text:
    A92A0785.
    JONES v. THE STATE.
    (423 SE2d 393)
   Birdsong, Presiding Judge.

Bobby Lee Jones appeals his conviction for armed robbery.

The victim’s car overheated and she drove to a gasoline station which was not a full-service facility. Appellant approached and offered to help and persuaded her to drive around to a faucet so he could put water in the car. The victim sat in the driver’s seat with her feet outside and her door open. Appellant got in the passenger seat and grabbed her right arm with his left hand and with his other hand pointed a knife at her. He said: “Just get in the car and drive.” The victim started screaming; appellant gripped her harder and again ordered her to drive. The victim kept screaming and pulling her hand away. Finally, appellant let her go and she got out of her car; she saw him grab her purse and run away. She ran screaming into the station and the cashier called the police. The cashier did not see the robbery but she knew appellant and she saw him offer to help the victim with her car. The victim picked appellant from a photo lineup and at trial identified him as the armed robber.

Appellant testified that he was at the scene and offered to help the victim; that he sat in the passenger seat and she agreed to give him a ride; that suddenly a man he knew as “Slim” reached across appellant’s lap; and that, wielding a butcher knife, Slim grabbed the victim’s purse and ran. Appellant testified that he ran because he had marijuana in his possession. Appellant enumerates four errors below. Held:

1. Appellant contends the trial court erred in allowing the State to introduce evidence of his character (see OCGA § 24-9-20) by permitting the prosecutor to trap him into revealing that he was on parole. He contends the prosecutor baited him by repeatedly asking why he ran, even after he testified that he ran because the victim was screaming and he had drugs on his person. The prosecutor asked whether it would have been logical for appellant to stay and give information about Slim; appellant said it would not. “Q. So it would have been smarter for you to run? A. Yes . . .1 don’t have anything to hide. I was already on parole, you know, so I did what I thought was best. ... I wasn’t going to stay there and catch a charge for something that I didn’t do. That’s why I ran. That’s my motive for running. If I hadn’t been on parole ... I would have easily just ran, ditch the reefer off, and came back and stood whatever would have happened. . . . But by being on parole, I wasn’t going to take no chances of doing it.”

Appellant cites three cases to prove the prosecution improperly forced him to admit he was on parole: Muzquiz v. State, 260 Ga. 547 (397 SE2d 703); Perry v. State, 154 Ga. App. 559 (269 SE2d 63); Brown v. State, 118 Ga. App. 617 (165 SE2d 185). However, Muzquiz is inapposite to this case. Brown involved questions “calculated to place before the jury ... a fact which under the rules of evidence” was inadmissible. Id. at 619. The prosecutor asked whether Brown was “ ‘gainfully engaged in private industry’ ” from 1947 to 1959; Brown said he had worked for the government. The prosecutor asked what branch of the government; Brown said “ ‘Federal Prison industry.’ ” Ultimately the prosecutor asked Brown where he had lived. Brown had to reply: “ ‘In the Federal Penitentiary.’ ” Id. at 618. This was overt questioning to which the only true answer was that Brown was in the penitentiary. In Perry, supra, the question was whether Perry was ever convicted of possession of marijuana; obviously this was in direct contravention of OCGA § 24-9-20.

The questioning in this case was directed at appellant’s reasons for his “flight,” which might have a bearing on the question of guilt. See Renner v. State, 260 Ga. 515, 516 (397 SE2d 683). Unlike the questioning in Brown and Perry, the questions here were calculated to reveal admissible evidence. They were not rendered improper by the fact that under close examination appellant volunteered that he was on parole. The questions themselves did not imply, or require appellant to admit, a prior conviction; the decision to do so rather than to stick to his original answer was appellant’s own. The questioning not being improper, objection to it and curative instructions were not required.

2. The trial court did not err in denying defendant’s motion for new trial oh grounds of ineffective assistance of counsel. To prevail on such a claim, appellant must show not only that trial counsel’s performance was deficient but also “ ‘that this deficient performance prejudiced his defense in that there is a reasonable probability that, but for counsel’s . . . errors, the outcome of the trial would have been different.’ ” Yearby v. State, 195 Ga. App. 757 (395 SE2d 29). Despite his allegations of incompetence, such as counsel’s failure to locate Slim or purported witnesses, appellant does not suggest there actually existed a particular witness who would have supported his defense; and the record shows counsel explored the possibility of locating “Slim,” but appellant did not cooperate in locating Slim as he agreed “Slim” would only deny the crime. Appellant asserts counsel should have made extensive investigation but only spent 20 hours on his case, but appellant does not suggest what such investigation would have revealed or how additional preparation might have helped him. Trial counsel did advise appellant as to the matter of whether he should testify. We find no error.

3. The trial court did not err in reading twice to the jury the statutory definition of armed robbery. The instruction did not, merely by being repeated, tend to imply the court believed appellant guilty of the crime. The court advised the jury that no comment of the court was intended to express an opinion as to appellant’s guilt. The definitions of the lesser included offenses were also repeated; there was in fact no undue emphasis of the definition of armed robbery. There was no incorrect statement of the law and the jury charge was full and fair as to the presumption of innocence, proof of intent, and the State’s burden of proof beyond a reasonable doubt. See Brown v. State, 197 Ga. App. 365, 366 (398 SE2d 424).

4. Appellant contends the trial court erred in failing to give a charge on appellant’s sole defense of mere presence, for “ ‘ [i]f an affirmative defense is raised by the evidence . . . the trial court must present the affirmative defense to the jury as part of the case in its charge, even absent a request.’ ” Wainwright v. State, 197 Ga. App. 43, 44 (397 SE2d 456). We find no error. Defendant’s contention that he was merely present at the scene is not an affirmative defense; “[r]ather, the rule that mere presence without more is insufficient to convict is really a corollary to the requirement that the state prove each element of the offense charged.” Muhammad v. State, 243 Ga. 404, 406 (254 SE2d 356). The pertinent principle is that “mere proof of the accused’s presence at the scene of the crime, without any evidence to show further participation in the commission of the crime, is insufficient to authorize a conviction.” Id. at 405. There was abundant direct evidence that appellant committed the crime; the necessity of proof of guilt beyond a reasonable doubt was fully charged to the jury and they could not have inferred they could convict appellant of the crime by his mere presence.

Decided September 8, 1992

Reconsideration denied October 6, 1992.

R. Stephen Roberts, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Jeffrey H. Brickman, Assistant District Attorneys, for appellee.

5. The evidence is sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crime of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Beasley and Andrews, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A92A0803.
    ADDLEY et al. v. BEIZER et al.
    (423 SE2d 398)
   Birdsong, Presiding Judge.

Appellants Bill Strange and Rick Addley, respectively president and secretary of Pure Sports, Inc. (PSI), appeal from a jury verdict and judgment holding them liable for a $30,000 obligation of PSI, based on a letter agreement made by PSI’s attorney, which gave the personal guarantee of Mr. Strange and Mr. Addley for PSI’s settlement debt to appellees Steve Beizer and Steve Beizer Sports, Inc. Appellees asserted that PSPs attorney Mr. Meier was the agent, i.e., the attorney, for Mr. Strange and Mr. Addley; and that under Georgia law established in Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544) as to apparent authority of attorneys, Meier’s agreement as to appellants’ personal guarantee is enforceable.

PSI was affiliated with Lotus Cars U.S.A., Inc. and sponsored Lotus cars in the 1990 racing season. By agreement with PSI, appellees were to provide pit crew service and transport the Lotus cars to racing events. The controversy underlying this debt arose in June 1990, when PSI informed Steve Beizer that it was dissatisfied with his facilities in Conyers, Georgia, and wanted the operation moved to Lotus facilities. PSI contended it paid all monies owing to Beizer, but Beizer refused to return the cars and demanded $37,000. PSI retained Meier to negotiate the return of the cars. Addley testified he learned from Meier that Beizer wanted his personal guarantee but that he did not agree to give it.

PSI’s attorney Meier sent a letter to appellees’ attorney on June 8, 1990, saying: “I am writing to confirm the following settlement among Pure Sports, Inc. (party of the first part), Steve Beizer and Steve Beizer Sports, Inc. (parties of the second part). The parties to the settlement agree that: (1) The party of the first part agrees to immediately pay [$7,000]. (2) The party of the first part agrees to pay the parties of the second part [$7,500] on July 1, 1990, August 1, 1990, September 1, 1990, and October 1, 1990. (3) The monetary obligations of the party of the first part as expressed herein shall be personally guaranteed by Messrs. Addley and Strange. ... (7) The parties to this agreement shall execute a mutual release of all claims and a compromise settlement agreement. . . subject to complete performance of the above terms. . . . Sincerely, [signed] William C. Meier.”

Appellees returned the cars and received $7,000 in a matter of days after their attorney countersigned this letter. The four payments of $7,500 were not forthcoming, and this suit was filed against PSI and against Strange and Addley to enforce their personal guarantee. Strange and Addley defended by stating that Meier was not their attorney and did not have authority to bind them to a personal guarantee.

As evidence that he was agent for Strange and Addley, in addition to Meier’s letter, appellees also point to Mr. Beizer’s testimony that he spoke to Addley and Addley “agreed to the whole agreement”; and to the fact that appellees returned the cars and accepted $7,000 in reliance on Meier’s agreement giving appellants’ personal guarantee for the remaining $30,000. Appellees’ attorney testified: “Mr. Meier never said to me, T have the personal authority of these two gentlemen [Strange and Addley] to make these promises.’ What he did say to me was, T will check with respect to the conditions that you want, I will get back to you.’ He got back to me agreeing to the conditions I demanded, sent me two confirming letters to that effect and held himself out to be a lawyer with the authority to compromise this matter, and I trusted him.”

