). “Where a plain view seizure takes place, there is no search. [Cit.]” Pickens v. State, 225 Ga. App. 792, 795 (1) (b) (484 SE2d 731) (1997). But here there was a search, the officer did not have a legal right to be looking around inside the bedroom, and the discovery of the contraband was not inadvertent. State v. O’Bryant, supra at 865. Since the evidence supports the trial court’s findings, we will not disturb the court’s ruling. Ward v. State, 193 Ga. App. 137, 138 (1) (387 SE2d 150) (1989); see Ledford v. State, 220 Ga. App. 272, 273 (469 SE2d 401) (1996).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       The State and McTaggart stipulated that the two Rottweilers had been at this property for only four days before the day of the attack.


text:
    A99A1791.
    O’HARA v. THE STATE.
    (528 SE2d 296)
   Smith, Judge.

Emory O’Hara was convicted of armed robbery and loitering. Following the denial of his motion for new trial, O’Hara filed this appeal challenging the sufficiency of the evidence, the trial court’s refusal to permit his custodial statement to be read to the jury, and the court’s questioning of two witnesses summoned on behalf of the prosecution. Finding no error, we affirm.

On appeal, the evidence must be viewed in a light most favorable to the verdict, and O’Hara no longer enjoys the presumption of innocence. Pollard v. State, 230 Ga. App. 159 (495 SE2d 629) (1998). The evidence, when viewed in that manner, established that at about 5:00 a.m., two men robbed a convenience store clerk at gunpoint. The clerk identified O’Hara as the robber who pointed a pistol at him from the doorway. The victim described the perpetrators’ race, height, and clothing to police and stated that both had worn shiny, black pants made from either a nylon or silk material. After robbing the store, the two men immediately fled on foot. Within two minutes of the clerk’s 911 call, police began responding. One officer spotted two males who fit the broadcast description of the robbers behind a nearby apartment complex. When this officer directed a spotlight toward them, the suspects fled. He recovered a .32 revolver from the ground where the suspects had been standing moments before. The victim believed this gun was the weapon used in the robbery.

Meanwhile, by chance, Willie Smith, a corrections officer, was in the immediate vicinity where the perpetrators had fled. Smith was in the process of demonstrating his wife’s newspaper route to a friend scheduled to assume the route temporarily. After marking a curb, Smith stood up and then noticed a young man, later identified as O’Hara, standing a few feet away. When O’Hara asked for a ride to a specified location, Smith told him if he could wait until he finished marking his route, he would drop him off close to that area. After O’Hara climbed into the bed of the truck and lay down, Smith asked him, “if he’d done anything crazy,” “robbed anybody or shot anybody or anything like that.” O’Hara denied doing so. With increasing concern for his personal safety, Smith suggested they approach a policeman who was searching in a nearby field. But O’Hara responded, “[n]o, just get me out of here.”

Partially because of the anxiety O’Hara displayed, Smith flagged down an officer driving toward him. Noticing that Smith was motioning toward the rear of his truck, Officer Joel McNeal saw O’Hara peering up at him. Officer McNeal also noticed that O’Hara was sweating profusely and that his clothing was dirty and torn. After O’Hara leaped out of the truck bed and “hit the ground running,” the officer drew his weapon. O’Hara continued to flee, although he eventually complied with the officer’s repeated commands to stop. O’Hara had abrasions and marks on his hands, consistent with being jabbed by a chain link fence. O’Hara was apprehended within three city blocks of the site of the robbery.

Another officer began studying certain footprints newly formed in some dew and extending from a footpath. According to the officer, this trail was about 150 to 200 yards from the location of the robbery. Although unable to take a casting from the wet grass, police were convinced that the tread on O’Hara’s tennis shoes provided a match. Upon tracing the footpath, an investigator discovered a pair of discarded black nylon pants with a small cut by the right pocket.

1. O’Hara contends that the evidence was insufficient to support his conviction for loitering. He claims that since the State failed to prove that he had been afforded an opportunity to explain his presence and conduct before being placed under arrest, his conviction under OCGA § 16-11-36 (b) cannot stand. We disagree.

Subsection (b) provides in relevant part:

Unless flight by the person or other circumstances make it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this Code section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Code section if the law enforcement officer failed to comply with the foregoing procedure or if it appears at trial that the explanation given by the person was true and would have dispelled the alarm or immediate concern.

