text:
    A01A2488, A01A2489.
    AMAECHI v. THE STATE (two cases).
    (564 SE2d 22)
   Pope, Presiding Judge.

A Gwinnett Comity jury found Collins Amaechi guilty of robbery by sudden snatching. On appeal, Amaechi claims the trial court’s erroneous instructions effectively prevented the jury from considering the lesser offense of theft by taking. He also claims that he received ineffective assistance of counsel and that the evidence was insufficient to support his conviction. For reasons which follow, we affirm.

Viewed favorably to the verdict, the record shows that on the afternoon of December 23, 1999, Benjamin Lamkin was playing basketball with a friend, Mark Morales, outside his home. Amaechi drove up in a black Honda Civic. Lamkin and Amaechi lived in the same neighborhood, and the two had been acquainted for over a year. Amaechi asked to look at Lamkin’s necklace. Standing by the car and holding the necklace, Lamkin held it out past the open driver’s side window so that Amaechi could examine it. Amaechi grabbed the necklace and put the car in gear. Lamkin stepped back from the moving car because he was afraid that it would run over his foot and released his grip on the necklace. Amaechi then drove away while Lamkin ran after the car, yelling for Amaechi to return his necklace, but Amaechi accelerated down the street. Lamkin spoke with Amaechi over the telephone several times, demanding that he return the necklace, but Amaechi feigned ignorance. Lamkin’s mother also contacted Amaechi, and he promised to return the necklace but failed to do so. Amaechi finally told Lamkin that he would never get his necklace back.

Case No. A01A2488

1. Amaechi claims the evidence was insufficient to support his conviction. We disagree. The evidence is sufficient if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). “A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another . . . [b]y sudden snatching.” OCGA § 16-8-40 (a) (3).

The testimony of Lamkin shows that Amaechi took the necklace from him by force. “Force is implicit in sudden snatching, both as a fact and as a legal proposition, the force being that effort necessary for the robber to transfer the property taken from the owner to his possession.” (Citation omitted.) Westmoreland v. State, 245 Ga. App. 482, 484 (1) (538 SE2d 119) (2000). Amaechi claims other evidence shows that Lamkin handed him the necklace voluntarily. The jury was entitled to believe Lamkin’s testimony even if it was inconsistent with other testimony given at trial. See Royal v. State, 217 Ga. App. 459, 460 (1) (458 SE2d 366) (1995). Lamkin’s testimony was direct evidence of the crime, see Davis v. State, 266 Ga. 801, 803-804 (7) (471 SE2d 191) (1996), and Amaechi’s argument that the evidence presented by the State amounted to no more than conflicting circumstantial evidence is baseless.

2. Amaechi next contends that the trial court erred by instructing the jury that the lesser offense of theft by taking could not be considered absent a unanimous acquittal on the indicted offense of robbery. The requirement of a unanimous acquittal may impermissibly preclude the jury from considering a lesser included offense. Cantrell v. State, 266 Ga. 700, 702 (469 SE2d 660) (1996). But the instruction given by the trial court, while not consistent with the wording favored by our Supreme Court, is not erroneous. The trial court instructed the jury that:

[I]f you, the jury, should find and believe beyond a reasonable doubt that the defendant did . . . commit the offense of robbery by sudden snatching, . . . then you are authorized to find him guilty. ... If you do not believe he is guilty of the offense as alleged ... , if you have any reasonable doubt as to his guilt, it is your duty to acquit him. In this particular case, if you find that the defendant did not commit the offense of robbery by sudden snatching as has been alleged, you do have the option of considering whether or not the State has proven beyond a reasonable doubt that the defendant committed the offense of theft by taking.

Our Supreme Court, in Camphor v. State, 272 Ga. 408, 414 (6) (d) (529 SE2d 121) (2000), found a similar charge (“Should you find the defendant not guilty of the crime of burglary, you would be authorized to consider . . . the lesser offense of criminal trespass”), did not warrant a reversal because the instruction did not require that the jury reach a unanimous verdict on the indicted offense before considering the lesser included offense. The court distinguished Kunselman v. State, 232 Ga. App. 323 (501 SE2d 834) (1998), upon which Amaechi relies, because the trial court in Kunselman charged the jury that they could consider the lesser included offense “if and only if” they found the defendant not guilty on the indicted offense. See also Arnold v. State, 249 Ga. App. 156, 162-163 (5) (545 SE2d 312) (2001). Accordingly, while the charge given by the trial court is not preferred, it was not erroneous.

3. Amaechi claims his trial counsel provided ineffective assistance of counsel by (a) presenting mutually exclusive and inconsistent defenses, (b) failing to request that the jury be charged on impeachment, (c) failing to request that the trial court charge on identity, (d) failing to object to the trial court’s charge addressing when the jury could consider the lesser included offense of theft by taking, and (e) failing to object to the testimony of the investigating officer that he “substantiated” the case against Amaechi. Although we will consider each claim in turn, we find they have no merit.

In order to establish ineffectiveness of trial counsel under Strickland v. Washington, [466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), Amaechi] must show both that counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Furthermore, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

(Footnotes omitted.) Jackson v. State, 243 Ga. App. 289, 291 (3) (531 SE2d 747) (2000).

(a) Amaechi claims that his trial counsel was ineffective because he presented a mutually exclusive and inconsistent defense. We disagree. Amaechi testified at trial that he was in Mississippi at the time of the theft. His trial counsel also inquired into a number of things on cross-examination of the State’s witnesses, such as the value of the necklace and whether the necklace was actually “snatched” or taken in some other way, with the purpose of establishing the lesser included offense of theft by taking as an option for the jury. This was a valid strategy. We do not agree that counsel with an alibi defense must fail to pursue, through thorough cross-examination, a weakness in the State’s case if it appears the crime charged exceeds the acts shown. It could be true both that Amaechi was in Mississippi and that the State failed to prove the elements of its case.

Amaechi’s reliance on Ross v. Kemp, 260 Ga. 312 (393 SE2d 244) (1990), is misplaced. In Ross, the defendant was represented by two attorneys each actively pursuing his own theory of defense, one defense being based on mental illness, the other on alibi. The attorneys even gave contradictory closing arguments. Id. at 314. This is qualitatively different from trial counsel’s approach here.

(b) Amaechi argues that trial counsel rendered ineffective assistance by failing to ask the trial court to charge the jury on impeachment. Again, we disagree. Trial counsel was able to show some inconsistency in the testimony of the State’s witnesses, but mostly on matters which were irrelevant or peripheral to the issues at trial. The relevant inconsistencies shown in the testimony of Lamkin included the testimony of Morales that he saw Lamkin pass the necklace to Amaechi before Amaechi drove off and the testimony of an investigating officer that Lamkin told him that he had removed the necklace and handed it to Amaechi. Lamkin’s testimony was possibly inconsistent with that of Morales and the investigating officer with regard to Amaechi’s forcefully taking the necklace out of Lamkin’s hand, but consistent in the identity of the perpetrator, the theft of the necklace, and that Lamkin did bring the necklace over to Amaechi for closer inspection. Despite the inconsistencies, trial counsel, as reflected by his testimony in the hearing on motion for new trial, decided not to ask for a charge on impeachment because Amaechi also took the stand. The inconsistencies in the testimony of the State’s witnesses were possibly a matter of innocent misinterpretation, as opposed to intentional lying. Amaechi, on the other hand, was either telling the truth or not. Given these circumstances, failure to request a charge on impeachment, which would focus the jury on the manner in which a witness may be shown to be unworthy of belief, including impeachment by disproving facts which were testified to, see OCGA § 24-9-82, was a matter of reasonable trial strategy.