The trial court denied appellants’ motions for directed verdict. The jury returned a verdict against Strange and Addley for $32,000. Held:

1. This is a case of first impression. One who serves as attorney for a corporation does not, by virtue of that fact, serve as attorney for the officers of the corporation in their personal capacity, and cannot by virtue of that fact bind the officers to a personal obligation for the debts of the corporation, for the corporation possesses a legal existence separate and apart from that of its officers individually. See Kilsheimer v. State, 250 Ga. 549, 550 (299 SE2d 733); Brega v. CSRA Realty Co., 223 Ga. 724, 725 (157 SE2d 738). In his representation of the corporation, the attorney will act at the direction of its officers, but this fact cannot give rise to an assumption by third parties that the attorney for the corporation represents its officers individually, because the officers individually have a separate existence as a matter of law. Id. We conclude, according to the authorities cited herein, that when an agent/attorney purports to give the personal guarantee of one client or alleged client for the debt of another client, or when he purports to act with his client’s or alleged client’s authority in a subject matter separate from or at conflict with his known actual authority, the agent’s actual authority to do those acts must be inquired into by the third party who seeks to rely upon them.

Appellees contend Meier had “apparent authority” under Brumbelow, supra, to bind Strange and Addley to a personal guarantee of PSI’s debt without a writing by Strange and Addley personally (id. at 676; compare OCGA § 13-5-30 (2)), based on the fact that Meier dealt for PSI at the direction of Strange and Addley, and on all the circumstances which led appellees to assume Meier was agent for Strange and Addley.

Strange and Addley assert that Meier was not their agent. Meier is not heard from in the case. Steve Beizer testified that in a conversation Addley “agreed to the whole agreement,” but the meaning of this statement in context is uncertain; it does not prove Addley knew what was in the “whole” agreement, and it is not clear whether this is merely Beizer’s conclusion. Beizer did not talk to Strange about this subject. Appellees’ claim against Strange and Addley therefore cannot rest on any acts of Strange and Addley, but rises and falls on the contention that Brumbelow, supra, allows appellees to rely on Meier’s “apparent authority,” based on his acts and representations. Strange and Addley contend the hearsay evidence of what Meier said and wrote to Beizer’s attorney should not have been admitted but, after all, Meier’s statements were offered not to prove their truth but to prove that Beizer’s attorney relied upon Meier’s promise of a personal guarantee of Strange and Addley. See OCGA § 24-3-1. In Brumbelow, reliance on representations or acts of that attorney was dispositive, not the truth of those representations or the authorization of those acts. We find, however, that Brumbelow has no application to this case.

“ ‘The bare . . . denial of the existence of an agency relationship is a statement of fact when made by one of the purported parties to the relationship. . . .’ ” Bishopsgate Ins. Co. v. Cactus Club, 176 Ga. App. 354, 355 (335 SE2d 685); Salters v. Pugmire Lincoln-Mercury, 124 Ga. App. 414 (184 SE2d 56). “An agency can not be established by proof of the declarations of the alleged agent. [Cits.] Persons dealing with an agent. . . for a particular purpose are bound to inquire as to the extent of his authority. [OCGA § 10-6-50.]” Harris Loan Co. v. Elliott &c. Co., 110 Ga. 302 (34 SE 1003).

The rule announced in Brumbelow giving attorneys “apparent authority,” which is “plenary . . . from the perspective of the opposing party” (id. at 675), applies only to an “attorney of record” (id.; see Uniform Superior Court Rule 4.2), that is, where the attorney is the attorney for the particular client and is actually authorized to represent the client in the cause or proceeding in which the third party seeks to bind him. (Compare OCGA § 15-19-7 which deals with a court’s right prima facie to assume an attorney is authorized to appear for a client and its authority to inquire into the fact; see also OCGA § 15-19-8.) See Vandiver v. McFarland, 179 Ga. App. 411 (346 SE2d 854) and see 7A CJS, Attorney & Client, § 214 at 374. The fact that an attorney may have actual authority to act for his client at the direction of another person does not mean the attorney is authorized to act as agent for that other person individually; the attorney’s actual authority is on its face to be “construed as confined strictly” (id.) to representation of his actual client. See OCGA § 15-19-8.

Nevertheless, appellees argue that the underlying principle of Brumbelow is that an attorney’s authority is that which the attorney purports to have in the circumstances, which in this case may be summarized pertinently as being that the attorney acted at Strange and Addley’s direction as to the affairs of PSI, and that Meier, in giving their personal guarantees for PSI’s debt, did so at their direction and did have “apparent” authority “from the perspective of the opposing party” to give their personal guarantee. Id. at 675.

This contention is mistaken. Application of the Brumbelow rule in principle to this case is inappropriate, for the rule of apparent authority created in Brumbelow is a significant departure from the actual agency rule of “apparent authority.”

In agency law, “ ‘ “[a]pparent authority is the power to affect the legal relations of another person by transactions with third persons, professedly as agent for the [principal], arising from and in accordance with the [principal’s] manifestations to such third persons.” . . . “Apparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe that the principal consents to have the act done on his behalf by the person purporting to act for him.” (Cits.)’ [Cit.]” Arrington & Blount Ford v. Jinks, 154 Ga. App. 785, 787 (1) (270 SE2d 27). “ ‘[A]n estoppel arises . . . against the denial of agency when a principal places a purported agent in a position of apparent authority so that a person of ordinary prudence conversant with business usages and the nature of the particular business is justified in assuming that such agent has the authority to perform a particular act and deals with the agent upon that assumption. (Cits.)’ [Cit.]” (Emphasis supplied.) Holcomb v. Evans, 176 Ga. App. 654, 655-656 (337 SE2d 435); Interstate Fin. Corp. v. Appel, 134 Ga. App. 407, 411 (215 SE2d 19).

“Apparent authority” is properly based on knowing conduct of the principal, not of the agent, and is moreover based on the third party’s reasonableness of relying upon it. In Home Materials v. Auto Owners Ins. Co., 250 Ga. 599, 601 (300 SE2d 139), the Supreme Court held: “ ‘ “The authority of an agent in a particular instance . . . may be established by the principal’s conduct and course of dealing, and if one holds out another as his agent, and by his course of dealing indicates that the agent has certain authority, and thus induces another to deal with his agent as such, he is estopped to deny that the agent has any authority which, as reasonably deducible from the conduct of the parties, the agent apparently has.’” [Cit.]” (Emphasis supplied.) That is, the principal is estopped to deny the agent has the authority “reasonably deducible from the conduct of [the] principal.” (Emphasis supplied.) Germain Co. v. Bank of Camden County, 14 Ga. App. 88 (1) (80 SE 302), cited in 20/20 Vision Center v. Hudgens, 256 Ga. 129, 134 (345 SE2d 330). “ ‘When an alleged principal, by acts or conduct, has knowingly caused or permitted another to appear as his agent, he will be estopped to deny the agency, to the injury of third persons who have in good faith and in reasonable prudence dealt with the apparent agent on the faith of the relation.’ [Cit.]” (Emphasis supplied.) Folsom v. Miller, 102 Ga. App. 232, 234 (116 SE2d 1). The principal’s estoppel to deny authority “arises only where the principal, by his conduct, places an agent in position of apparent authority to do the act [cits.]; or where ‘special circumstances’ exist which lead a third party reasonably to believe authority was present. [Cit.]” (Emphasis supplied.) Griggs v. Dodson, 223 Ga. 164, 169 (154 SE2d 252).

Where “[t]here were no manifestations of authority ... by the principal . . . apparent authority is not in issue,” (Trust Co. v. Nationwide Moving &c. Co., 235 Ga. 229, 232 (219 SE2d 162)), so in such a case the principal’s estoppel is based on “special circumstances” reasonably leading the third party to believe the authority existed. Special circumstances may include the “inherent power” in a particular agency relationship. Id. at 232-233.

Since in Brumbelow there were no manifestations of the principal except the mere hiring of the attorney, the rule in Brumbelow actually arises out of the “special circumstances” of an assumed “inherent power” of the attorney to dispose of his client’s legal or property rights without authority and over the client’s objection. However, the first cases which implied attorneys possessed such inherent power were actually cases involving the conduct and management of a case. See Dean v. Jackson, 219 Ga. 552 (134 SE2d 601), which cited Wade v. Powell, 31 Ga. 1, 22, which said an attorney had the power to refer a matter to arbitrators without the client’s consent, and then volunteered this broad statement: “And why should not this be so? An attorney may confess a judgment against his client, and this involves everything.” The other early case cited in Dean for this sentiment was decided in 1887, and involved an attorney’s consent to sell the property of a “married woman” to satisfy her husband’s debt. Williams v. Simmons, 79 Ga. 649 (7 SE 133). As to other early cases, see Davis v. First Nat. Bank, 139 Ga. 702, 706, 708-709 (78 SE 190); these were generally decided prior to the 1863 enactment of OCGA § 15-19-6. Id. at 706-707.

OCGA § 15-19-6 provides: “Without special authority, attorneys cannot receive anything in discharge of a client’s claim but the full amount in cash.” The full court in Evans v. Atlantic Nat. Bank, 147 Ga. 621 (3) (95 SE 219) held that under this Code section, an agreement by an attorney to compromise “raise[s] no presumption that the attorney was authorized by his client to make such settlement.” (Emphasis supplied.) See also Sonnebom & Co. v. Moore Bros., 105 Ga. 497 (1) (30 SE 947). This means an attorney is not a general agent for all purposes, but his authority is limited to the “particular purpose” for which he was retained and his authority to do other things must be inquired into; he is a special agent. OCGA § 10-6-50; Harris Loan Co., supra. He has no “inherent power” to dispose of his client’s property or legal right, but must obtain special authority. OCGA § 15-19-6; State Bar Disciplinary Rule 7-102 (A) (9). See Lewis v. Uselton, 202 Ga. App. 875 (416 SE2d 94), cert. denied; Vandiver v. McFarland, supra at 413; 30 ALR 944, 945; 7 AmJur2d, § 156; and 7A CJS, § 214. This want of inherent authority is known to all attorneys. As to the suggestion that an attorney has the right to assume another has such authority, the Justices in Davis, supra at 710, could only ponder its illogic: “It can not be readily understood how it can be held that a litigant has a right to insist that his case be litigated and not compromised, and that when he instructs his attorney not to compromise the case the latter is bound by such instructions, and is not at liberty to violate them; and yet how it can at the same time be held that if this want of authority on the part of the attorney is known to the other party or his attorney, such party can nevertheless bind the client by obtaining the agreement of an attorney without authority, who is known to be committing a breach of duty in making such agreement.”