OCGA § 16-11-36 (b). In this case, O’Hara attempted to elude discovery and capture by police. As an officer approached the vehicle in which O’Hara was hiding, O’Hara immediately attempted to flee. Even after being detected, pursued, and ordered to stop by an officer pointing a gun at him, O’Hara did not immediately halt. Given O’Hara’s flight combined with his peculiar behavior and appearance, the investigating officer might well have considered the circumstances impracticable for seeking an explanation from O’Hara concerning his presence and conduct. Although O’Hara argues otherwise, a rational trier of fact could have found beyond a reasonable doubt that O’Hara was present at an odd place, at a suspicious time of day, exhibited an unusual appearance, and was behaving in a bizarre manner atypical of law-abiding individuals. See Blair v. State, 216 Ga. App. 545, 547 (2) (455 SE2d 97) (1995); see OCGA § 16-11-36 (a) for the elements of this crime. This evidence was sufficient within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to sustain the conviction for loitering.

2. O’Hara asserts that the trial court erred by refusing to permit him to read to the jury a copy of the statement he had given to police. He claims that under the rule of completeness, he should have been allowed to read it in its entirety.

A witness may be impeached by his own prior contradictory statements. OCGA § 24-9-83. Here, both before and during the trial, O’Hara implicated a person named “T” as the perpetrator. But his two renditions of the surrounding circumstances and narration of events bore little resemblance to each other. On cross-examination, the State sought to impeach O’Hara with numerous inconsistences and deviations between the custodial statement he had provided to investigators and his courtroom testimony. After perusing his signed statement, O’Hara vouched for its accuracy yet claimed that the typed statement did not accurately correspond with what he had told police. When defense counsel sought to have O’Hara read the statement to the jury, the court refused to allow him to do so.

Prior inconsistent statements are generally admissible to impeach a witness. Tommie v. State, 158 Ga. App. 216, 217 (2) (279 SE2d 510) (1981). A prior inconsistent statement of a witness who takes the. stand and is subject to cross-examination is admissible as substantive evidence and is not limited to use for impeachment purposes only. Gibbons v. State, 248 Ga. 858, 862-863 (286 SE2d 717) (1982). In this case, O’Hara’s entire custodial statement was admitted into evidence, so the jury was free to determine what meaning, weight, and credibility to accord that statement. Toledo v. State, 216 Ga. App. 480, 481 (2) (455 SE2d 595) (1995). Even assuming that the trial court erred in refusing to permit O’Hara to read aloud his prior statement, any error was harmless. Duckworth v. State, 268 Ga. 566, 569 (2) (492 SE2d 201) (1997).

3. O’Hara contends that the trial court erred by questioning witnesses and by summoning two witnesses on the prosecution’s behalf. He claims that the court enhanced the credibility of these witnesses by calling them as court witnesses. We disagree.

Despite acknowledging the accuracy of his custodial statement, O’Hara claimed he had told police that he wanted a lawyer present and had refused to answer certain questions. After O’Hara testified that he had been threatened by police unless he implicated himself, the trial court ordered the State to produce both officers whom O’Hara had named.

“A trial court has the right to develop fully the truth of a case, and may exercise this right by examining witnesses called by the parties, or by calling its own witnesses.” (Citations omitted.) Ashley v. State, 263 Ga. 820, 822 (3) (a) (439 SE2d 914) (1994). In calling these witnesses, the trial court did not abuse its discretion.

During the State’s examination of the first officer, Detective Lawrence Bender, the court, interposed this instruction: “I want you to tell them exactly what happened and whether or not he signed it and whether he signed it freely and voluntarily and whether you explained it to him, do you understand that?” Although this directive by the court might have been more perfectly phrased, we cannot agree that it constituted a judicial comment on the veracity of the witness. See Harris v. State, 202 Ga. App. 618, 619 (3) (a) (414 SE2d 919) (1992). Nor does the record show that O’Hara objected. Id. at 620.