(c) Amaechi contends that trial counsel rendered ineffective assistance by failing to request that the jury be charged on identification. Lamkin testified that he knew Amaechi personally, and had even visited Amaechi’s home, and that they had gone to the movies together. Lamkin said Amaechi was driving a black Honda, and Amaechi confirmed that he drove a black Honda. Morales made an in-court identification of Amaechi as the person who drove up to Lamkin’s home while they were playing basketball. Nevertheless, Amaechi testified that he was in Mississippi when the crime occurred, and he maintains that the identity of the person who took Lamkin’s necklace is at issue. Trial counsel testified in the hearing on motion for new trial that he decided an identification charge would not help the defense. Given the nature of the identification testimony, we believe a reasonable trial counsel could conclude that the defense could not show that Lamkin and Morales made a mistake in identification. Accordingly, we find that failure to request a charge on identification did not amount to ineffective assistance.

(d) Amaechi next claims trial counsel was ineffective in failing to object to the jury instruction concerning when the jury could consider the lesser charge of theft by taking. As we concluded in Division 2 above, the charge given was not erroneous. The better practice would have been for trial counsel to request the applicable model charge, as quoted approvingly by our Supreme Court in Camphor, but we cannot say that failure to do so was ineffective assistance.

(e) Finally, Amaechi claims that trial counsel was ineffective in failing to object to the following testimony by the investigating officer: “My investigation led [sic] to substantiate the allegation against Mr. Amaechi, at which time I secured a warrant for him for robbery by sudden snatching.” Amaechi argues that this testimony is an expression of opinion by the officer as to the ultimate fact of Amaechi’s guilt. See OCGA § 24-9-65. “ ‘Ordinarily, a witness may not express his opinion as to an ultimate fact, because to do so would invade the province of the jury.’ [Cit.]” Mitchell v. State, 222 Ga. App. 878, 879 (3) (476 SE2d 604) (1996). Trial counsel could not give a reason as to why he failed to object. Assuming, without deciding, that the failure to object was ineffective assistance, in order to warrant a reversal Amaechi must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Jackson, 243 Ga. App. at 291 (3). The record does not warrant such a conclusion. In context, the officer is testifying as to why he issued a warrant for Amaechi’s arrest. The State’s case for conviction is based on the testimony of eyewitnesses Lamkin and Morales, and we conclude that it is not probable that the outcome would have been different if the questioned testimony had been excluded. A reversal is not required.

Decided March 13, 2002

Reconsideration denied March 27, 2002

Stepp & Randazzo, Glynn R. Stepp, for appellant.

Collins C. Amaechi, pro se.

Daniel J. Porter, District Attorney, Gregory D. McKeithen, Assistant District Attorney, for appellee.

Case No. A01A2489

In this case, Amaechi makes a pro se appeal of the trial court’s decision to deny him an appeal bond. In view of our affirmance of Amaechi’s conviction, this appeal is moot. Warren v. State, 247 Ga. App. 838, 843 (3) (545 SE2d 138) (2001).

Judgment affirmed in Case No. A01A2488. Appeal dismissed as moot in Case No. A01A2489.

Mikell, J., concurs. Blackburn, C. J., concurs in Divisions 1 and 3 and in the judgment.

       Our Supreme Court found the following charge preferable: “ ‘If you do not believe beyond a reasonable doubt that the defendant is guilty of (indicted crime), but do believe beyond a reasonable doubt that the defendant is guilty of_, then you would be authorized to find the defendant guilty of_.’ ” (Citation omitted.) Camphor v. State, 272 Ga. 408, 415 (6) (d), n. 5 (529 SE2d 121) (2000).


source: Caselaw Access Project

author: POPE, Presiding Judge.

license: Public Domain

text:
    A01A2515.
    HARPER v. FOXWORTHY, INC. et al.
    (562 SE2d 736)
   POPE, Presiding Judge.

Roslyn A. Harper filed a complaint seeking to set aside the tax sale of her property on the ground that she did not receive the requisite statutory notices prior to the sale. The trial court dismissed Harper’s complaint following a bench trial, and she appeals. We affirm.

“We review appeals from bench trials, where the trial judge sits as trier of fact and has the opportunity to assess witness credibility, under the clearly erroneous standard.” (Footnote omitted.) Mail Advertising Systems v. Shroka, 249 Ga. App. 484 (548 SE2d 461) (2001). Therefore, the trial court’s findings of fact will not be disturbed if there is any evidence to support them. Id.

Here, the evidence showed that Harper owned a condominium unit in the City of Atlanta, Fulton County. The Fulton County Tax Commissioner issued bills each year for the collection of City of Atlanta and Fulton County taxes. The commissioner sent Harper two tax bills for the 1998 tax year. The first, a temporary tax bill, was sent on July 15, 1998. The taxes under that bill were due September 1, 1998, and the record shows that Harper’s mortgage company paid these taxes on her behalf. The tax records reflect that a second tax bill was sent on March 1, 1999, but no payment was made for Harper’s property. Harper testified that she did not receive the second tax billing for 1998, but rather believed that she had paid her taxes in full.

Under OCGA § 48-3-3 (b), the tax commissioner was required to notify Harper in writing that her taxes had not been paid and that, unless paid, an execution for nonpayment of taxes would be issued. Fulton County computer records reflect that this delinquency notice was sent to Harper on June 21, 1999. Harper denies receiving this notice. In any event, no tax payment was forthcoming, and the tax commissioner issued tax executions, or fi. fas., on the property in accordance with OCGA § 48-3-3 (a). These fi. fas. were filed and recorded on August 9, 1999.

Under Georgia law, a third party may pay a tax execution in exchange for the transfer of the execution to that third party. OCGA § 48-3-19 (a) (1). But before the transfer can be made, the prospective transferee is required to notify the property owner by certified mail or statutory overnight delivery of the transferee’s intent to pay the tax executions. OCGA § 48-3-19 (b) (1).

Thomas Biggers, the Delinquent Tax Administrator with the Fulton County Tax Commissioner’s Office, testified that under office policy a transfer of a fi. fa; would not be made unless the prospective transferee submitted proof that it had given the statutory notice to the property owner. He stated that Vesta Holdings, Inc., as nominee for Heartwood 11, Inc., submitted the proof that it had supplied the necessary notice to Harper. He identified an undated letter from Vesta notifying Harper of its intent to pay the tax executions and stated that it conformed with the statutory notice requirements. Big-gers also noted that the letter referenced the number “P902509252,” which he stated was a postal identification number for a certified piece of mail. That number corresponded to an article number appearing on a U. S. Post Office Certified Mail Firmbook page introduced at trial. The corresponding entry for that number reflected a certified mailing to Harper from Vesta on August 9, 1999. Nevertheless, Harper denies receiving this notice.

The tax executions were subsequently transferred to Vesta, which forwarded them to the Sheriff of Fulton County for levy and sale. Before proceeding with the sale, the sheriff must give the property owner 20 days written notice of the intended levy against his property. OCGA § 48-3-9 (a). A Vesta employee testified that it was the company’s practice to prepare and send out these notices on the sheriff’s behalf. The employee then identified a copy of the notice and a copy of the Certified Mail Firmbook page indicating that the notice was mailed to Harper by certified mail on April 21, 2000. Vesta also arranged for a court-appointed process server to personally serve Harper with a copy of the notice. Vesta introduced a copy of the return of service indicating that a copy of the notice had been tacked to Harper’s property, although the process server was not called at trial or subjected to any cross-examination on the issue. In addition, Vesta published the notice of the sale in the Fulton County Daily Report pursuant to OCGA § 48-4-1 (a). Harper denies receiving or seeing any copies of this notice.

Vesta further mailed Harper a ten-day notice of the impending levy and sale, as required under OCGA § 48-4-1 (a). The Vesta employee identified a copy of this notice and a Certified Mail Firmbook page, which she said indicated that the notice was sent by certified mail to Harper on May 20, 1999. Harper denied receiving this notice prior to the sale, but states that she did receive the notice at 5 p.m. on June 6, 2000, the date of the tax sale. By that time, Foxworthy, Inc. had already purchased the property. Harper testified that she went to pay her taxes the following day, but was told that it was “too late.”