In Evans v. Brooke, 182 Ga. 197, 207 (184 SE 800), the Supreme Court held that present OCGA § 15-19-5 “ ‘does not mean that when a client employs an attorney to bring or defend a suit, it ceases to be the client’s litigation, that he has no power to say whether he will litigate or compromise his suit, and that the attorney becomes the owner or absolute master of the litigation, so as to be able to sell or give away his client’s property rights by contract, in spite of his client. This is a very different thing from . . . agreements connected [with the management of the litigation].’ ” If the decision in Brumbelow is applied broadly, “occasions might arise where a client’s entire property involved in litigation might be agreed away, in spite of his protest, and he might be remitted to a suit [against his own attorney] by which nothing could be realized.” Davis, supra at 713.

Therefore, according to the decisions of the Supreme Court, we are not authorized to extend Brumbelow out of context of its facts. Controlling authorities require the circumstances as to the principal’s knowing acts, to be such as to lead the third party reasonably to believe the agent has authority to do a certain act. Griggs v. Dodson, supra; Folsom v. Miller, supra. In the case of a special agent, that is, an agent “for a particular purpose” (OCGA § 10-6-50), persons dealing with the agent must inquire into his authority. We particularly cannot extend the rule in Brumbelow to allow attorneys to rely on an “apparent authority” of other attorneys to act for a client other than the actual client.

In order for a third party to estop the principal from denying the agent’s actual authority or asserted inherent power (see Trust Co. v. Nationwide, supra at 232-233), it must appear that “ ‘a person of ordinary prudence conversant with business usages and the nature of the particular business is justified in assuming that such agent had authority to perform a particular act and deals with the agent upon that assumption.’ ” (Emphasis supplied.) Interstate Fin. Corp. v. Appel, supra at 411, quoting Commercial Credit Corp. v. Noles, 85 Ga. App. 392, 396 (69 SE2d 309); Holcomb v. Evans, supra. This rule coincides with the mandate at OCGA § 10-6-50 as to “special” agents.

It is a question to be decided under the facts of each case whether the complaining party is barred from obtaining relief because of his or her negligence in not ascertaining an agent had actual authority to enter the agreement. See 20/20 Vision Center v. Hudgens, supra at 134 (fn. 4), which was decided after Brumbelow, and which held it was an issue of fact “whether the [third party’s] negligence in not inquiring into the agent’s authority bars the [third party’s] requests for relief.” Id. at 134-135. The issue can be decided as a matter of law in this case because appellees and their attorney were charged with the duty stated in OCGA § 10-6-50 as to “special agents,” to examine the authority of Meier insofar as he purported to give the personal guarantees of Strange and Addley. Appellees were charged with knowledge as a matter of law that Meier dealt with Strange and Addley as corporate officers, and that the attorney for a corporation does not represent the officers individually, and cannot bind the officers individually for a debt of the corporation without creating a conflict of interest in himself. Particularly with knowledge of the facial conflict of interest created by Meier’s representations that he could bind the corporate officers to the corporation’s debt, appellees were charged with the duty to inquire of Strange and Addley not merely whether they “agreed” with the “whole agreement,” but whether Meier had actual authority to represent them and to give their personal guarantee. Appellees made no such inquiry, but relied instead on the circumstances surrounding Meier’s representations as to his own authority. This agreement by Meier cannot be enforced against Strange and Addley. Appellants were entitled to a directed verdict.

2. The ruling in Division 1 makes it unnecessary to address the remaining enumerations of error.

Judgment reversed.

Beasley and Andrews, JJ., concur.

On Motion for Reconsideration.

Appellees insist the existence of agency relations is always a question of fact; that every agency may be proved by circumstances and apparent relations; and that this verdict was supported by evidence, e.g., that appellants knew Meier was negotiating their personal guarantees with Beizer and failed to repudiate the agreement. But in the cited testimony, Addley said he never agreed to Meier’s letter giving my personal guarantee and that Meier had told him Beizer wanted personal guarantees, but he told Meier “there was absolutely no way that I was personally guaranteeing anything. . . . Q. Did you ever tell anybody that Mr. Meier represented you personally or that he was your lawyer in this? A. No, I would have told no one that. It was not the case.” Similarly, Strange testified he knew a personal guarantee was one of Beizer’s demands but he never told Meier to use it to negotiate, never agreed to pay the corporation’s debt, and never authorized Meier to give his personal guarantee.

There is no evidence appellees inquired of Addley and Strange as to Meier’s authority to bind Addley and Strange. It is dangerous to say that an attorney’s authority to compromise anyone can be established solely by ambiguous or circumstantial events as perceived by an opposing party. Meier was the special agent for Pro Sports, Inc., employed to obtain the release of its Lotus cars, and under OCGA § 10-6-50 appellees were required to examine his authority before relying on his promise of the personal guarantees of two other alleged clients. Appellees’ knowledge that Meier dealt with these persons as officers of Pro Sports made it more, not less, essential to examine his authority to give their personal guarantees. It is questionable whether an agreement to which only Pro Sports and a creditor were parties could even bind third parties to Pro Sports’ debt (see OCGA § 13-5-30 (2)); much less does it prove they were his clients.

Decided September 10, 1992

Reconsideration denied October 6, 1992

Schreeder, Wheeler & Flint, Debbie A. Wilson, for appellants.

Welch, Spell, Reemsnyder & Pless, Anne H. Collidge-Kaplan, Robert A. Burnett, for appellees.

Finally, appellees insist they had to rely on Meier’s “apparent” authority because ethics forbade them to contact appellants to inquire of his actual authority. This ironic assertion is based on Standard 47 of State Bar Rule 4-102, which states: “During the course of his representation of a client, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior written consent of the lawyer representing such other party or is authorized by law to do so.” This rule does not prohibit a lawyer from contacting a party whom he does not know to be represented by a lawyer “in that matter.” There is no ethics rule which prohibits attorneys from ascertaining actual authority of opposing counsel before relying on a compromise of an opposing party’s interests. Nothing prevented appellees’ attorney from seeking Meier’s “written consent” to contact Addley and Strange to confirm his authority. An attorney is always “authorized by law” to require an opposing party’s personal execution of a settlement and guarantee before the attorney accepts a compromise of that party’s interests from his alleged attorney.

Motion for reconsideration denied.


text:
    A92A0945.
    McGEE v. THE STATE.
    (423 SE2d 666)
   Birdsong, Presiding Judge.

Karl Howell McGee appeals from the verdict and sentence, and from the denial of his motion for new trial. Appellant was convicted of one count of child molestation of E. M., one count of rape of M. M., and one count of cruelty to children by hitting M. M., striking her when she refused to get in bed with him, and threatening to whip her if she told anyone about his sexual advances. E. M. and M. M. are appellant’s daughters.

At the time of the alleged incidents E. M. was age 12 and M. M. was age 14. At the time of trial E. M. was age 13 and was attending a special class for children with an I.Q. of 45 and below; M. M. was age 16 and was moderately mentally handicapped. Both children were living with appellant’s mother at trial time. On the witness stand, E. M. recanted and denied that appellant had sexually assaulted her; she admitted telling her teacher that appellant had touched her “private,” but claimed M. M. told her to say that; and she denied telling anyone that appellant sexually abused her. M. M. testified in the vernacular that appellant had penetrated her “private” with his penis and threatened to whip her if she told of his activity, but denied he had actually struck her. The State introduced two videotapes and an audio tape of the victims’ prior, out-of-court statements describing inter alia certain sexual acts perpetrated by appellant upon them.

Appellant enumerates 17 separate errors, several of which have sub-parts. Held:

1. The following general rules will be applied, as appropriate, in the disposition of this appeal:

(a) “[I]f evidence is duly admissible under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evidentiary theories.” Boatright v. State, 192 Ga. App. 112, 116 (6) (385 SE2d 298).

(b) On appeal the evidence must be viewed in the light most favorable to the verdict. Guffey v. State, 191 Ga. App. 501, 503 (3) (382 SE2d 202).

(c) Rules of evidence are framed with a view toward obtaining the “discovery of truth.” OCGA § 24-1-2. And, certain rules of evidence have been most liberally extended regarding sexual crimes, particularly those involving children. See, e.g., Oller v. State, 187 Ga. App. 818 (2) (371 SE2d 455).

2. E. M.’s schoolteacher, Ms. Allen, testified without objection to certain statements made by E. M. Appellant’s attorney elicited from Ms. Allen’s testimony that E. M. stated appellant was making her do certain things, that “ ‘he makes us [she and M. M.] go into the bedroom. We have to sleep with him, and he does things to my sister and myself.’ ” (Emphasis supplied.) Any issue relating to the admissibility of this testimony under OCGA § 24-3-16 was waived by appellant’s trial procedure and by his not taking any timely and specific objection thereto. Lawton v. State, 259 Ga. 855, 856 (2) (388 SE2d 691); Wilburn v. State, 199 Ga. App. 667, 669 (2) (405 SE2d 889).

3. As State’s Exhibit No. 1, a medical report, was admitted after “no objection” was posed by appellant’s counsel, appellant cannot complain of the report’s admission on appeal. See Bruce v. State, 259 Ga. 798 (2b) (387 SE2d 886).

4. Whether and when to allow a witness to be recalled for further examination rests in the sound discretion of the trial court. See Andrews v. State, 148 Ga. App. 709, 710 (252 SE2d 210). The trial court did not abuse its discretion in allowing M. M. to be recalled by the State to give additional testimony in order to form a better foundation for admission of her out-of-court statements to Detective Wade, though such procedure interrupted the presentation of the testimony of the detective who was on the stand as a State’s witness at the time of recall.

5. Appellant contends prejudicial error occurred when he was not allowed to cross-examine M. M. regarding whether she had ever run away from home. The record reflects that appellant acquiesced to the State’s objection and abandoned voluntarily that line of questioning, without obtaining a ruling as to the objection from the trial court. “Because counsel for the defendant agreed to proceed as requested by the state, there is no issue here for our review.” Easterwood v. State, 259 Ga. 164, 165 (2) (377 SE2d 857); compare Westwind Corp. v. Washington Fed. Sav. &c. Assn., 195 Ga. App. 411 (1) (393 SE2d 479).