Although a trial court may propound questions, it may not express an opinion or intimate to the jury what has or has not been proved. Thomas v. State, 240 Ga. 393, 400 (3) (242 SE2d 1) (1977). The purpose of this limitation, in part, is to prevent the jury from being influenced by any disclosure as to the judge’s opinion of a witness’s credibility. Wilcox v. State, 236 Ga. App. 235, 236 (1) (511 SE2d 597) (1999); see also OCGA § 17-8-57.

During the State’s questioning of Detective James McClinton, the other interrogating officer, McClinton claimed that since he typed O’Hara’s statement as the comments were being made, it was very unlikely that he had missed anything of significance. While McClinton was still being questioned by the prosecutor, the court briefly engaged in this colloquy:

THE COURT: You’ve been a policeman for 20 something, haven’t you?
THE WITNESS: Yes sir. And I typed while I was in the military.
THE COURT: Are you still thinking about retiring in September?
THE WITNESS: No, sir, October the 30th.
THE COURT: I’ve told you, you can’t go unless I did.

Although this inquiry did not rise to the level of advocacy or imply the court’s approval of the detective’s testimony, the remarks did seem to suggest approval of this detective. Henry v. State, 265 Ga. 732, 740-741 (9) (462 SE2d 737) (1995); see Dixon v. State, 196 Ga. App. 15, 18 (7) (395 SE2d 577) (1990). Such personal remarks by a court should be avoided to prevent even the slightest intimation of partiality. See id. To safeguard the court’s neutrality, whenever a court calls its own witness, the better practice is to instruct the jury that by calling a witness, the court suggests nothing about credibility and that this witness is to be assessed like all other witnesses. See Henry, supra (Fletcher, P. J., concurring). Nevertheless, we cannot agree with O’Hara that the trial court undermined the integrity of the process or improperly enhanced the credibility of this witness by engaging in this brief, friendly exchange to which O’Hara posed no objection. Mullins v. State, 269 Ga. 157, 159 (3) (496 SE2d 252) (1998); see Smith v. State, 158 Ga. App. 330, 331 (2) (280 SE2d 162) (1981).

Decided January 19, 2000.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Alonza Whitaker, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       Later, after being provided the requisite warnings mandated by Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), O’Hara denied any involvement in the robbery and claimed that he was out there because he had gotten into an argument with a friend named “T.”


author: Miller, Judge.

text:
    A99A1801.
    MINTZ v. BARLOW.
    (528 SE2d 306)
   Miller, Judge.

Philip Mintz and Robert Barlow jointly owned land that they leased to a corporation (in which they each owned one-third of the stock) that operated a barbeque restaurant on the premises. Concerned about his liability on over $650,000 in growing debt associated with the business, Mintz unsuccessfully approached Francis Harris about Harris buying him out. Mintz eventually sold Barlow (at cost) his interests in the land and corporation and received a release from the primary lender on over $600,000 of the liability and an indemnity from Barlow on the rest. Shortly thereafter, Barlow for the first time contacted Harris about selling him the land and corporate stock. Harris agreed to buy Barlow’s interests in the land and corporation at a profit to Barlow, although unlike Mintz, Barlow remained liable on the debts.

Mintz subsequently sued Barlow for half of the profit, claiming that Barlow had secretly negotiated the deal with Harris prior to Mintz selling out to Barlow and that Barlow had fraudulently and in breach of fiduciary duty concealed this profitable deal from Mintz. Alleging unjust enrichment, Mintz also sued to recover under quantum meruit.

Barlow successfully moved for summary judgment on all three counts, which Mintz appeals. Because the direct evidence that Barlow engaged in no negotiations with Harris prior to the sale of Mintz’s interests to Barlow is not contradicted by the circumstantial evidence and because Mintz and Barlow had an express contract regarding the sale, we affirm.

1. In his first two counts, Mintz asserts fraud and breach of fiduciary duty based on the allegation that Barlow concealed from him the alleged fact that, prior to the Mintz/Barlow sale, Barlow had already negotiated a deal with Harris to sell Harris their joint interests at a profit. Mintz alleges that the concealment fraudulently induced him to sell his interests to Barlow at cost, that as co-owner of the land Barlow breached fiduciary duties owed to Mintz to negotiate with Harris on both their behalf, and that Mintz should be awarded one-half the profit Barlow received on the Harris deal.