1. Harper contends the tax sale should have been set aside because she failed to receive the proper notices, which denied her due process of law.

The trial court here found that although Harper may not have actually received the notices regarding the tax consequences to her property, the defendants had properly complied with the statutory requirements. The court found that the notices had been sent to Harper, many by certified mail, and concluded that this was sufficient to satisfy the statutory requirements, in light of evidence that Harper at times failed to retrieve her certified mail in a prompt fashion.

Harper asserts, however, that under the tax statutes there must be proof that the property owner received the notice, citing Hamilton v. Edwards, 245 Ga. 810 (267 SE2d 246) (1980). In Hamilton, the taxpayer had filed an appeal to a reassessment of his property 16 days after the Board of Tax Assessors mailed the notice to him, but within 14 days of receiving the notice. Under the applicable law, the taxpayer was given fifteen days to appeal, and the Board took the position that the appeal was one day late. Id. Our Supreme Court held under the circumstances of that case, notice occurred on the date the taxpayer received the notice and not from the date of mailing. Id. at 812.

But the Supreme Court also noted that notice can be either express, implied, or constructive. No issue of constructive or implied notice existed in the Hamilton case, but there is at least some evidence of such notice in this case. The Hamilton opinion defined constructive notice as “information or knowledge of a fact imputed by law because the fact could have been discovered by proper diligence and the situation was such as to cast upon a person the duty to inquire into it.” Id. at 811-812. Implied notice “is that notice which is inferred or imputed to a party by reason of his knowledge of facts or circumstances collateral to the main fact, of such a character to put him upon inquiry, and which, if inquiry were followed up with due diligence, would lead him directly to the knowledge of the main fact.” Id. at 812.

The trial court found that no actual notice had been received, but that the requisite notices had been sent. We find no clear error in the court’s findings. Thus, at least four separate notices were properly addressed and mailed to Harper, three of which were sent by certified mail. The record is silent as to whether any of the certified mail receipts were returned as unclaimed or refused. But there was evidence to support the trial court’s conclusion that Harper did not always pick up her certified mail within a reasonable time. Harper testified that her work frequently took her out of town, and that when in town her working hours prevent her from getting to the post office while it is open. She admitted that she may not have picked up every piece of certified mail after receiving a post office notification, although she said it was her habit to do so. In addition, she admitted receiving the last of the notices, which the evidence showed was sent in the same fashion and by the same party as the earlier two certified letters.

Accordingly, we find that the trial court was authorized to conclude under these circumstances that Harper had constructive or implied notice equivalent to the receipt of actual notice, and that with reasonable inquiry she could have discovered her delinquent tax status. See generally Five Star Steel Contractors v. Colonial Credit Union, 208 Ga. App. 694, 695-696 (431 SE2d 712) (1993) (certified mail method of notice should not depend upon the recipient’s diligence in retrieving the mail).

2. Moreover, even if Harper was not provided the requisite notice of the tax sale, this failure will not suffice to set aside the tax sale of her property. GE Capital Mtg. Svcs. v. Clack, 271 Ga. 82, 83 (1) (a) (515 SE2d 619) (1999); Haden v. Liberty Co., 183 Ga. 209, 211 (1) (188 SE 29) (1936). It is “the rule in this state that defects in following the notice provisions of the tax sale statute may give an injured party a claim for damages, but will not render the tax sale or the deed therefrom void.” (Citation omitted.) Clack, 271 Ga. at 83 (1) (a).

Decided March 11, 2002

Reconsideration denied March 27, 2002

William H. Arroyo, for appellant.

Proctor & Chambers, Robert J. Proctor, Bradley A. Hutchins, Rodney T. Floyd, Overtis H. Brantley, Vernitia A. Shannon, for appel-lees.

This is because the notice requirements are considered to be directory in nature: “The law requiring notice to be given, property advertised, etc., is directory to the officer. His neglect to observe these requirements may subject him to a suit for damages at the instance of any party injured thereby, but will not affect the title of a bona fide purchaser at his sale.” (Citations and punctuation omitted.) Haden, 183 Ga. at 211 (1). Therefore, a purchaser at a tax sale is entitled to presume that the sheriff has performed the necessary steps to make the sale valid. Id.; Clark v. C. T. H. Corp., 181 Ga. 710, 715 (5) (184 SE 592) (1936). In fact, even if a purchaser were put on notice that the sheriff may not have complied with each of these steps, the tax sale would not be void “in the absence of fraud or collusion on the part of the purchaser.” (Citations, punctuation and emphasis omitted.) Sizemore v. Brown, 179 Ga. App. 594-595 (347 SE2d 345) (1986).

Here, because there was no evidence that Foxworthy, the purchaser of the property, was involved in any collusion or fraud to deprive Harper of the requisite notice, the tax sale could not be set aside on that ground. And Harper sought no monetary damages in connection with the sale. Therefore, the trial court properly dismissed Harper’s complaint.

3. In light of our holding in Divisions 1 and 2 above, we need not reach Harper’s argument that the trial court erred in dismissing her claim for attorney fees.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.

       The named defendants were Foxworthy, Inc.; Jacquelyn H. Barrett, Sheriff of Fulton County; Arthur E. Ferdinand, Fulton County Tax Commissioner; Vesta Holdings, Inc. as nominee of Heartwood 11, Inc.; Heartwood 11, Inc.; and Aurora Loan Services, Inc.


author: Eldridge, Judge.

text:
    A00A0070.
    NIX v. COX ENTERPRISES, INC. et al.
    (562 SE2d 835)
   Eldridge, Judge.

In Cox Enterprises v. Nix, 274 Ga. 801 (560 SE2d 650) (2002), the Supreme Court reversed that portion of our judgment in Nix v. Cox Enterprises, 247 Ga. App. 689 (545 SE2d 319) (2001), which found that the trial court’s grant of summary judgment on Nix’s defamation claim was in error. Therefore, we vacate that portion of our earlier opinion and adopt the opinion of the Supreme Court as our own.

Decided March 27, 2002.

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

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

Judgment affirmed.

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


author: SMITH, Presiding Judge.

text:
    A01A1836.
    McKESSON HBOC, INC. et al. v. ADLER.
    (562 SE2d 809)
   SMITH, Presiding Judge.

We granted this application for interlocutory appeal in order to consider the trial court’s order directing McKesson HBOC, Inc. and HBO & Company (“McKesson”) to produce documents McKesson contends are privileged and protected by the work-product doctrine. Because we conclude that the trial court failed to conduct the required investigation and analysis of McKesson’s work-product claim or to rule on the merits of that claim, we vacate and remand for a determination of that issue. We affirm the trial court’s decision, however, with respect to the attorney-client privilege, the denial of McKesson’s motion for a protective order, and the denial of McKes-son’s motion to add a counterclaim.

This action was brought by Melvin Adler seeking damages from McKesson HBOC and HBO & Company after a merger in which HBO became a subsidiary of McKesson. Adler alleges that McKesson and HBO filed false financial statements in connection with their merger and that these false reports induced Adler to invest to his detriment. During the litigation, Adler sought to obtain documents generated by McKesson during an investigation of the financial reports by McKesson’s “audit committee,” and McKesson objected. According to McKesson, these documents (which remain under seal) consist of interviews of 37 present and former employees, legal mem-oranda, and an audit committee report with supporting documents created from the interviews and memoranda.

The federal Securities and Exchange Commission, which filed briefs in this action here and below as amicus curiae, became involved in this matter shortly after the merger and McKesson’s revision of its financial statements. According to the SEC’s representative, it began an informal inquiry, and McKesson’s audit committee authorized its counsel and accountants to cooperate fully with the SEC, “provided that a suitable confidentiality agreement was in place.” A confidentiality agreement and supplemental agreement were entered into by McKesson, the audit committee, and the SEC.