6. Appellant asserts the trial court erred in instructing the jury that when an indictment charges that a crime was committed in more than one way, the State is not required to prove the commission of that crime in every way alleged but may prove the crime was committed in any one of the ways alleged. This is a correct statement of law. See, e.g., Gordon v. State, 199 Ga. App. 704, 705 (1) (406 SE2d 110) and cases cited therein. The indictment counts were read to the jury as part of the charge, and the indictment was given to the jury for their consideration during deliberation. We are satisfied, after examining the charges in their totality, no fair risk exists that the jury could be misled to believe they could apply this correct legal principle to any count in the indictment other than to Count 4, cruelty to children. There was no charging error.

7. Notwithstanding OCGA § 5-6-40, appellant’s enumeration of error number 13 asserts two separate errors therein, to-wit that the trial court failed to give a complete charge on the crime of rape and failed to charge the jury on constructive force. Exercising our discretion (Robinson v. State, 200 Ga. App. 515, 518 (2) (408 SE2d 820); compare Murphy v. State, 195 Ga. App. 878 (6) (395 SE2d 76)), we elect to review only the claim of lack of completeness of the rape charge and to treat as abandoned the claim of error based on a failure to charge on constructive force.

The trial court instructed that “in Count 3 of the indictment the defendant is charged with the offense of rape. Rape is defined by law as follows: ‘A person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will. Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.’ . . . If . . . you should find and believe beyond a reasonable doubt that. . . the defendant did . . . commit the offense of rape as charged in Count 3 of the indictment, you would be authorized to find the defendant guilty of that offense. . . . On the other hand, if you do not believe that the defendant is guilty of rape as charged in Count 3 of this indictment, or if you have any reasonable doubt as to his guilt of that offense, then it would be your duty to acquit the defendant of that offense.” (Emphasis supplied.) The court also instructed the jury inter alia as to Count 3 that “ ‘the grand jurors . . . further charge and accuse Karl Howell McGee with the offense of rape for that the said accused . . . did unlawfully have carnal knowledge of [M. M.], a female, forcibly and against her will.’ ” When examined in toto (Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177)), the charges reveal that not only was the jury given the statutory definition of rape (OCGA § 16-6-1), but was clearly instructed by the charges in their entirety of the existence of the rape elements of (1) carnal knowledge (by any penetration of the female sex organ by the male sex organ), (2) of a female, (3) forcibly, and (4) against'her will. We thus find that the charges given to the jury were adequate to instruct the jury not only as to the essential elements of rape, but also as to the particular averments contained within the rape count in the indictment. Further, the trial court did not err by failing to instruct the jury as to the definition of force. Garner v. State, 182 Ga. App. 251, 252 (2) (355 SE2d 451); compare Floyd v. State, 193 Ga. App. 17 (387 SE2d 16).

Phelps v. State, 192 Ga. App. 193 (384 SE2d 260) is factually distinguishable and not controlling.

8. Only after the charging of the jury did appellant enter two motions for mistrial as to two specific comments made to the jury by the State during its closing argument. No objections or mistrial motions were posed during argument when the trial court could have promptly and effectively taken any corrective action deemed necessary. “ ‘The time to object to improper closing argument is when the impropriety occurs at trial, when the trial judge may take remedial action to cure any possible error. . . . When no timely objection is interposed, the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of trial.’ ” (Emphasis supplied.) Tharpe v. State, 262 Ga. 110, 114 (16) (416 SE2d 78). Applying this test we are satisfied that the trial record reveals no reversible error. In this regard, the comment regarding the witness being the one whose house burned was merely a means to identify quickly in the jury’s mind to which witness the State was referring. Moreover, no reasonable inference-could be drawn from the State’s remarks that appellant had set fire to the witness’ house. The fact that her house had burned was a matter voluntarily and spontaneously revealed in the presence of the jury by the witness, and with no implication that the fire had been deliberately set by anyone. The State also remarked about the lack of appellant’s cross-examination of witnesses regarding whether someone other thaii the accused may have put his penis in M. M.’s vagina. We find appellant opened the door to this comment by his preceding closing argument that “if it was a penis, we don’t know whose penis it was. The defendant says it wasn’t his . . . and the only people who would know whether or not it was his would be the immediate family.” Moreover, contrary to appellant’s claim the rape shield law would not prevent him from bringing to the jury’s attention, either by direct or cross-examination, that someone other than appellant had been the one to rape M. M. (as was implied in his closing argument). The rape shield statute “precludes the introduction of evidence of the victim’s past sexual behavior. Obviously, a prior rape committed against the victim has nothing whatsoever to do with her past sexual behavior.” Raines v. State, 191 Ga. App. 743, 745 (2) (382 SE2d 738). Further, as the State did not make statements of prejudicial matters, within the meaning of OCGA § 17-8-75, the provisions of that statute are inapplicable.

9. Appellant asserts the trial court erred in allowing Detective Wade to testify repeatedly as to statements made to her by M. M. This error as enumerated is without merit.

At trial appellant objected to this testimony on the grounds that an exception to the hearsay rule applies only to a child witness who has not yet reached her fourteenth birthday at the time the out-of-court statement was made. Appellant also enumerates as error that the testimony concerning M. M.’s prior statements was admitted to impeach without proper foundation, and that such statements were being used to prove a crime. As these latter two enumerations were not timely raised by objection, at trial, appellant cannot now raise them for the first time on appeal. Lawton, supra at 856 (2); Norman v. State, 197 Ga. App. 333, 334 (2) (398 SE2d 395) (objection on a specific ground at trial waives any objection on other grounds on appeal); compare Penaranda v. State, 203 Ga. App. 740, 741 (2) (417 SE2d 683) with Horne v. State, 204 Ga. App. 81 (1) (418 SE2d 411) where a timely and specific objection was made. Likewise, no “improper bolstering” objection was preserved for consideration on appeal.

Where the veracity of a witness is expressly or impliedly at issue (M. M.’s veracity was so placed in issue during appellant’s cross-examination of her), and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible. Cuzzort v. State, 254 Ga. 745 (334 SE2d 661); Postell v. State, 200 Ga. App. 208, 210 (3) (407 SE2d 412). Once admitted in evidence such statements also are admissible as substantive evidence and are not subject to hearsay or impermissible bolstering objections. Postell, supra at 211; compare Carroll v. State, 261 Ga. 553, 554 (1) (408 SE2d 412).

Further, when the credibility and veracity of a witness, who is under oath and subject to cross-examination, is under express or implied attack, the State may show that the witness has made prior consistent statements, and such statements are admissible as substantive evidence. Gibbons v. State, 248 Ga. 858 (286 SE2d 717); Esco v. State, 199 Ga. App. 232, 233 (1) (404 SE2d 584).

Portions of M. M.’s out-of-court statement were admissible as prior inconsistent statements (for example, M. M. testified with a negative response when asked if her dad ever hit or struck her), and other portions were admissible as prior consistent statements (for example, M. M. testified that her dad had touched her private by inserting his penis therein and he also touched her private with something besides his penis). Appellant requested, after the trial court elected to admit testimony concerning the out-of-court statement, that the detective’s testimony be limited either to M. M.’s prior statements which were consistent or to those that were inconsistent with her testimony at trial. This request was not in the proper form of an objection or motion. See Gully v. Glover, 190 Ga. App. 238, 241 (4) (378 SE2d 411). Moreover, evidence is admissible if any legitimate grounds exist therefor (Boatright, supra), and thus both the prior consistent and the prior inconsistent portions of M. M.’s statement to Detective Wade were admissible. After the trial court ruled that both the consistent and inconsistent out-of-court statements were admissible and he would allow the testimony, appellant failed to make any form of timely motion or objection to preclude admission of those specific portions of the statement which were neither consistent nor inconsistent in content. Accordingly, the issue whether these particular portions of M. M.’s statement, if any, were admissible or whether they should have been excised (compare Carroll, supra at 554) has not been preserved for appeal. Lawton, supra; Norman, supra. And, in any event, we will not grant more relief than was requested at trial by appellant. See Harris v. State, 202 Ga. App. 618, 619 (3a) (414 SE2d 919).

Although, as above discussed, all types of foundation objections were waived at trial, we emphasize that, contrary to appellant’s assertions, surprise no longer is required to be shown to impeach one’s own witness by use of prior inconsistent statements. See generally Pryor v. State, 198 Ga. App. 588 (2) (402 SE2d 338).

10. Appellant asserts that the trial court erred in allowing the admission in evidence of the audio tape of a conversation he had with M. M. Appellant objected at trial to the admission of the tape on the grounds that it was taken when M. M. was 14 years of age, that he had not been provided with a copy of the tape prior to trial notwithstanding his timely motion for discovery, that some of the people listed on the tape were not present in court, and that it would improperly bolster the testimony of a live witness. All other grounds for objection, including but not limited to those relating to foundation and the adding of new evidence, not having been timely and specifically raised at trial are waived. Lawton, supra; Norman, supra.

After hearing the audio tape outside the presence of the jury, the trial court admitted the tape, but informed appellant it would make both M. M. and E. M. available for further cross-examination if requested. As the trial court gave appellant an opportunity to hear the tape before allowing it to be played by the jury, there was no Brady violation. “Brady [v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215)] is not violated when the Brady material is available to the defendant during trial, since Brady does not require a pre-trial disclosure of the materials.” Glenn v. State, 255 Ga. 533, 534 (2) (340 SE2d 609). Following admission of the tape, appellant’s motion for directed verdict of acquittal as to Count 2, child molestation of M. M., was granted: However, we cannot agree with appellant that the evidence contained in the tape relevant to the touching of M. M.’s genitalia would have been rendered inadmissible if pretrial disclosure of the tape had been made to appellant and, as a result, the molestation charge had been dismissed before trial. First, such argument requires this court to engage in a series of speculations not supported by the record. Additionally, certain of this evidence would have remained duly admissible as part of the res gestae (OCGA § 24-3-3), and the balance of the statement pertaining to the molestation of M. M. would have been admissible as proof of similar crimes to show appellant’s motive, intent, bent of mind and lustful disposition toward her. See generally McGowan v. State, 198 Ga. App. 575, 577 (2) (402 SE2d 328); Oller, supra at 818 (2). Thus, as M. M. still could have been recalled by the State and examined over these happenings, her testimony that appellant had touched her private with something in addition to his penis would have remained subject to being corroborated by proof of her out-of-court, consistent taped statement. See Esco, supra at 233.