We hold that the undisputed direct evidence conclusively established that Barlow did not engage in any negotiations with Harris until after the Mintz/Barlow sale and, therefore, no concealment took place that either fraudulently induced Mintz to sell out to Barlow or breached any fiduciary duties Barlow may have owed while a tenant in common or joint venturer with Mintz. Both Harris and Barlow testified without contradiction that the first time they discussed a possible sale to Harris was during the week after the Mintz/Barlow sale. The representative of the lender that was owed the business debts and that was involved in both transactions confirmed that the first he heard of any possible sale to Harris was during the week after the Mintz/Barlow sale. Mintz himself conceded that he had no knowledge of any negotiations between Harris and Barlow that took place prior to the Mintz/Barlow sale.

The importance of this testimony is threefold. First, regardless of what fiduciary duties Barlow may have owed to Mintz arising out of their joint venture or common land ownership, those duties clearly ceased once Mintz sold his interests to Barlow and Mintz was released from the debts. Thus, Barlow’s actions in negotiating a deal with Harris after the termination of his relationship with Mintz could not breach any duties formerly owed to Mintz. Second, prior to the Mintz/Barlow sale Barlow could not have fraudulently concealed a deal with Harris when in fact he had not even spoken with Harris about such. Third, Mintz’s assertion that Barlow negotiated a sale with Harris on both their behalf is belied by the fact that Barlow did not even approach Harris until after Mintz was out of the picture.

Where direct and positive testimony supports a motion for summary judgment, Kappa Sigma Intl. Fraternity v. Tootle instructs that

the opposing party must show some other fact which contradicts the testimony. If this other fact is direct evidence, that is sufficient to allow the case to go to the jury; if the other fact is circumstantial evidence, it must be inconsistent with the defendant’s evidence, or if consistent, it must demand a finding of fact on the issue in favor of the plaintiff.

Mintz presented no direct evidence of any prior secret negotiations. Rather, he claimed that three pieces of circumstantial evidence demanded the inference of such. Scrutiny of this circumstantial evidence leads to a different conclusion.

First, Mintz points to minor inconsistencies in the testimony of Harris and Barlow about which day of the week the negotiations took place for the sale to Harris. Yet none of these inconsistencies point to any negotiations taking place prior to the week which followed the Mintz/Barlow sale. Thus, they do not contradict the direct, positive evidence that the negotiations took place after the Mintz/Barlow sale.

Second, Mintz focuses on the failure of either Harris or Barlow to record the warranty deed evidencing the sale of the land to Harris. Mintz extrapolates from this that the parties must have negotiated the sale to Harris prior to the Mintz/Barlow sale. But the inference that Harris and Barlow may have wanted to keep their deal secret after the fact does not lead to, let alone demand, the inference that the timing of their negotiations preceded the Mintz/Barlow transaction. There could be a myriad of reasons why they may have wanted to keep the deal quiet, none of which would have anything to do with the timing of their negotiations. To say otherwise is merely to speculate about possibilities that do not follow logically from the evidence.

Third, Mintz emphasizes that Harris and Barlow had different views as to how they arrived at the purchase price and as to how the assets were valued. Once again, such minor inconsistencies had nothing to do with the timing of the negotiations and certainly do not demand an inference contradicting the direct testimony that the negotiations took place only after the Mintz/Barlow transaction.

The trial court did not err in concluding that the undisputed evidence showed that Harris and Barlow engaged in no discussions about a potential sale until after the Mintz/Barlow transaction. As this is the key allegation on which the fraud and breach of fiduciary duty counts rest, the trial court did not err in entering summary judgment on these counts.

Decided January 19, 2000

Cauthorn & Associates, Thomas E. Cauthorn III, Melissa M. Nohr, for appellant.

Troutman Sanders, Richard A. Newton, Robert W. Kamerschen, Robert E. Flournoy III, for appellee.

2. Nor did the court err in entering summary judgment on the quantum meruit count for Mintz and Barlow had an express contract regarding the sale of Mintz’s interests to Barlow in exchange for a sum certain. “There cannot be an express and implied contract for the same thing existing at the same time between the same parties. A plaintiff is estopped to recover on quantum meruit where there exists an express agreement.” Mintz’s claim that the express contract was void because of fraud fails in light of the conclusion of Division 1 above that there was no fraud. Moreover, because Mintz did not seek to rescind the contract and has retained its benefits, he is deemed to have affirmed the contract and is bound by its terms.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       Barlow subsequently died, and Rachel Barlow as executrix of his last will and testament has been substituted as appellee.