In this litigation, the trial court ordered that McKesson produce “any and all materials sent to the Securities and Exchange Commission.” Specifically, the trial court held that transmittal of the documents to the SEC waived the attorney-client privilege, that the accountant-client privilege “is against the interest of fairness and justice in this case and is void as it is against public policy,” and that the accountant-client privilege had been “waived or is otherwise not applicable.” But the trial court did not address McKesson’s claim of work-product protection, although that issue was raised below by McKesson as well as by the SEC amicus curiae.

1. McKesson’s enumeration of error concerning the work-product doctrine is dispositive of this appeal. McKesson complains that the trial court did not address its claim of work-product protection, that the trial court found no factual basis for waiver of the work-product doctrine, and that the findings required for waiver of work-product protection were not made. We agree.

The standard of protection under the work-product doctrine is high and contains very specific requirements for the trial court in considering such a claim. OCGA § 9-11-26 (b) (3) provides:

Trial preparation; materials. Subject to paragraph (4) of this subsection, a party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (1) of this subsection and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.

“As we read the language of this subsection, it is obvious that documents, statements and other tangible items of evidence developed by one party in preparation for litigation are discoverable by the other party only in carefully limited circumstances.” Ga. Intl. Life Ins. Co. v. Boney, 139 Ga. App. 575, 580-581 (3) (228 SE2d 731) (1976). The party seeking the trial preparation material must affirmatively show “a substantial need for the evidence and that undue hardship will result should the seeking party be required to develop the evidence by other means.” McKinnon v. Smock, 264 Ga. 375, 376 (2) (445 SE2d 526) (1994). The trial court then may order the production of the material “following an in camera examination to ensure against disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” (Citations and punctuation omitted.) Id. This complex and fact-intensive process differs substantially from the analysis required for a claim of attorney-client privilege, which is narrowly construed, Tenet Healthcare Corp. v. Louisiana Forum Corp., 273 Ga. 206, 208 (538 SE2d 441) (2000), and places the burden on the party asserting it to establish its applicability. Zielinski v. Clorox Co., 270 Ga. 38, 40 (2) (504 SE2d 683) (1998). The trial court’s ruling with respect to attorney-client privilege, therefore, sheds no light on whether the documents in question fall within the scope of the work-product doctrine.

Moreover, once the documents falling within the scope of work-product protection are determined, the trial court must consider the issue of waiver. While the trial court found that McKesson’s claim of attorney-client privilege had been waived, once again the standards for determination of waiver are substantially different in the case of the work-product doctrine, with a much higher threshold than for waiver of attorney-client privilege. Compare Zielinski, supra at 40 (2) (forwarding copy of document to district attorney waived attorney-client privilege), and Osborn v. State, 233 Ga. App. 257, 260 (2) (b) (504 SE2d 74) (1998) (giving copy of statement to wife waived attorney-client privilege), with McKinnon v. Smock, 209 Ga. App. 647-648 (2) (434 SE2d 92) (1993), aff’d, McKinnon v. Smock, supra (disclosure to testifying expert does not waive work-product protection). In McKinnon, we found the work-product doctrine applicable even to documents prepared by an attorney for transmission to a third party, in direct contrast to the limits of the attorney-client privilege. To the extent a communication is made for the purpose of disclosure to a third party, it is not protected by the attorney-client privilege in Georgia. Tenet Healthcare, supra at 209 (1).

More specifically, the purpose of the work-product doctrine is different from that of the attorney-client privilege. While the attorney-client privilege is intended to protect the attorney-client relationship by protecting communications between clients and attorneys, the work-product doctrine directly protects the adversarial system by allowing attorneys to prepare cases without concern that their work will be used against their clients. Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F2d 1414, 1427-1428 (3rd Cir. 1991). For this reason, the protection of work-product is not necessarily waived by disclosure to a third party. “Most courts hold that to waive the protection of the work-product doctrine, the disclosure must enable an adversary to gain access to the information.” Id. at 1428 (V); see also In re Steinhardt Partners, 9 F3d 230, 235 (2nd Cir. 1993); Bowne of New York City, Inc. v. AmBase Corp., 150 FRD 465, 479 (S.D. N.Y. 1993), and cases cited therein.

McKesson argues that its cooperation with the SEC could not reasonably be construed as enabling an adversary to obtain the protected information, for three reasons: It was not adverse to the government; McKesson and the government “share a common interest in developing legal theories and analyzing information,” Steinhardt Partners, supra at 236 (II); and McKesson obtained a written confidentiality agreement. Id. McKesson has presented some evidence in support of these contentions. The SEC acknowledged that McKesson was not the focus of its investigation; rather, the SEC sought to investigate “potential wrongdoing by former officers and employees, rather than current management who obtained their positions largely in reaction to accounting irregularities.” The United States Attorney’s office apparently has stated that McKesson was not a subject or target of its investigation. The SEC acknowledges that it shares certain interests with McKesson. With respect to the confidentiality agreement, the SEC argues that Steinhardt Partners, supra, recognizes the effectiveness of and necessity for confidentiality agreements and that it engages in such agreements on rare occasions to expedite its investigations. In this case, a district administrator for the SEC concluded that the information developed in McKesson’s internal investigation was reliable, expedited the SEC’s investigation, provided information not readily obtainable otherwise, and significantly benefitted the SEC in its investigation. The SEC therefore urges that such agreements should not waive protection under the work-product doctrine for important public policy reasons.

The trial court is the trier of fact in discovery disputes. Addington v. Anneewakee, Inc., 204 Ga. App. 521, 522 (420 SE2d 60) (1992). These material, disputed issues of fact must be addressed by the trial court and cannot be decided here. Both McKesson and Adler now argue that the evidence necessary to determine the application of the work-product doctrine is before this court and may be adjudicated without a remand, but we disagree. While the documents at issue and the contentions of the parties are physically present in the record, our law requires that the initial determination of the scope and extent of the work-product protection afforded these documents be made by the trial court. “This court is for the correction of errors, and where the trial court has not ruled on an issue, we will not address it.” Pyle v. City of Cedartown, 240 Ga. App. 445, 448 (3) (524 SE2d 7) (1999). Accordingly, the judgment of the trial court with respect to the production of documents is vacated, and this case is remanded for further proceedings consistent with this opinion.

2. The trial court correctly determined that the attorney-client privilege did not apply to the documents at issue here. As noted in Division 1, above, the scope of the attorney-client privilege is far narrower than that of the work-product doctrine, and it is far more readily waived by disclosure to a third party. Moreover, the SEC became involved in the investigation of this matter almost immediately, and the audit committee authorized its attorneys and accountants to cooperate with the SEC. Since McKesson contemplated that the documents would be provided to a third party almost from the inception of its investigation, the rule stated in Tenet Healthcare, supra, applies and the documents are not subject to the attorney-client privilege.

3. McKesson also enumerates as error the trial court’s order granting Adler’s motion to file more than 50 interrogatories and denying its motion for a protective order. McKesson complains that Adler is improperly using requests for admission that are overbroad, cannot be simply admitted or denied, and are in effect interrogatories. McKesson also contends that Adler’s requested discovery is irrelevant to the issues in this action. But our Supreme Court has held that requests for admission are not objectionable simply because they require opinions or conclusions of law, as long as the legal conclusions relate to the facts of the case. G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 268 Ga. 327, 329 (1) (486 SE2d 810) (1997). Moreover,

[t]he courts of this State have long recognized the overriding policy of liberally construing the application of the discovery law. To hold otherwise would be to give every litigant an effective veto of his adversaries’ attempts at discovery. The scope of permissible discovery is not, however, unlimited. OCGA § 9-11-26 (b) (1) provides that, as a general proposition, parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

(Citation and punctuation omitted; emphasis in original.) DeLoitte Haskins & Sells v. Green, 187 Ga. App. 376-377 (370 SE2d 194) (1988).