Appellant’s remaining contentions, which were not waived at trial by failure to make specific and timely objection, have been adversely decided against him in Division 9 above. The tape was admissible as substantive evidence. Cuzzort, supra; Gibbons, supra.

11. Appellant’s contention that the trial court erred in allowing the jury to hear again, after commencing deliberation, the audio tape of M. M., is without merit. The tape was admissible as discussed in Divisions 9 and 10 above. The trial court did not abuse its discretion in allowing its replay. Stephens v. State, 261 Ga. 467, 468 (4) (405 SE2d 483).

12. Appellant’s assertion that the trial court erred in allowing the videotape of the interview of M. M. in evidence is without merit. At trial appellant timely objected to the admission of the tape only on the grounds that M. M. was 14 years of age when the interview occurred (thus tacitly claiming no hearsay exception existed as to the statement). Accordingly, all other objections, including but not limited to improper bolstering, lack of adequate foundation, and double hearsay (statement attributed to E. M. in M. M.’s tape) were waived. Lawton, supra; Norman, supra. Appellant’s remaining arguments have been resolved against him. See Division 9 above. The videotape of M. M. was admissible. Cuzzort, supra; Gibbons, supra.

13. Appellant’s assertion that the trial court erred in allowing the videotape of the interview of E. M. to be admitted in evidence, because of lack of proper foundation and double hearsay (hearsay statement of M. M.), is without merit. Appellant made neither of these specific objections to the admission of the tape at trial. Thus, these grounds were waived and cannot be considered on appeal. Lawton, supra; Norman, supra.

14. The trial court did not commit error in charging that “should you find that any witness, prior to his or her testimony . . . has made any statement inconsistent with or to his or her testimony ... and that such prior inconsistent statement is material to the case and the witness’ testimony, then you are authorized to consider same not only for purposes of impeachment, but as substantive evidence in the case.” The charge was not misleading and correctly stated the law. Compare Cuzzort, supra with Gibbons, supra.

15. Appellant contends inter alia that the record is void of any evidence from which a reasonable inference can be drawn that appellant had carnal knowledge with his daughter, M. M., forcibly and against her will. We disagree. The various out-of-court statements of M. M. were duly admissible as above discussed, and provided substantive evidence from which the jury could find the essential elements of both rape and cruelty to children. M. M. testified inter alia at trial that her father had placed his penis within her vagina, and that she told two ladies her father had sex with her. This conversation was recorded. The defense elicited from her that she got raped when living with her father. Detective Wade testified that M. M. told him that “she told her dad she did not want that thing in her body, [that her dad] was having sex with her, [and that he would] whip her with a belt if she refused to get into bed with him.” (Emphasis supplied.) In the videotape of M. M., she stated: “I tell him no. I say, ‘You [are] going to make me pregnant.’ . . . But he won’t leave me alone, so he grabbed my hand. . . . And then he . . . grabbed me in there and told me to pull my clothes off and got on top of me . . . and started doing sex with me . . . and I told him, ‘Get off of me!’ and he said no.” (Emphasis supplied.) She further stated that her father “put his [penis] in my private, and that’s when he would have sex with me. ... I told him to get off, and I’d say, T don’t want to have sex with you.’ ” (Emphasis supplied.) Thus, the jury could reasonably infer appellant had carnal knowledge with his daughter, M. M., by force and against her will. Compare Carroll, supra at 554 (1) with Gross v. State, 259 Ga. 627, 629 (4) (385 SE2d 674) (tape admissible under Gibbons, supra, where defendant did not fully admit making all the statements contained on the tape). The record also contains substantive evidence that appellant molested his daughter, E. M., notwithstanding her recantation of such events on the stand. For example, the defense induced testimony from E. M.’s teacher, Ms. Allen, that appellant touched E. M. in a way in which she was not comfortable, that he made M. M. and her go into the bedroom and sleep with him and that he does things to her sister and herself. In her videotape interview, E. M. stated her father, the appellant, touched her in her private with his hand.

Decided September 8, 1992

Reconsideration denied October 6, 1992

Adele P. Grubbs, Amelia G. Pray, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

On appeal an appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

16. Appellant contends the trial court erred in denying his motion for new trial. For all the reasons above discussed, we disagree. There was no reversible error committed in the trial of this case.

Appellant’s remaining unaddressed contentions in support of his enumerated errors also are without merit, and the authority he relies upon is not controlling.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A1044.
    MROZINSKI v. POGUE.
    (423 SE2d 405)
   Birdsong, Presiding Judge.

Anthony Mrozinski appeals from the grant of summary judgment to defendant Robert H. Pogue in Mrozinski’s suit for wrongful disclosure of privileged information and breach of confidential relations. Dr. Pogue, as attending psychiatrist, treated Mrozinski’s 14-year-old daughter for drug addiction and other mental health problems while she was a patient at Ridgeview Institute in Cobb County. The child’s drug use began while she was in the custody of her mother. Legal custody of the child was placed in Mrozinski; she moved to Atlanta to live with him and to receive psychiatric treatment. In August 1987, Mrozinski admitted his daughter to Ridgeview Institute and, with her, he participated in therapy with Dr. Pogue. Mrozinski contends Pogue gave privileged information to the attorney of his former wife for use in a custody suit. Pogue contends he gave this information to the child’s mother’s attorney at the request of the child. There was no legal proceeding authorizing disclosure of the information. The information given to Mrozinski’s former wife’s attorney consisted of the “Discharge Summary” prepared for Ridgeview Institute by the attending psychiatrist (Pogue) and an affidavit given by Dr. Pogue. The discharge summary and the affidavit described Mrozinski’s conduct and reactions during family therapy, contained Pogue’s observations and conclusions as to the interaction between Mrozinski and his daughter during family therapy, and expressed negative criticism of the father’s conduct and reactions during therapy. In his affidavit Pogue recommended that custody of the child be returned to the mother.

The discharge summary was prominently stamped “Confidential — Do Not Redisclose.” Mrozinski dismissed his suit against Ridgeview Institute. At the hearing on Pogue’s motion for summary judgment, Pogue contended that the 14-year-old child was the only patient; that Mrozinski was not his patient; that Mrozinski attended family therapy only for the benefit of the child and to facilitate her recovery. Pogue contends that no privilege existed between himself and Mrozinski and that the only privilege belonged to the child. Secondly, Pogue contends Mrozinski does not have standing to complain of disclosure of psychiatric records of his daughter because the child requested that Pogue give an affidavit and her hospital record to her mother’s attorney, and the child later, upon reaching the age of majority, executed a release of the records. Held:

1. On motion for summary judgment the burden is on the movant to establish the lack of a genuine issue of material fact and the right to judgment as a matter of law (OCGA § 9-11-56 (c)); any doubt as to the existence of an issue is resolved against the movant and the respondent is given the benefit of all doubts and favorable inferences that may be drawn from the evidence. Holland v. Sanfax Corp., 106 Ga. App. 1, 4-5 (126 SE2d 442); and see Thacker v. Matthews Tuxedo, 183 Ga. App. 474, 475 (359 SE2d 231). The court does not resolve issues of fact, but merely determines whether there is an issue of fact. Shankweiler v. McCall &c. Ltd., 183 Ga. App. 257, 258 (358 SE2d 657). Construing the evidence according to these rules, we find issues of fact exist whether Mrozinski was a patient of Dr. Pogue.

“Before the psychiatrist-patient communications privilege established by [OCGA § 24-9-40] may be invoked, the requisite relationship of psychiatrist and patient must have existed, to the extent that treatment was given or contemplated.” (Emphasis supplied.) Massey v. State, 226 Ga. 703, 704 (4) (177 SE2d 79); see Fulbright v. State, 194 Ga. App. 827 (392 SE2d 298). The evidence, construed most favorably to Mrozinski, shows he consulted Pogue for treatment and assistance for himself in his family relations, particularly with his daughter. He sought assurance from Pogue that the therapy sessions would be confidential and he relied on these assurances by joining in the therapy with his daughter, and in reliance on those assurances he communicated freely with Pogue.

Pogue in his affidavit asserts that Mrozinski was not his patient. However, this is an assertion of a conclusion of law or of the ultimate fact to be decided, and it does not entitle Pogue to summary judgment. Resolute Ins. Co. v. Norbo Trading Corp., 118 Ga. App. 737 (165 SE2d 441). Pogue also relies heavily on Mrozinski’s testimony that treatment and recovery of his daughter were his first priority. However, the very use of the word “priority” gives rise to the inference there were other objectives in Mrozinski’s participation in family therapy. In the affidavit which is the subject of this suit, Dr. Pogue stated: “It would be my recommendation that the father continue in the therapy process himself and begin to focus on his issues separate from [his daughter].” (Emphasis supplied.) This statement, with all inferences drawn in favor of Mrozinski, indicates that some therapy was begun as to Mrozinski during these sessions. The fact that Mrozinski was charged an additional fee when he participated in family therapy with his daughter is not controlling on the issue whether Mrozinski was a patient, but it may be considered by the jury. This is not a case such as Fulbright, supra, and Rachals v. State, 184 Ga. App. 420 (361 SE2d 671), for it cannot be said from the evidence in this case that no treatment was sought or contemplated by Mrozinski for himself.

Appellee contends that the Supreme Court in Kimble v. Kimble, 240 Ga. 100, 101 (239 SE2d 676) announced a new precise rule, to wit, that the psychiatrist-patient relationship exists only where the patient “went to the psychiatrist on [his] own volition for the purpose of gaining professional psychiatric assistance.” Appellee’s assertion is incorrect. Kimble did not state what was necessary but what was sufficient to form the privileged relationship in that case. It may be irrelevant whether a patient sought out a psychiatrist “on [his] own volition”; and a patient who did not originally seek psychiatric treatment for himself may nevertheless end up contemplating or being given assistance by the psychiatrist. The standard established in Massey, supra, is the test: the relation exists “to the extent that treatment was given or contemplated.”