       Cf. Fuller v. McBurrows, 229 Ga. 422, 425 (1) (192 SE2d 144) (1972) (tenants in common occupy a fiduciary relationship to each other with respect to their common title); Conner v. Branch, 185 Ga. App. 565, 566 (364 SE2d 890) (1988) (under certain circumstances concealment may serve as a basis for a fraud action).

       (Citation mid punctuation omitted.) 221 Ga. App. 890, 892 (1) (473 SE2d 213) (1996).

       See also Conner, supra, 185 Ga. App. at 567.

       See Edwards v. Campbell Taggart Baking Cos., 219 Ga. App. 806, 807 (1) (466 SE2d 911) (1996) (“ ‘An inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.’ [Cit.]”).

       (Citations and punctuation omitted.) Gerdes v. Russell Rowe Communications, 232 Ga. App. 534, 537 (3) (502 SE2d 352) (1998).

       See G. Mansour, Inc. v. Mansour’s, Inc., 233 Ga. App. 7, 9 (1) (503 SE2d 304) (1998); cf. OCGA § 13-5-5 (fraud renders a contract voidable, not void).


text:
    A99A1815.
    MARTINEZ v. THE STATE.
    (528 SE2d 294)
   Smith, Judge.

Jerry Martinez was convicted of two counts of armed robbery and one count of possession of a firearm during the commission of a felony. His motion for new trial was denied, and Martinez brings this appeal, contending that the trial court erred in allowing certain testimony by the arresting officer and that his trial counsel was ineffective. We find no merit in either assertion of error, and we affirm the judgment.

1. Martinez first contends it was error to allow Gwinnett County Police Department Detective D. P. Henry to testify that Martinez was taken into custody on an outstanding warrant for an unrelated charge. We do not agree. First, Martinez raised no contemporaneous objection to the testimony. Although counsel did voice an objection to the anticipated testimony before the detective took the stand, he did not object at the time the testimony was given. An “anticipatory” objection cannot suffice to preserve the issue. It is well established that if the evidence is not objected to at the time it is admitted, its admission cannot later be raised as error on appeal. Sides v. State, 213 Ga. 482, 487-488 (5) (99 SE2d 884) (1957). In Sides, the defense lawyer similarly objected to anticipated testimony, and the Supreme Court held that such objections are “premature” and cannot be considered objections to the testimony subsequently given. Id. at 488 (5).

Even if the issue had been properly preserved, it has no merit. This court has held consistently that circumstances surrounding an arrest may be admitted as part of the res gestae, notwithstanding that they incidentally place the defendant’s character in issue. Samples v. State, 234 Ga. App. 8, 10 (1) (a) (505 SE2d 813) (1998); see Humphries v. State, 154 Ga. App. 596 (2) (269 SE2d 90) (1980).

2. Martinez maintains that his trial counsel was ineffective because he did not subpoena or call the officer who made the initial police report, which showed that one of the victims described the robber as a black male.

The trial court found that Martinez’s trial counsel rendered effective assistance. On appeal, a trial court’s ruling on this issue must be affirmed unless it is clearly erroneous.

To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel.

(Citations and punctuation omitted.) Hollis v. State, 225 Ga. App. 370, 371-372 (3) (484 SE2d 54) (1997). The burden is on the appellant to prove his counsel was ineffective. McClarity v. State, 234 Ga. App. 348, 351 (3) (506 SE2d 392) (1998). And to obtain a reversal, he must prove both prongs of the test in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984): He must show not only that counsel’s performance was deficient but also that a reasonable likelihood exists that the outcome of his trial would have been different but for counsel’s ineffectiveness. Tucker v. State, 232 Ga. App. 350, 351 (c) (501 SE2d 868) (1998).

It appears that Martinez is arguing that without the testimony of the officer making the original police report, the jury was unaware that the victim’s original description differed from his later identification of Martinez, who is Hispanic. But the victim himself testified on cross-examination, after having his recollection refreshed, that he had initially described his assailant as a black male. Detective Henry also testified that the victim originally described the robber as a black male, which was recorded in the police report. The testimony of the officer making the original report therefore would have been simply cumulative of other evidence. We therefore conclude that Martinez failed to carry his burden of showing that the outcome of the trial would have been different had the officer been called. See Ramey v. State, 239 Ga. App. 620, 623 (520 SE2d 55) (1999).