The grant or denial of a motion for protective order lies within the sound discretion of the trial court. Bridges v. 20th Century Travel, 149 Ga. App. 837, 838-839 (256 SE2d 102) (1979). Protective orders are “intended to be protective not prohibitive — and, until such time as the court is satisfied by substantial evidence that bad faith or harassment motivates the discoverer’s action, the court should not intervene to limit or prohibit the scope of pretrial discovery.” (Citations and punctuation omitted; emphasis in original.) Id. at 839. In the absence of a showing of harassment, hardship, or a claim of privilege or other protection such as the work-product doctrine, as in Division 1, supra, McKesson has not shown that the trial court abused its discretion in denying the motion for a protective order.

4. Finally, McKesson complains of the trial court’s order denying its motion to add a counterclaim. OCGA § 9-11-13 (f) provides: “When a pleader fails to set up a counterclaim through oversight, inadvertence, or excusable neglect, or when justice requires, he may by leave of court set up the counterclaim by amendment.” McKesson tacitly acknowledges that it has not shown “oversight, inadvertence, or excusable neglect.” “Even if oversight, inadvertence, or excusable neglect [is] absent, a trial court should allow the counterclaim when justice requires; however, whether justice requires the grant of leave to set up an omitted counterclaim is a matter which addresses itself to the sound discretion of the trial court.” (Citations and punctuation omitted.) Meeker v. Eufaula Bank &c., 208 Ga. App. 702, 703 (1) (431 SE2d 475) (1993). McKesson argues that it should be allowed to assert its late counterclaim because it will not work any prejudice on Adler and because the claim itself is meritorious. Adler counters that the claim is meritless and that McKesson has no standing to assert it. “[WJhether to allow such a filing even after the requisite showing is made is within the discretion of the trial court and will not be disturbed absent abuse.” Hovendick v. Presidential Financial Corp., 230 Ga. App. 502, 506 (6) (497 SE2d 269) (1998). We cannot say that the trial court abused its discretion in denying McKesson’s motion to amend.

Decided March 27, 2002.

Morris, Manning & Martin, Joseph R. Manning, John H. Williamson, Claudia M. Anders, Henderson & Lipscomb, David S. Lipscomb, for appellants.

Bondurant, Mixson & Elmore, H. Lamar Mixson, Jill A. Pryor, Jason M. Freier, Paul, Hastings, Janofsky & Walker, John G. Parker, Kirkley & Payne, Dorothy Y. Kirkley, Julie R. Schwartz, Davidson & Tucker, Gercdd Davidson, Jr., for appellee.

William P. Hicks, amicus curiae.

Judgment affirmed in part, vacated and remanded in part.

Barnes and Phipps, JJ, concur.

       According to McKesson, more than 80 federal lawsuits arising out of the merger (including 50 class actions) have been filed nationwide and consolidated in the Northern District of California.

       McKesson has withdrawn its enumeration of error with regard to the accountant-client privilege.

       The SEC has filed an amicus curiae brief in support of McKesson with respect to the trial court’s first ruling only, and Albert J. Bergonzi, another defendant and former officer of McKesson, has filed a brief in opposition to his co-defendant McKesson, stating that he wishes to review these documents to further his own defense.

       This is a Georgia case applying Georgia law, but the parties have relied heavily upon federal decisions which have addressed these discovery issues in the context of similar litigation. Because Georgia’s Civil Practice Act is modeled on the Federal Rules of Civil Procedure, decisions of the federal courts interpreting the federal rules are persuasive authority. Ambler v. Archer, 230 Ga. 281, 287 (1) (196 SE2d 858) (1973).

       OCGA § 9-11-33 (a) (1) provides that the trial court may allow in excess of 50 interrogatories “upon a showing of complex litigation or undue hardship incurred if such additional interrogatories are not permitted.” (Emphasis supplied.)


text:
    A01A2150.
    DUFFY et al. v. THE LANDINGS ASSOCIATION, INC. et al.
    (563 SE2d 174)
   SMITH, Presiding Judge.

This dispute between property owners and a real estate marketing company returns to this court for the second time. In the first appeal, Duffy v. The Landings Assn., 245 Ga. App. 104 (536 SE2d 758) (2000) (“Duffy I”), this court reversed the trial court’s grant of summary judgment against Robert J. and Marcy C. Duffy and in favor of The Landings Company and The Landings Association, Inc. The trial court upheld a restrictive covenant requiring that property owners in a residential subdivision pay a “transfer fee” to a marketing company upon the sale of their residence. We reversed because the original restrictive covenants were not properly amended to impose the transfer fee. Id. at 104, 107-108.

The case now reappears before us on the Duffys’ appeal of the trial court’s order denying their motion to certify this litigation as a class action. In three enumerations of error, the Duffys contend the trial court erred in refusing to certify a class action. In their remaining enumeration of error, they contend the trial court erred in vacating its order allowing them to amend their complaint to assert a claim for attorney fees. We conclude that the trial court did not abuse its discretion in denying class certification and that the Duffys’ claim for attorney fees was extinguished with the class action claims. We therefore affirm.

1. We first consider the trial court’s denial of class certification. The Duffys originally sought to certify a class of all landowners in the subdivision required to pay the transfer fee upon sale of their property. They later amended or revised their proposal to include subclasses of those who voted in favor of the transfer fee provision and those who voted against it or did not vote.

In its order, the trial court gave three alternative bases for its decision: (1) The Duffys failed to plead a proper class action; (2) the Duffys failed to meet the substantive requirements for class certification; and (3) certification of the class after the case has already been decided in the Duffys’ favor would violate the federal law doctrine of “one-way intervention.” We first consider the substantive issues decided by the trial court.

OCGA § 9-11-23 (a) provides:

(a) Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly ensure the adequate representation of all may, on behalf of all, bring or defend an action when the character of the right sought to be enforced for or against the class is: (1) Joint, or common, or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it; or (2) Several, and the object of the action is the adjudication of claims which do or may affect specific property involved in the action.

“[I]n determining the propriety of a class action, the first issue to be resolved is not whether the plaintiffs have stated a cause of action or may ultimately prevail on the merits but whether the requirements of [OCGA § 9-11-23 (a)] have been met. [Cit.]” Sta-Power Indus. v. Avant, 134 Ga. App. 952, 954 (216 SE2d 897) (1975). And on “appellate review of a trial court’s decision on a motion to certify a class, the discretion of the trial judge in certifying or refusing to certify a class action is to be respected in all cases where not abused.” (Citations omitted.) Jones v. Douglas County, 262 Ga. 317, 323 (2) (418 SE2d 19) (1992); see also Hooters of Augusta v. Nicholson, 245 Ga. App. 363, 367-368 (4) (537 SE2d 468) (2000).

“[T]he requirements for class certification [are] numerosity, commonality and adequacy of representation.” Taylor Auto Group v. Jessie, 241 Ga. App. 602, 604 (2) (527 SE2d 256) (1999). Alternatively stated, to certify the class the trial court must find

that the class is so numerous as to make it impracticable to bring all members before the court; that the questions of law and fact common to the class members predominate over any individual questions; that the claim of the named plaintiff is typical of the claims of the members of the class; that the named plaintiff and class counsel will adequately represent the interests of the class; and that a class action is superior to other available methods of achieving a fair and efficient adjudication of the controversy.

Hooters, supra at 368 (4).