Appellee contends that any communication to Pogue from Mrozinski lost its privileged status where Pogue treated Mrozinski and his daughter jointly. The trial court seemed to be of the opinion that the privilege is waived by patients being treated jointly, and appellee likens the situation to clients being jointly represented by one attorney. We cannot accept these arguments. A waiver in a joint legal representation is really a waiver of the attorney’s conflict of interest as to clients with antagonistic legal interests, and those clients’ confidences are not generally waived as to third persons anyway. That situation cannot be likened to a psychiatrist’s joint treatment of family members for their mutual benefit or for the primary benefit of one of them. The psychiatrist-patient privilege is not diminished by the fact that the patient sought or contemplated treatment jointly with other persons, or primarily for the benefit of another person who is in treatment by the same psychiatrist. The object of the privilege is to encourage the full trust of the patient so as to persuade him to reveal his innermost feelings and private acts so that the psychiatrist may give the most effective treatment. Perhaps nowhere is the patient more reluctant to reveal his true feelings and thoughts than in family therapy; for that very reason the viability of the privilege is essential. The privilege may be particularly important where the psychiatrist, in treating one person and knowing of another’s deep concern for that person, encourages him to participate in therapy with the original patient. The strongest public policy considerations militate against allowing a psychiatrist to encourage a person to participate in joint therapy, to obtain his trust and extract all his confidences and place him in the most vulnerable position, and then abandon him on the trash heap of lost privilege. Legal remedies exist to allow the psychiatrist to properly divulge information where he or she believes a patient is in danger from another patient, so any such perceived danger is not sufficient reason to say the privilege evaporates merely because of a person’s participation in joint therapy.

We find no waiver of privilege by Mrozinski’s participation as a patient, if he was one, and we find clear issues of material fact exist as to whether Mrozinski was given or contemplated psychiatric assistance by Pogue.

2. Appellee contends that no privileged information was disclosed because he did not reveal any statements made by Mrozinski, and that the “communications” (OCGA § 24-9-21 (5)) protected by the privilege do not include observations, opinions and conclusions of the psychiatrist. Plummer v. State, 229 Ga. 749, 750 (194 SE2d 419) does not control this question because that doctor’s conclusions were excluded by court order. OCGA § 24-9-21 (5) makes privileged not only “communications” but also “admissions.” What is protected is not merely words spoken, but “ ‘disclosures made in confidence.’ ” See Annandale at Suwanee v. Weatherly, 194 Ga. App. 803, 804 (392 SE2d 27). Since the legislature has not been more specific as to what constitutes an “admission” or “communication,” we are reluctant to say anything which would allow a psychiatrist to reveal indirectly what he may not reveal directly, or to reveal a communication by couching it as an inference, evaluation, observation or conclusion. In Freeman v. State, 196 Ga. App. 343, 344 (396 SE2d 69), the defendant’s psychiatrist testified he found the defendant to be suffering from major psychiatric disorders. It was established that the defendant had not waived his privilege. The trial judge “refused to permit the psychiatrist to testify as to the patient’s mental illness without a written waiver or without oral testimony under oath that the patient waived the claim to confidential communication.” (Emphasis supplied.) The trial court’s instinct was that the patient had a privilege even in the doctor’s conclusion that the patient had psychiatric disorders. We were unable to say that instinct was wrong and will not say so now. “[I]nformation [which] originated as communications from [the patient]” may be privileged. (Emphasis supplied.) Johnson v. State, 254 Ga. 591, 597 (331 SE2d 578). See also Cranford v. Cranford, 120 Ga. App. 470, 473 (3) (170 SE2d 844). We note that the legislature’s pronouncements in OCGA §§ 37-3-166 (a) and 37-7-166 (a) as to disclosure of clinical records of persons receiving hospital treatment for mental illness and substance abuse are that “[a] clinical record for each patient shall be maintained . . . and no part of it shall be released.” (Emphasis supplied.) Even when clinical records are properly disclosed pursuant to these Code sections, such authorization shall not permit disclosure of “matters privileged under the laws of this state.” OCGA §§ 37-3-166 (a) (8); 37-7-166 (a) (7). We conclude that Georgia law has an exceedingly strict view as to what are privileged “communications.” Whether appellee Pogue has breached the confidential relation and disclosed privileged information as to Mrozinski is a question for the jury. A mixed question of law and fact is ordinarily one for the jury and should not be determined by the court as a matter of law except in plain and palpable cases. See Trulove v. Trulove, 233 Ga. 896, 898 (213 SE2d 868).

3. Appellee contends appellant has no standing to sue for unauthorized release of his minor daughter’s mental health treatment records. Appellee released the hospital discharge summary and his own affidavit to Mrozinski’s former wife’s attorney for use in custody litigation, at the verbal, not written, request of Mrozinski’s daughter.

OCGA § 24-9-40, as amended, provides “any physician, hospital, or health care facility releasing information under written authorization or other waiver by the patient, or by his or her parents or guardian ad litem in the case of a minor . . . shall not be liable to the patient or any other person. . . . This Code section shall not apply to psychiatrists.” The release of such information by a psychiatrist is governed by other laws, as follows.

OCGA § 37-3-166 provides for maintenance, confidentiality and release of clinical records as to persons treated in hospitals for mental illness. Subparagraph (a) provides: “A clinical record for each patient shall be maintained . . . and no part of it shall be released except . . . (5) The record shall be released to the patient’s attorney if the attorney so requests and the patient consents to the release.” (Emphasis supplied.) According to this statute, without regard to the nature of the material contained therein, no part of clinical records shall be released. Therefore, all of the clinical records of Mrozinski’s daughter are protected from disclosure. This includes the attending psychiatrist’s affidavit based on those clinical records. This statute does not require the patient’s consent to be in writing and this patient’s consent was not in writing; however, the exception permits such release only to the “patient’s attorney.” The clinical records and the attending psychiatrist’s (Pogue’s) affidavit were revealed not to the “patient’s attorney,” but to the attorney of the patient’s mother. This contravenes the absolute prohibition generally established by the statute on disclosure of these records.

OCGA § 37-7-166 establishes similar prohibitions on disclosure of clinical records of patients receiving treatment in hospitals for substance abuse. Subparagraph (a) provides: “A clinical record for each patient shall be maintained . . . and no part of it shall be released except... (1) A copy of the record may be released to any person or entity designated in writing by the patient or, if appropriate, by his parent or guardian.” (Emphasis supplied.) Under this statute, Mrozinski’s daughter’s clinical records could have been released to her mother’s attorney, but only if such a designation was made in writing by the patient or, since she was a minor, by her mother. This statute would allow a non-custodial parent to obtain clinical records “if appropriate,” which avoids the problem perceived by appellee and the trial court that a custodial parent could conceal his or her own bad conduct towards the child by preventing disclosure of clinical records to the other parent. The disclosure of clinical records to the patient’s mother’s attorney was not authorized in writing by the patient and was not authorized by her mother or father, and was therefore unauthorized under OCGA § 37-7-166 (a) (1).

Subparagraph (a) (4) of § 37-7-166 would have authorized disclosure of the clinical records and the attending psychiatrist’s affidavit to the patient’s attorney if the patient consented to the release. The patient consented to this release, but the release was not made to the patient’s attorney; it was made to her mother’s attorney. Disclosure of this material was therefore unauthorized under § 37-7-166 (a) (4). The release of clinical records and the attending physician’s affidavit based thereon were therefore unauthorized.

Appellee contends the disclosure was authorized because the child was 14 years old and was allowed by OCGA § 19-9-3 to choose the parent with whom she wished to live. However, this is no more than an assertion that the particular reason the child consented to the release should control whether the release was authorized. This assertion is not supported by the statutory structure and is without merit.

Appellee contends that in any case Mrozinski may not recover for unauthorized release of these records when the child was 14 because later, as an adult, she approved the release after the fact. Appellee likens this situation to contracts entered by minors which are merely voidable but not void, and he says the minority of an individual does not in and of itself prohibit that individual from entering a contract. See Buffington v. State Auto. Mut. Ins. Co., 192 Ga. App. 389 (384 SE2d 873); see generally OCGA §§ 13-3-20 through 13-3-23. However, these are not analogous situations. In the case of clinical records and privileged information, the harm sought to be prevented by the strict requirements as to disclosure is, in the case of minor children, an immediate harm which cannot be remedied by an authorization after the fact. A rule permitting unauthorized disclosure of such material so long as the minor child later approves the release is not one of the exceptions named in OCGA §§ 37-3-166 and 37-7-166. Such a rule would denude the public policy against such disclosure of clinical records and privileged material, and would operate to place undue pressure on child mental health patients while they are being treated and on all mental health patients long after their right to be protected from unauthorized disclosure of privileged material was violated.

Accordingly, we conclude that as parent of the minor child, appellee Mrozinski has standing to file suit for unauthorized disclosure of his daughter’s clinical records in violation of §§ 37-3-166 and 37-7-166.

4. Mrozinski has standing to complain of the unauthorized release of material made privileged by OCGA § 24-9-21 (5) as to his minor daughter, at least for the reason that such release was not authorized by one of the child’s parents. See OCGA § 24-9-40 which by its terms does not apply to psychiatrists but which provides insight into the legislative view of disclosure of confidential “medical” information which is presumably of a lesser degree of privileged status than information possessed by psychiatrists and hospitals treating mental illness.

Decided September 11, 1992

Reconsideration denied October 6, 1992

Paul S. Weiner, for appellant.

Downey, Cleveland, Parker, Williams & Davis, Russell B. Davis, Houston D. Smith-III, for appellee.

The trial court erred in granting summary judgment to appellee Pogue, as issues of material fact remain.

Judgment reversed.

Beasley and Andrews, JJ., concur.


author: Johnson, Judge. Carley, Presiding Judge,

text:
    A92A0994.
    DANIEL v. THE STATE.
    (423 SE2d 432)
   Johnson, Judge.