Decided January 19, 2000

Christopher T. Adams, for appellant.

Daniel J. Porter, District Attorney, James M. Miskell, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.


text:
    A99A1875.
    HARPER v. THE STATE.
    (528 SE2d 317)
   Smith, Judge.

After beating a prison guard, inmate Johnny Harper was convicted of obstructing a law enforcement officer. Following a hearing, the trial court denied Harper’s motion for new trial. Among several grounds Harper asserts for reversal, he contests the sufficiency of the evidence and the effectiveness of his trial counsel. Finding no basis for reversal, we affirm.

On the morning of the incident, Correctional Officer Ethridge Lokey was working in a protective custody cellblock. In that area, all inmates were “kept separate in individual cells” that were electronically locked at all times except when the inmates were taken out to the yard or to shower or removed for other administrative reasons. According to Lokey, the inmates were taken out one at a time, permitted to shower, then placed back into their respective cells. While escorting Harper to the shower, Lokey was suddenly and viciously attacked. When Lokey regained consciousness, Harper was on top of him beating him on his head. When the blows abruptly ceased, Harper returned to his cell, and Lokey summoned help on his radio. Lokey sustained two,broken ribs, multiple bruises and contusions to his head and shoulders, and a punctured lip. As a result of the beating, Lokey missed nearly a month of work. Lokey testified that Harper was “the only inmate out of his cell at the time.”

Fellow Correctional Officer Mary Riffle, responsible for electronically unlocking the cell doors, observed Harper being taken to the shower by Lokey. Moments later, alerted by Lakey’s radio call, Riffle saw Lokey leaning against a wall, his face bloodied. Riffle immediately summoned help. According to Riffle, no other cell doors had been opened, and she did not see any other persons in the hallway.

Harper’s sole defense was self-defense. Harper, an inmate for 18 years, routinely performed research in the prison law library. Harper claimed that on the morning of the incident, at the time he returned from the prison library, Lokey was angry with him because “I had snitched on him.” Harper maintained that Lokey had filed 19 disciplinary reports against him within a 44-day period, and he had filed three grievances against Lokey. Harper testified that Lokey had been the aggressor and had swung at him with handcuffs “wrapped around his fists.” According to Harper, he acted only to defend himself after Lokey attempted to assault him.

Lokey contradicted Harper’s assertions, testifying that although there had been some prior differences between the two men, no prior difficulties had occurred that triggered concern for his personal safety. Lokey did not recall having filed any disciplinary reports concerning Harper and attested that he was not aware of any grievances filed against him by Harper.

1. In three assertions of error, Harper contends that the verdict is contrary to law, contrary to the evidence, and strongly against the weight of the evidence.

When the “general grounds” are asserted, we review only the sufficiency of the evidence. Martin v. State, 219 Ga. App. 277, 278 (1) (464 SE2d 872) (1995). Here, Lokey described in detail how he had been beaten, and his physical injuries were consistent with his account of events. Riffle confirmed that no other inmate had been out of his cell. At the time of the crime, Lokey was in the process of exercising his lawful duties as a correctional officer. See generally Kight v. State, 181 Ga. App. 874, 875 (1) (354 SE2d 202) (1987). Having reviewed the evidence in the light most favorable to the jury’s determination and leaving evidence weight and witness credibility to the jury, we find that a jury could have found Harper guilty beyond a reasonable doubt of the crime of obstruction. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Witherspoon v. State, 262 Ga. 2 (1) (412 SE2d 829) (1992).

2. Harper contends that the pretrial proceedings discriminated against him as an inmate and denied his right to procedural due process under the federal constitution.

During a pretrial hearing, Harper argued that as an inmate he had not been afforded the same treatment as persons not incarcerated at the time of commission of a crime. He claimed that in the “free world” after a warrant is served on a person accused of a crime, that person has a first appearance hearing within 72 hours and can seek to obtain appointed counsel, who can then file motions, request a preliminary hearing, and otherwise present a defense. The trial court agreed to give defense counsel an opportunity to file appropriate motions and to conduct a hearing on those motions before trial.