Here, the trial court particularly considered common questions of law and fact, the typicality of the Duffys’ claim, and whether they would adequately represent the interests of the proposed class. Robert Duffy testified that he did not vote for or against the amendment, although he was “emphatically” opposed to it. In addition, the Duffys never actually paid the fee, but deposited it with the court instead. Appellees do not know of any other potential plaintiff who declined to pay the transfer fee and instead paid it into court. The trial court concluded that the Duffys “would not share common issues with other putative class members who voted for the amendment or did not protest the transfer fee at closing,” because litigation of the claims of other proposed class members would involve such issues as promissory estoppel and voluntary payment not relevant to the Duf-fys’ claim. On the facts presented, this decision was within the trial court’s discretion.

The trial court’s decision is further supported by the facts in the record. For example, while a record was kept of vote totals and the names of the property owners who returned ballots on the transfer fee amendment to the restrictive covenants, there is no record of how any individual voted. In order to assess the claims of prospective class members, each will have to be asked whether he or she returned a ballot, and if so, whether the ballot was in favor of or opposed to the transfer fee. A class action is not authorized when the issue presented must be resolved on a case-by-case basis and “the resolution of individual questions plays such an integral part in the determination of liability.” (Citations and punctuation omitted.) Aetna Cas. &c. Co. v. Cantrell, 197 Ga. App. 672, 674 (2) (399 SE2d 237) (1990). Moreover, the potentially antagonistic position of those property owners who voted in favor of the transfer fee justified the trial court’s decision. Jones, supra at 324 (2). The trial court also noted that Mr. Duffy is a member of the law firm seeking to represent the class, and the potential conflict of interest this might involve in adequately representing the class.

In Trend Star Continental v. Branham, 220 Ga. App. 781, 783, n. 2 (469 SE2d 750) (1996), we noted that a trial court may certify an action as to common questions of law or fact and then order individual trials as to the remaining questions. Here, it appears that the only common question of any significance was litigated and decided with respect to these plaintiffs in Duffy I. This further supports the trial court’s conclusion that, in the current posture of this action, individual questions predominate over any questions of law and fact common to the class members. "Intervention after judgment is not usually permitted and to justify it requires a strong showing.” (Citations omitted.) Sta-Power Indus., supra at 958 (3).

Accordingly, the trial court did not abuse its discretion in refusing class certification. We need not consider the Duffys’ enumerations of error concerning the trial court’s alternative grounds for denying class certification, because “a correct decision of a trial court will not be reversed regardless of the reasons given therefor.” (Citations and punctuation omitted.) Manderson & Assoc. v. Gore, 193 Ga. App. 723, 732 (7) (389 SE2d 251) (1989); see also Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991) (judgment right for any reason will be affirmed).

2. In their remaining enumeration of error, the Duffys complain that the trial court erred in vacating its order allowing them to amend their complaint to assert a claim for attorney fees. After this court reversed in Duffy I, the Duffys filed a motion for leave to amend their complaint to assert a claim for attorney fees. The trial court allowed the amendment because the Duffys’ motion for class certification remained pending and all matters in the case were not resolved. In its order denying class certification, the trial court observed that the Duffys had never amended their complaint to state a class action, but instead had proceeded by motion. The trial court concluded that this method was inadequate to state a class action claim. Once the judgment and remittitur returned in Duffy I, the trial court reasoned, no substantive issues remained to be decided in the trial court. Citing Hunt v. Henderson, 178 Ga. App. 688, 691 (344 SE2d 470) (1986), the trial court concluded that its decision to allow the Duffys to amend their complaint had been in error. The trial court therefore vacated its order allowing the amendment and dismissed the Duffys’ motion to amend their complaint.

We agree that the trial court correctly found no basis for the Duf-fys’ claim for attorney fees, but we arrive at that conclusion by a slightly different route. “While the right to amend is very broad, it may not be exercised after the case has been tried and judgment rendered therein. [Cit.]” Hunt, supra; see also Summer-Minter & Assoc. v. Giordano, 231 Ga. 601, 606-607 (203 SE2d 173) (1974); Christopher v. McGehee, 124 Ga. App. 310, 312 (2) (183 SE2d 624), aff’d, 228 Ga. 466 (186 SE2d 97) (1971). “Under the Civil Practice Act a pleading may be amended after judgment but only insofar as to make it conform to the evidence.” (Citation and punctuation omitted; emphasis in original.) McCall v. Wyman, 173 Ga. App. 131, 132 (325 SE2d 629) (1984). “A party is not entitled to amend its complaint to assert a new [cause] of action after judgment is entered. P.P.G. Indus. v. Hayes Constr. Co., 162 Ga. App. 151, 152 (2) (290 SE2d 347) [(1982)].” Id. While both Summer-Minter & Assoc., supra, and Christopher, supra, involved litigants attempting to amend their pleadings in order to avoid an unfavorable judgment, in McCall the opposite situation was presented. The plaintiff had prevailed in an uninsured motorist claim defended by her insurer, and judgment was entered in her favor. Later, after a change in the law, she attempted to amend her complaint to assert a claim for penalties and attorney fees against her insurer.

Decided March 27, 2002

Duffy, Feemster & Lewis, Dwight T. Feemster, Matthew M. Bush, for appellants.

Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney, Jr., Ellis, Painter, Ratterree & Bart, Paul W! Painter, Jr., John H. Oldfield, Jr., for appellees.

Here, the Duffys’ belated claim for attorney fees could not be asserted in connection with their individual claim, which had already been decided by this court in Duffy I. Once the trial court declined to certify the class action claim, nothing remained to which the claim for attorney fees could be attached, and the amendment thus fell with the class action claim. “A prerequisite to any award of attorney fees under OCGA § 13-6-11 is the award of damages or other relief on the underlying claim.” United Cos. Lending Corp. v. Peacock, 267 Ga. 145, 147 (2) (475 SE2d 601) (1996). While the trial court’s mechanism for terminating the Duffys’ claim by vacating its original order may not have been correct, the result — the conclusion that the Duffys had no remaining claim for attorney fees — was correct. Under the “right for any reason” rule of Precise v. City of Rossville, supra, we therefore affirm.

Judgment affirmed.

Barnes and Phipps, JJ, concur.


author: Blackburn, Chief Judge.

text:
    A01A2197.
    CRAFT v. THE STATE.
    (563 SE2d 472)
   Blackburn, Chief Judge.

Jackie Craft was convicted by a jury of three counts of aggravated assault, three counts of possession of a firearm during the commission of a felony, and one count of possession of a firearm by a convicted felon. He appeals, arguing that the trial court committed multiple errors and that he received ineffective assistance of counsel. We affirm.

1. In one of his sixteen enumerations of error, Craft argues that the evidence presented by the State was insufficient to prove his guilt beyond a reasonable doubt.

On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies. An appellate court does not weigh the evidence or judge the credibility of witnesses, but only determines whether the adjudication of guilt is supported by sufficient competent evidence.

Bohannon v. State.

Viewed in the light most favorable to support the verdict, the jury was authorized to find that on the afternoon of January 16, 1999, Terry Joe Parham, together with his father, William Parham, his son, Kehon Parham, his daughter, Kayla Parham, and his ex-wife, Lynn Parham, was raking leaves in his yard. On the other side of a vacant lot adjoining Parham’s property, a group of men and women were talking.

At some point, the Parhams realized that certain members of the group were directing racial slurs at them. Three of the group, Jackie Craft, his sister, Judith Swafford, and James Myers, approached the Parhams, cursing and yelling at them. William Parham told them to go back, and Craft and his sister did turn back, but Myers, who had a stick in his hand, came to the edge of the Parham property, yelling that he was “going to beat some damned nigger heads.” As Myers and William Parham yelled at each other, Terry Parham and his son ran to the basement in search of weapons. Terry grabbed an aluminum pipe and returned to his father’s side. When Myers raised the stick, Terry struck Myers with the pipe. Myers fell to the ground, and Terry and his son Kehon jumped on Myers and began fighting with him. At this point, Swafford started firing a handgun into the air. William Parham pulled his son and grandson from Myers and yelled that they needed to seek cover. As William tried to run to the other side of the house, he looked back and saw Craft lying across a parked car and firing in his direction with a rifle. Craft shot William in the leg with the rifle.