Norman Daniel was indicted for the offenses of aggravated assault, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. Following a bifurcated jury trial, Daniel was convicted on all three counts. A motion for a new trial was denied. He appeals his conviction.

1. Daniel’s trial counsel filed a motion to remand this case to the trial court on the issue of ineffective assistance of counsel. This extraordinary motion was filed as a result of a grievance filed by Daniel with the State Bar of Georgia on May 27, 1992, four months after a motion for new trial was denied and more than three months after the appeal was docketed. Ineffective assistance of counsel was not raised as an issue in the motion for new trial, nor is it an issue in the appeal.

In Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986), the Supreme Court began remanding claims of ineffective assistance of counsel to the trial court when that issue was raised for the first time on appeal. This procedure was favored in that a claim could be “promptly resolved by the judge who presided over the trial as opposed to having it resolved by a habeas court somewhere down the road.” Lloyd v. State, 258 Ga. 645, n. 1 (373 SE2d 1) (1988). See also Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991).

In this case, however, the issue of ineffective assistance of counsel is not before this court as an issue on appeal. Jurisdiction has vested in this court on the issues raised in the appeal. The scope of the appeal cannot be enlarged at this late date. The State Bar of Georgia will certainly fully investigate this matter. In the event that it finds that a basis for assertion of a claim of ineffective assistance of counsel is viable, post-conviction remedies, though cumbersome, are available for Daniel to pursue. The motion for remand is denied.

2. Daniel alleges that the trial court erred in refusing to charge the jury on the affirmative defense of justification. We disagree. Daniel testified in his own defense at trial. When defense counsel inquired how many shots were fired during a “tussle” with the victim, Daniel testified: “Just one shot when the gun, it fell on the ground. It just fired . . . Nobody pulled the trigger.” It is clear from this testimony that Daniel was relying on the defense of accident rather than self-defense or justification. “The defenses of self-defense and accident are inconsistent. [Cit.]” Wilkerson v. State, 183 Ga. App. 26, 28 (3) (357 SE2d 814) (1987). Daniel denied having the gun in his possession or firing it. “ ‘A request to charge must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence-.’ [Cit.]” (Emphasis supplied.) Grant v. State, 197 Ga. App. 878, 880 (2) (399 SE2d 743) (1990). There is no evidence in the record which supports a theory of self-defense or justification. The trial court correctly refused to give the requested charge.

3. Daniel asserts in his second, third, and fourth enumerations of error, that the trial court erred in refusing to allow evidence of specific acts of violence by the victim against Daniel and against a third party. The alleged acts of violence occurred after the incident for which Daniel was tried. Daniel relies on Chandler v. State, 261 Ga. 402 (405 SE2d 669) (1991). In Chandler, the Georgia Supreme Court changed the prior rule prohibiting evidence of specific acts of violence by the victim. The new rule holds that “evidence of specific acts of violence by a victim against third persons shall be admissible where the defendant claims justification.” (Emphasis supplied.) Id. at 407. As discussed in Division 1 above, a defense of justification is not supported by the evidence in this case. Further, in Chandler, the violent act which the court erred in excluding occurred prior to the crime being tried. Any altercation between Daniel and the victim or between the victim and a third party following the date of the events which comprise the elements of this case would not be relevant.

Judgment affirmed.

Carley, P. J., and Pope, J., concur. Carley, P. J., also concurs specially.

Carley, Presiding Judge,

concurring specially.

I concur fully in Divisions 1 and 2 of the majority opinion. I also concur in the majority’s conclusion in Division 3 that the new rule announced by the Supreme Court of Georgia in Chandler v. State, 261 Ga. 402 (405 SE2d 669) (1991) does not apply in this case because the evidence raised no viable defense of justification by the defendant.

Decided October 6, 1992.

W. Edward Nethery, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Elisabeth G. MacNamara, Jeffrey H. Brickman, Assistant District Attorneys, for appellee.

However, I do not agree with the further holding of the majority that “[a]ny altercation between [the defendant] and the victim or between the victim and a third party following the date of the events which comprise the elements of this case would not be relevant.” I do not believe the Chandler rule applies only to acts occurring prior to the date of the alleged crime with which the defendant is charged. Although Chandler itself is silent on this issue, the Supreme Court in Chandler based its new rule on Justice Weltner’s concurrence in Lolley v. State, 259 Ga. 605, 607-610 (385 SE2d 285) (1989). As is made clear in that concurrence, the knowledge of the victim of the defendant’s propensity to do violence at the time of the incident at issue is not necessarily determinative. In one of the examples given by Justice Weltner in Lolley, a “ruffian approaches a stranger, and is killed by him. There are no eyewitnesses to the homicide. The defendant relates that the decedent advanced upon him in a drunken and enraged state, threatening him with mayhem. The decedent had no weapon. At trial, the defendant, who had no knowledge of the decedent before the killing, offers evidence of his violent nature, through specific acts of violence against third persons. Here the principal question is the credibility of the defendant. Did it happen the way he related it? And why would the decedent make an unprovoked advance upon the defendant?” (Emphasis supplied.) Lolley v. State, supra, 609 (3 [b] [ii]). (Concurrence of Justice Weltner.) Thus, if the procedural and substantive requirements of Chandler are otherwise met, I believe that evidence of violent acts by a victim are admissible, regardless of when they occurred.


author: Johnson, Judge.

text:
    A92A1240.
    A92A1317.
    ROGERS v. THE STATE. TOWNSEND v. THE STATE.
    (423 SE2d 435)
   Johnson, Judge.

Robert Lee Townsend and Lee A. Rogers were indicted for armed robbery; Rogers was also charged with giving a false name to an officer. Tried jointly, they were convicted on all counts and appeal.

The 70-year-old victim, William McNeese, was working in his yard at 9:00 a.m. when two men approached him. The taller man “jerked” a gun in front of McNeese’s face while the second man, who McNeese described as having facial hair and a smaller build, ran around behind McNeese and took his wallet containing cash, his checkbook, and keys from his pockets. He described the gun as black or dark in color. Telling McNeese to go inside his house, the two men walked off in the direction of a corner grocery and diner. McNeese and his wife immediately notified the police. A witness who was working at a nearby produce stand that morning observed either a Ford Granada or a Mercury Monarch with two males inside drive very slowly back and forth in the vicinity of the McNeese residence. Within ten minutes of learning of the robbery, he reported this to the police. A lookout was posted and a deputy of the Catoosa County Sheriff’s Office spotted a vehicle which matched the description going west on Highway 2. Calling for a backup, he followed the car into a convenience store parking lot and told the occupants they were under arrest. Upon searching the interior of the vehicle the officers found a loaded .22 caliber dark blue steel pistol under the front passenger seat and McNeese’s checkbook on the front seat. Less than 30 minutes after he was robbed, McNeese was taken to the convenience store and positively identified both men as the perpetrators. At trial he again identified Rogers as the man who rifled his pockets and Townsend as the one who held the gun.

1. Both appellants assert that the State failed to carry its burden of proving that McNeese’s in-court identification was not tainted by his prior one-on-one identification. Thus, they argue, the trial court erred in allowing McNeese to make an in-court identification. They argue that the showup was impermissibly suggestive because the evidence showed McNeese had been informed the perpetrators had been caught and further because they saw his checkbook in the police car before he made his identifications. Finally, they assert that such a showup was unnecessary, as no specific emergency existed at the time. However, we find there was no substantial likelihood of irreparable misidentification, and therefore no reversible error.

“ ‘Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. The totality of the circumstances must be viewed to determine if there is a “likelihood of misidentification which offends against due process and ‘the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation.’ (Neil v. Biggers, 409 U. S. 188, 199 (93 SC 375, 34 LE2d 401) (1982).)” [Cit.]’ [Cit.]” Hood v. State, 199 Ga. App. 774, 775-776 (406 SE2d 120) (1991). “Although the practice of showing suspects singly to a witness for identification purposes has been widely condemned, [cit.], ‘our appellate courts have consistently upheld the admission of in-court identifications when prior one-on-one showups are reasonably and fairly conducted at or near the time of the offense. (Cits.)’ [Cit.]” Baines v. State, 201 Ga. App. 354, 357 (4) (411 SE2d 95) (1991). Accord Andrews v. State, 201 Ga. App. 329, 330 (1) (411 SE2d 52) (1991); McCoy v. State, 190 Ga. App. 258 (3) (378 SE2d 888) (1989).

The robbery here occurred in bright daylight and neither perpetrator had his face hidden or covered. The victim noted that the gunman was taller and the one who removed his possessions from his pockets was slighter and had a beard. Less than two months later at trial he made positive in-court identifications of each defendant. The pistol, as he described it, was found in the suspects’ car. Here, as in Hood, supra, “[e]xcept for the passage of time, the so-called show-up in this case was somewhat akin to an immediate on-the-scene confrontation between the victim and a suspect. Considering the relevant factors, it was not unnecessarily suggestive, and under the totality of the circumstances [McNeese’s] recognition of appellants] when [he] came to the [convenience store] did not give rise to a likelihood of misidentification but was instead reliable. [Cits.] Thus, [McNeese] was not precluded from making the in-court identification.” Id. at 776. Accord Williams v. State, 188 Ga. App. 496, 498 (2) (373 SE2d 281) (1988).

2. Rogers further contends that the trial court erroneously allowed McNeese to identify him in court because his identification was based upon events following an illegal arrest in violation of his constitutional rights. “Our courts have held that a warrantless arrest legal under federal law — that is, one made on the basis of probable cause — is legal under state law, and that the requirements of OCGA § 17-4-20 (a) and federal law are the same. Durden v. State, 250 Ga. 325, 326-327 (1) (297 SE2d 237) (1982). ‘Under this standard an arrest is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed ... an offense. (Cit.)’ Id. at 326 (1).” State v. Thurmond, 203 Ga. App. 230, 231 (416 SE2d 529) (1992).