After this hearing, Harper filed a “motion to quash the indictment or in the alternative plea in bar/abatement.” In this motion, Harper asserted that he did not waive his right to counsel prior to arraignment, a first appearance hearing, or a preliminary hearing. Harper contended that the Georgia Department of Corrections and the Georgia State Prison in Reidsville deprived him of his constitutional rights and denied him equal protection.

On appeal, Harper asserts that he was not notified of arraignment and that his counsel waived formal arraignment without Harper’s authorization to do so. Harper, however, failed to show that he obtained a ruling on these issues below. He did not supply a transcript of the motion hearing or a copy of an order denying the motion to quash indictment. Any purported error was waived by Harper’s failure to obtain a ruling on these issues before the verdict. Spear v. State, 270 Ga. 628, 632 (5) (513 SE2d 489) (1999); see Frazier v. State, 204 Ga. App. 795 (420 SE2d 824) (1992) (right of formal arraignment and plea is considered conclusively waived when not brought to court’s attention until after verdict).

3. Harper asserts that his trial counsel was ineffective. We disagree.

To establish ineffectiveness, an appellant must show not only that his counsel’s performance was deficient but also that the deficiency prejudiced him. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984); Rucker v. State, 268 Ga. 406, 407 (2) (489 SE2d 844) (1997). Failure to satisfy either prong of the Strickland standard is fatal to an effectiveness claim. Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997). Absent a showing of prejudice, no inquiry need be made into counsel’s alleged deficiencies. Ortiz v. State, 222 Ga. App. 432, 434 (5) (474 SE2d 300) (1996).

Harper claims that his attorney failed to conduct any pretrial investigation of the crime scene or to offer photographs or videotapes of it. He further contends that his counsel did not consult him about trial strategy or obtain statements from witnesses willing to testify on his behalf. It is undisputed that the medical personnel who examined Harper shortly after the attack were unable to find any injuries whatsoever. Nor did Harper offer any evidence to substantiate his testimony that grievances and disciplinary actions had been filed or that there had been any prior difficulties. Nor did Harper demonstrate how these witnesses, photographs, or videos would have resulted in a different outcome to his trial. See Ortiz, supra. Although Harper testified that he had been in prison for 18 years and had never previously attacked a guard, the record indisputably shows that Harper was incarcerated in an area designed to maintain intense security over certain prisoners. Harper’s failure to make the requisite showing of prejudice is fatal to this claim even assuming for purposes of argument that his trial counsel’s performance had been somehow deficient. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995). Since the trial court’s finding that Harper was not denied effective assistance of counsel was not clearly erroneous, it must be affirmed. Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996).

Decided January 19, 2000.

Samuel G. Oliver, for appellant.

J. Thomas Durden, Jr., District Attorney, Timothy B. Lumpkin, Assistant District Attorney, for appellee.

4. Harper contends that he was unable to assist in his own defense because he was not permitted to obtain his eye medication.

Just before trial, Harper informed the court that he had a degenerative vision problem and that he was not receiving certain eye drops prescribed for him. Despite Harper’s claim that he could not effectively participate in his own defense without the medication, the court found otherwise. An administrative assistant to the warden who reviewed Harper’s file testified that there was no current prescription for any eye medication in that file. The court noted that Harper was able to recognize three corrections officers from distances of 20 and 30 feet. The court expressly found that Harper’s showing that he would be prejudiced by proceeding with the trial was insufficient.

Absent a showing of harm, a trial court’s ruling will not be disturbed. Jones v. State, 237 Ga. App. 715, 716 (515 SE2d 431) (1999). Since Harper has provided no evidence of what assistance he could otherwise have provided at trial and how such assistance would have changed the outcome of his trial, we must reject this claim. Brooks v. State, 232 Ga. App. 115, 117 (9) (501 SE2d 286) (1998).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       Harper offered no documentation for either claim.


text:
    A99A2080.
    MATHIS v. THE STATE.
    (528 SE2d 293)
   Smith, Judge.

Goody Mathis, Jr. appeals from his conviction for two counts of aggravated assault and two counts of possessing a firearm during the commission of a crime. In his sole assertion of error, he contends the trial court erred in refusing to give his requested charges on voluntary intoxication, which was his sole defense. We find no error and affirm.