A short time later, the police arrived. One officer told Terry and Kehon, who were now armed, to drop their weapons and lie on the ground. Another officer saw Craft and Swafford firing their weapons into the air. When he told them to drop their weapons, the two ran. Following them around a house, he apprehended Swafford. Craft escaped, but the .22 rifle he had used was found under a nearby porch. We find ample evidence from which a rational trier of fact could have concluded beyond a reasonable doubt that Craft was guilty of the offenses with which he was charged. Jackson v. Virginia.

2. Craft maintains that the trial court erred in failing to “either declare a mistrial, exclude the testimony of State witness Mixon, or, instruct the jury that violation of the order of sequestration of witnesses by the prosecutor in regard to State’s witness Mixon should be considered in determining the weight and credit accorded to Mixon’s testimony.” We find no error.

At trial, one of the State’s witnesses, Jimmy Levett, testified that he had seen Craft with a gun but had not seen Craft fire the gun. At a conference outside the presence of the jury, the prosecutor indicated that, earlier that morning, Levett had told him and Eddie Mixon, an investigator with the district attorney’s office, that he had seen Craft firing the gun and that he would be calling Mixon as a witness for impeachment purposes. Because Mixon had been added to the State’s witness list on the first day of trial, the trial court allowed Craft’s attorney to speak with Mixon before he was called to the stand. The prosecutor accompanied Craft’s attorney into the hall and asked Mixon to speak with the attorney, stating, “He’s going to talk to you about a statement that Jimmy Levett made to you this morning. Jimmy has just denied the statement he made earlier.” Upon returning to the courtroom, Craft’s attorney argued that the prosecutor’s statements to Mixon violated the rule of sequestration and asked that the judge declare a mistrial. The trial judge denied the request, finding that the rule had not been violated.

We agree with the trial judge that there was no violation of the rule of sequestration. “The purpose of the rule of sequestration is to ensure that the testimony of a witness who has yet to testify is not influenced by that of another witness.” Quijano v. State. We fail to see how the prosecutor’s statement to Mixon concerning Levett’s trial testimony had any influence on Mixon’s testimony, given that the prosecutor advised both the judge and Craft what Mixon’s testimony would be, and Mixon’s testimony was, in fact, what the prosecutor said it would be.

Further, even were we to assume that the rule was violated, there would be no reversible error.

When the rule of sequestration is violated, the violation goes to the credibility rather than the admissibility of the witness’ testimony. A party’s remedy for a violation of the rule is to request the trial court to charge the jury that the violation should be considered in determining the weight and credit to be given the testimony of the witness. Thus, [Craft’s] first argument — that the trial court should have excluded the testimony of [Mixon] — is without merit. Moreover, [Craft’s] second argument — that the trial court should have charged the jury that the violation should be considered in determining the weight and credit to give [Mixon’s] testimony — is without merit, because [Craft] did not ask the trial court for that relief, but instead asked the trial court, incorrectly, to exclude [Mixon’s] testimony or to grant a mistrial.

(Citations omitted.) Johnson v. State,

3. Craft next argues that he was denied his right to a thorough and sifting cross-examination of State witness Terry Joe Parham. We disagree.

While the right to a cross-examination, thorough and sifting, shall belong to every party as to the witnesses called against him (OCGA § 24-9-64), yet the scope of the cross-examination rests largely within the discretion of the trial judge, to control this right within reasonable bounds, and his discretion will not be controlled by a reviewing court unless it is abused.

Payne v. State. The transcript shows that, after questioning Terry Parham at some length about his recollection of the events in this case and the order in which they occurred, Craft’s attorney said, “All right. I’d like to go over with you one more time the time line.” At this point, the State objected on the grounds that the questions had been asked and answered, and the trial court sustained the objection. We find that “[t]here was no abuse of discretion in refusing, on the cross-examination of a witness, ‘to allow questions repeated that had been asked and fully answered.’ ” McLeod Bros. & Co. v. Wilson Bros.

4. Craft next argues that the trial court improperly excluded, as inadmissible hearsay, testimony concerning a radio dispatch. That radio dispatch, heard by one of the officers who was called to the scene of the shooting, indicated that guns were being fired on both sides. Craft argues that he was not offering the dispatch to prove the fact that there was shooting on both sides but merely to show that the police were aware that this was a possibility and that the dispatch explained the officer’s conduct; the dispatch was, therefore, not hearsay at all but instead original evidence. Again, we disagree.

First, it is clear that Craft, who attempted throughout the trial to show that the Parhams had fired on him, wished to introduce the evidence of the radio dispatch as proof of the fact asserted, i.e., that there was shooting on both sides. As the trial judge ruled, the dispatch was hearsay.

Further, it is clear that the dispatch does not come in as an exception to explain the officer’s conduct.

When, in a legal investigation, the conduct and motives of the actor are matters concerning which the truth must be found, then information known to the actor is admissible to explain the actor’s conduct. But where the conduct and motives of the actor are not matters concerning which the truth must be found, then the information, etc., on which he or she acted shall not be admissible under OCGA § 24-3-2. Only in rare instances will the conduct of an investigating officer need to be explained; as in practically every case, the motive, intent, or state of mind of such an officer will not be matters concerning which the truth must be found. At heart, a criminal prosecution is designed to find the truth of what a defendant did, and, on occasion, of why he did it. It is most unusual that a prosecution will properly concern itself with why an investigating officer did something.

(Citations and punctuation omitted; emphasis in original.) Thompson v. State.

Applying this principle to the case before us, it is clear that the conduct and motives of the officer in receiving the dispatch were not matters concerning which the truth must be found. Thus, the dispatch was not admissible as original evidence under OCGA § 24-3-2, and the trial judge did not err in excluding this testimony. Thompson, supra.

Craft also argues that even if the radio dispatch is hearsay, it was admissible to impeach the officer’s statement that he had received no report of any shooting coming from the Parham residence. The radio dispatch Craft sought to introduce was the second of two dispatches received by the officer. When the officer was questioned on the stand by the State about the nature of the first dispatch he received about the shooting, Craft objected to the officer’s testimony about the first dispatch on the grounds that the dispatch was hearsay. The trial court sustained the objection, and the State made no further inquiry into the content of the first dispatch, advising the officer not to testify to any hearsay. On cross-examination, the following exchange took place between Craft’s attorney and the officer:

[Attorney:] All right. Now, as I remember in your testimony, you said that you had never gotten a report of any shooting from the Parham residence to or towards the Baxter residence. Is that correct?
[Officer:] In my investigation I had never — in questioning people no one told me during my investigation of any shots coming from Parham’s residence towards the Baxter residence.
[Attorney:] All right. Now qualifying it with during your investigation, okay. But earlier today you said you’d received no report.
[Officer:] You wouldn’t let me use hearsay from my radio dispatch.
[Attorney:] All right. Well, I just want to clarify that. The — the truth, though, is on the way there you did receive a report that indicated shooting —.
[State:] Your honor, I object —.
[Attorney:] — going both directions.

We believe that the officer’s explanation of the basis of his earlier statement obviated the need for impeachment through the introduction of the hearsay evidence. Further, exclusion of hearsay indicating that shooting was coming from both sides would only be harmful if Craft had pursued a justification defense; Craft did not argue that he had acted in self-defense but instead argued that he was not the person who shot William Parham. ‘We will not reverse a case for error unless the error is shown to be harmful.” (Punctuation omitted.) Downs v. State.