The evidence here showed that shortly after the robbery was reported, a police lookout was broadcast for two males in a gray, four-door Ford Granada, an automobile almost identical in body style to a Mercury Monarch which the appellants were driving when stopped. A deputy spotted a vehicle matching this description, followed it into the convenience store parking lot, and told the occupants they were suspects in an armed robbery. He instructed them to put their hands on the trunk. Some 30 seconds later other law enforcement personnel began arriving at the scene. Rogers gave a false name, stated he had no identification and could not produce a driver’s license. Both suspects were then handcuffed and placed in a patrol car. The car was searched and a checkbook and pistol matching the description McNeese had given were found inside. The victim was brought to the convenience store within an hour of the incident and confirmed that the suspects were in fact the perpetrators.

“Although the description of the car . . . did not exactly match the radio message the officer received, there is no requirement that [it] do so [cit.], and police officers are authorized to use information received by radio as part of their basis for establishing probable cause. [Cit.]” Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990). Further, considering the totality of the circumstances, the evidence shows that appellants were arrested in the parking lot of the convenience store because they were no longer free to go when they were handcuffed and put in the back of a police car. “Detention beyond that authorized by a Terry stop is an arrest and no formal procedures are required. [Cit.] Therefore, since the police officer had probable cause to arrest [appellants] at the moment he did so, the arrest was valid under both the United States and Georgia Constitutions. [Cits.]” (Indention omitted.) Id. at 735.

3. Rogers protests that the trial court committed reversible error by allowing the State to introduce his answers to questions asked during a custodial investigation conducted after he refused to sign a waiver of rights form. After holding a Jackson-Denno hearing, the trial court found that Rogers had been fully advised of his constitutional rights; that his statements to the detective interrogating him were freely and voluntarily made without hope of benefit or reward, or as a product of duress; and that he was not acting under any mental or physical disabilities which prevented him from understanding his rights. The detective testified that when he advised Rogers of his rights through the use of a Miranda form and asked him to sign it, Rogers “said he wasn’t going to sign any type of paperwork at this time.” However, Rogers did not ask for an attorney or refuse to answer any questions after the form was read to him. He gave false information as to his name, address, place of birth and social security number. When Rogers professed ignorance concerning certain individuals whose names were found in a briefcase taken into evidence, the detective terminated the interview.

“The trial court’s findings as to factual determinations and credibility relating to the admissibility of statements will be upheld on appeal unless clearly erroneous. The trial court, by its ruling that the statement was voluntarily made, accepted the facts as put forth by the State, and this finding [was] not clearly erroneous.” (Citations and punctuation omitted.) Dillman v. State, 201 Ga. App. 833, 835 (2) (412 SE2d 557) (1991). Therefore, no reversible error occurred.

4. Rogers contends that the trial court erroneously found that the State’s final peremptory strike was exercised in a racially-neutral manner. Because there was only one black venireman, he argues that a prima facie case of racial discrimination was shown. The prosecutor was called upon to proffer a race-neutral explanation for challenging the black venireman in accordance with Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). See Gamble v. State, 257 Ga. 325 (357 SE2d 792) (1987). The prospective black juror was a 22-year-old single male, and the prosecutor explained that as a general rule he preferred not to take young, single men and had also struck an unmarried white male of similar age. Another factor was information he received prior to jury selection that a member of the prospective black juror’s family was involved in drug activity which, in his past experience, made him less reliable. The trial court found no Bat-son violation.

In Durham v. State, 185 Ga. App. 163, 166 (3) (363 SE2d 607) (1987), where the State also struck the only black person on the panel of prospective jurors, this court stated that while the total elimination of blacks from the venire established a prima facie case of racial discrimination, “due to the absence of any true ‘pattern’ of strikes giving an inference of discrimination and the minimal disparity between the black percentage of the jury and the black percentage of the panel we view this as an extremely weak prima facie case established by defendant. ‘(A) weak prima facie case may be rebutted more readily than a strong one.’ [Cit.]” We agree that the prosecutor’s explanations were credible and offered a sufficiently neutral and legitimate explication to rebut any presumption of racial discrimination. “Because the U. S. Supreme Court has cautioned us that the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility ... a reviewing court ordinarily should give those findings great deference.” (Citations and punctuation omitted.) Cook v. State, 199 Ga. App. 14, 15 (1) (404 SE2d 128) (1991). See Randolph v. State, 203 Ga. App. 115 (3) (416 SE2d 117) (1992).

5. During his closing argument the prosecutor referred to appellants as being stupid. They complain that the trial court’s failure to correct the prejudicial effect upon the jury caused by the prosecutor’s remark constituted reversible error. Townsend asserts that the trial judge compounded this error by commenting on the evidence when he requested corrective action. When the comment was made, Rogers’ attorney stated that he objected “strenuously to that kind of argument” and asked for a ruling. He was joined by Townsend’s counsel in this objection. The trial court instructed the jury that counsel for the State and for the defendants could make such statements or summations as had been proved during the trial of the case, or anything they could reasonably deduce therefrom, and ordered the State to proceed. Objection was made that in so instructing the jury the court had improperly commented on the evidence, but neither lawyer asked for a mistrial or curative instructions.

We do not find the prosecutor’s remark or the court’s instructions to have prejudiced the appellants for the reasons assigned. OCGA § 17-8-75 “is designed to prohibit counsel from stating prejudicial facts which are not in evidence. [Cit.] However, it is permissible for counsel to draw deductions from the evidence regardless of how illogical and unreasonable, and this is a ‘matter for reply by adverse counsel, not for rebuke by the court.’ [Cit.] Thus it was for defense counsel to reply to the district attorney’s deduction that the [appellants were stupid].” Adams v. State, 260 Ga. 298, 299 (1) (392 SE2d 866) (1990). “ ‘If the challenged remark is not such as would be likely to prejudice the defendant’s right to a fair trial, such will not constitute reversible error. (Cit.)’ Davis v. State, 178 Ga. App. 357, 360 (343 SE2d 140) (1986).” Hargrove v. State, 202 Ga. App. 854, 856 (2) (415 SE2d 708) (1992).

6. Townsend contends that the trial court erred in depriving him of the right to make the concluding argument to the jury because he did not tender any evidence in the case. However, his co-defendant Rogers called a witness and also introduced an exhibit which was admitted without objection. Generally, if the defendant in a criminal case introduces no evidence at trial, he is entitled to present arguments to the jury both before and after the state makes its argument. OCGA § 17-8-71. This right is not forfeited when the defendant testifies in his own behalf, provided he introduces no other evidence. OCGA § 24-9-20. However, the right of a defendant introducing no evidence at trial to open and close the final argument is not absolute. In Lackey v. State, 246 Ga. 331, 337 (10) (271 SE2d 478) (1980) a defendant was denied the right to closing argument when counsel cross-examined a co-defendant’s witness. He had introduced no other evidence in his own behalf and had not taken the stand. McDuffie v. Jones, 248 Ga. 544, 546-547 (2) (283 SE2d 601) (1981) appears to go one step further, holding that if one defendant offers evidence in the trial of co-defendants, the right to make the closing argument is lost to all defendants. Accordingly, this enumeration presents no grounds for reversal.

Judgments affirmed.

Pope, J., concurs. Carley, P. J., concurs in Divisions 1, 3, 4, 5, 6, and in judgment.

Decided October 6, 1992.

Robert L. Stultz, Ronald C. Goulart, for appellant (case no. A92A1240).

John 0. Wiggins, for appellant (case no. A92A1317).

Ralph L. Van Pelt, Jr., District Attorney, Michael R. McCarthy, Assistant District Attorney, for appellee.


author: Andrews, Judge.

text:
    A92A1162.
    TURNER v. THE STATE.
    (423 SE2d 439)
   Andrews, Judge.

Turner was tried and convicted of four counts of aggravated assault, one count of criminal damage to property and one count of possession of a firearm during the commission of a crime and appeals.

Viewing the evidence in the light most favorable to the verdict, it was that on April 7, 1991, Turner fired a handgun out the window of his vehicle while he was driving down the expressway. The people in the vehicle at which Turner fired were Rashaed Williams, Tabitha Birdsong, Deshunda Zotalis and Kenny Bailey. All four of the occupants of the vehicle testified at trial. Testimony was that Tabitha Birdsong and Kenny Bailey saw that Turner had a gun and alerted the other passengers. All four of the occupants of the vehicle ducked down and the driver “hit the accelerator.” They exited the interstate at the first opportunity and immediately reported the shooting to police officers.

In his sole enumeration of error, Turner claims that under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was insufficient for conviction. He argues that although the evidence showed that he fired a pistol at the automobile, there was no evidence that he intended to shoot the occupants of the vehicle and that in the absence of evidence of this intent to injure, there was no basis for the convictions for aggravated assault.

“Intent to injure is not an element of aggravated assault with a deadly weapon. In describing the difference between the misdemeanor offense of pointing a firearm at another (OCGA § 16-11-102) and aggravated assault with a deadly weapon (OCGA § 16-5-21 (a) (2)), the Georgia Supreme Court declared, if the pointing of the firearm placed the victim in reasonable apprehension of immediate violent injury, the felony of aggravated assault has occurred. A simple assault is defined as an act which places another in reasonable apprehension of immediately receiving a violent injury. An assault becomes aggravated when it is perpetrated by use of a deadly weapon. Thus, aggravated assault with a deadly weapon is completed when a simple assault is committed by means of a deadly weapon. It is the reasonable apprehension of harm by the victim of an assault by a firearm that establishes the crime of aggravated assault, not the assailant’s intent to injure.” (Citations and punctuation omitted.) Collins v. State, 199 Ga. App. 676, 677 (405 SE2d 892) (1991).

Decided October 7, 1992.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Jeffrey H. Brickman, Elisabeth G. MacNamara, Assistant District Attorneys, for appellee.

Here, “[t]he transcript shows the State presented evidence of all the elements of aggravated assault by a deadly weapon, as defined by OCGA § 16-5-21 (a) (2), and thus the evidence was sufficient to convict defendant of that offense and the offense of possession of a firearm during the commission of a felony.” Collins, supra at 677; see generally Cline v. State, 199 Ga. App. 532 (405 SE2d 524) (1991). Accordingly, we find that the evidence was sufficient to convict the defendant of the offenses of aggravated assault, the offense of criminal damage to property, and the offense of possession of a firearm during the commission of a crime.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.