Construed tb support the verdict, the evidence presented at trial showed that Mathis drank heavily after a woman with whom he had an affair lasting at least seven years ended their relationship. He then got his wife to drive him in his truck to his brother’s house. On the way, they stopped at thé home of the former girlfriend’s aunt. Mathis had a gun permit and kept a gun in his truck. Mathis got out of the truck and walked toward the aunt. When the aunt went over to see what he wanted, Mathis swung at her. He missed but fell down. .When he got up, the aunt pushed or knocked him down. The gun was apparently in his pocket. When he got up the second time, she saw he had a gun. He shot her three times at close range. He then shot the girlfriend three times at close range. Between shots, as she begged for her life, thinking the shots were fatal, he told her: “B — h, I hope you is dead.” When he had emptied the gun, he instructed that the police be called, saying: “I came here to do what I had to do; call the man.”

Mathis’s sole defense at trial was that he was so intoxicated as to render the shootings unintentional. The focus of his sole assertion on appeal is that because this was his sole defense, the trial court was required to give the requested charges. It goes without saying, however, that if a defendant’s sole defense has no basis in law, the trial court is not required to so instruct the jury.

Aggravated assault is not a crime of specific intent, but Mathis argued that his mind was so impaired by alcohol that it was impossible for him to form the required general intent to injure. See Cline v. State, 199 Ga. App. 532, 533 (2) (405 SE2d 524) (1991). Mathis requested jury instructions focusing on informing the jury that if he had been so impaired by alcohol as to render him incapable of forming the intent to shoot the victims, they could acquit him. The trial court refused to give Mathis’s requested charges and essentially instructed the jury instead on OCGA § 16-3-4, which provides, in pertinent part, that “[vjoluntary intoxication shall not be an excuse for any criminal act or omission.”

The trial court gave a lengthy and detailed charge on intoxication, instructing the jury that

Decided January 19, 2000.

our law provides that voluntary intoxication shall not be an excuse for any criminal act. It provides further that if a person’s mind when not affected by intoxicants is capable of distinguishing between right and wrong as well as reasoning and acting rationally and the person voluntarily deprives himself of reason by consuming intoxicants and while under the influence of such intoxicants the person commits a criminal act, the person is criminally responsible for such acts to the same extent as if the person were sober. Whether or not the defendant in this case was voluntarily intoxicated at or during the time alleged in the indictment is a matter solely for you, the jury, to determine.

The trial court also defined involuntary intoxication for the jury and charged the jury that Mathis could not be found guilty if at the time of the shooting, because of involuntary intoxication, he “did not have sufficient capacity to distinguish between right and wrong in relation to” the shooting. This was a correct statement of the law. The charges requested by Mathis were not an accurate statement of the law, and the trial court was not required to give them.

The argument advanced by Mathis has been rejected repeatedly and recently by our courts. See, e.g., Bright v. State, 265 Ga. 265, 277 (3) (455 SE2d 37) (1995) (rejecting reasoning in State v. Erwin, 848 SW2d 476 (Mo. 1993) that similar instruction impermissibly relieves State from proving intent). Although it is otherwise with regard to involuntary intoxication, the law in this state is that “voluntary intoxication does not excuse criminal responsibility. [Cit.]” Massey v. State, 270 Ga. 76, 78 (4) (508 SE2d 149) (1998).

In Horton v. State, 258 Ga. 489, 491 (8) (371 SE2d 384) (1988), the Supreme Court of Georgia held that voluntary intoxication was not a defense to a crime unless the intoxication resulted in altering brain function so as to negate intent, and even then the alteration must be more than temporary. Mathis offered no evidence at trial concerning such permanent alteration of his brain function. The trial court charged the jury carefully that intent was an essential element of the state’s case and that the state was required to prove intent beyond a reasonable doubt. When considered in conjunction with this charge on intent, the trial court’s charge on voluntary intoxication was correct and sufficient. Sydenstricker v. State, 209 Ga. App. 418, 419-420 (2) (433 SE2d 644) (1993).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

H. Samuel'Atkins, Jr., for appellant.

Dennis C. Sanders, District Attorney, for appellee.