5. In his fifth enumeration of error, Craft argues that the trial court erred in not admitting into evidence a police logbook, which contained a description of the suspect that was initially radioed to police officers; he contends that the logbook entry constituted Brady material and fell within the business records hearsay exception. In his sixth enumeration of error, Craft argues that the State, in failing to timely deliver the logbook to him, denied him his due process rights under the Fourteenth Amendment. We disagree with both arguments.

The police logbook contained the following description: “10-32 subject . . . eluding on foot, be a white male, overalls, beard, bleeding from the head with a rifle or shotgun.” This description was initially broadcast to police officers by the dispatcher. At the time the trial started, the log was in the possession of the Bremen Police Department and the State attorney was not even aware of its existence until a copy of the log was served on him by Craft the day after the State had rested. Craft became aware of the existence of the log during trial when one of the Bremen police officers informed him that such logs were maintained. The trial judge advised Craft that

if the logs were in fact Brady, they have now been furnished to you, and I will assure you that either or both officers will be made available to you to call. If you feel like that the statements in these logs are helpful to your client, you can call them and use them. You now have the information. I will be sure that both officers are available to you so that you can present their testimony if it supports these statements.

Besides making the officers available to Craft, the trial judge also allowed the dispatcher, who was called as a witness by Craft, to read the suspect description in the logbook to the jury. Given these facts, we do not find that Craft was denied his due process rights through the failure of the State to provide him with the police log. Further, even assuming that the trial court erred in refusing to allow the logbook into evidence, any error was harmless since the statement from the logbook was read to the jury. Where there is other evidence relating to the same issues the error addresses, it is highly probable the error did not contribute to the judgment and is, therefore, harmless. Rogers v. State.

6. Craft asserts that the trial court erred in not giving the jury the pattern jury charge on guilt by association. We find no error. The record shows that the trial court gave the pattern charges on bare suspicion and mere presence at the scene of the crime. “As these charges cover substantially the same principles of law in the requested charge, there was no error.” Tumlin v. State.

7. Craft complains that the trial court erred in not giving his proposed jury charge no. 11. The transcript reveals that jury charge no. 11 concerns use of force in defense of self or others; however, in his brief, Craft’s argument deals with the failure to charge the jury on a defendant’s failure to testify. Whether Craft meant to argue the one or the other, neither has merit. As to the charge on self-defense, Craft did not attempt to prove at trial that he shot the gun in defense of self or others; instead, he took the stand and testified that he did not shoot the gun at all. Since there was no evidence to support a charge on defense of self or others, the trial court did not err in failing to charge on self-defense. Adame v. State. As to the charge on failure to testify, the record shows that this request was withdrawn because Craft did, in fact, testify.

8. Craft next argues that the trial court was premature in reading the Allen charge to the jury. Again, we disagree.

After deliberating for over three hours, the jury sent the trial judge several notes asking for further explanation of reasonable doubt, aggravated assault, and what the State must prove in order to convict. The trial judge brought the jury back into the courtroom and recharged as to these elements. At that time, the trial judge also gave to the jury an Allen charge. The charge was substantially in the wording approved in Spaulding v. State There was nothing coercive about this charge. “It is within the trial court’s discretion whether to give an Allen charge to a jury in disagreement. Furthermore, the decision to give an Allen charge does not require a finding that the jury is deadlocked.” (Punctuation omitted.) Moore v. State. We find no abuse of discretion by the trial court in electing to give the Allen charge to the jury. Id.

9. Craft maintains that the trial court erred in not recharging the jury with all jury instructions before the jury began deliberating in the second part of the bifurcated trial. There is no merit to this enumeration of error.

The trial court fully and completely charged the jury before it deliberated in the first part of the bifurcated trial. The next day, before the second part of the bifurcated deliberations, the trial court asked the jury to recall the charge already given and then gave the jury the additional charge relating to the offense of possession of a firearm by a convicted felon. “We have found no reported case holding that when charges are given fully and completely just before the jury deliberates in the first stage of a bifurcated trial, it is reversible error to fail to repeat them in the second stage held shortly thereafter.” Smith v. State.

10. Craft next argues that the trial court erred in allowing the State to enter into evidence a certified copy of one of his convictions because the State did not prove that the plea was voluntarily given. We do not agree.

“[T]he burden in non-death penalty cases is on the recidivism defendant rather than the State to prove by a preponderance of the evidence that a previous guilty plea was not knowingly and voluntarily entered.” Nash v. State If the defendant satisfies his burden of producing evidence of invalidity, the burden shifts back to the prosecution. Id. at 284.

In this case, the State established the fact of conviction by intro- . ducing a certified copy of a special presentment for which Craft entered a plea of guilty to three counts of violation of the Georgia Controlled Substances Act. Craft then testified that he had entered the guilty plea in return for the State’s agreement to probate the sentence of his sister, a co-defendant in the case. He also stated that he had entered the plea on the advice of his attorney, who was also representing his sister.

Assuming, without deciding, that Craft has produced sufficient evidence of the invalidity of his plea, we find that the State met its burden of showing that the plea was in fact voluntary. Cross-examination of Craft showed that Craft: was educated, having completed five quarters in college; was advised of his rights to a trial by jury and his rights at trial; was advised of the rights he would waive if he entered a guilty plea; and responded in the affirmative when asked if his plea was freely and voluntarily made. After Craft’s testimony, the trial court, cognizant of the Nash decision in weighing the evidence, made a finding that the plea had been freely and voluntarily given. We conclude that the trial court did not err in so finding. Freeman v. State.

11. Craft contends that the trial court erred in not allowing him to present a closing argument on the last count of the indictment in the second phase of the bifurcated trial. We disagree.

In the first phase of the bifurcated trial, the jury found Craft guilty of three counts of aggravated assault and three counts of possession of a firearm during commission of a felony. During the second part of the bifurcated trial, which concerned the one count of possession of a firearm by a convicted felon, the only evidence presented was the certified copy of Craft’s prior conviction and testimony concerning the voluntariness of Craft’s plea of guilty to that prior charge. The question of the voluntariness of Craft’s guilty plea, as explained above, was not an issue for the jury’s determination but was a matter for the trial court. The jury had already found that Craft was in possession of a firearm, and the certified copy of the conviction established the fact of prior conviction. There were, therefore, no issues for either the State or Craft to argue. While a defendant does have the right to be represented at every stage of the trial, we fail to see how Craft was harmed by being denied the (opportunity to argue when there were no issues to be argued. As we stated in Division 4, “[w]e will not reverse a case for error unless the error is shown to be harmful.” (Punctuation omitted.) Downs, supra at 744 (5).

12. Craft next argues that he should be granted a new trial based on newly discovered evidence. This argument has no merit.

The standard for granting a new trial on the basis of newly discovered evidence is well established. “It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.”

Timberlake v. State. “Motions for new trial on the ground of newly discovered evidence are not favored and are addressed to the sole discretion of the trial judge, which will not be controlled unless abused.” (Punctuation omitted.) LeGallienne v. State.

The new evidence to which Craft refers is an affidavit, signed by his sister, Swafford, on June 6, 2000, three months after the trial. In this affidavit, Swafford states: “I dropped the pistol on the ground and ran into my cousins apartment [sic] and grabbed a .22 rifle. I shot it toward the black guys. I thought the shots went into the ground. Jackie turned lose [sic] of James at this point. Jackie ran over and took the .22 out of my hands and fired it into the air, trying to discharge the bullets.”

This new evidence clearly fails to satisfy Timberlake. We begin by noting that, if, as the affidavit states, Craft observed Swafford’s actions and then took the gun from her, he cannot satisfy Timberlake’s initial requirement that the evidence has come to his knowledge since the time of trial. He also fails to satisfy the second prong of Timberlake, that it was not owing to his want of diligence that he did not acquire the evidence earlier. Further, we have serious doubts that the evidence in Swafford’s affidavit is so material that it would have produced a different verdict. As the lower court judge observed in his order denying Craft’s motion for a new trial, the statements in Swafford’s affidavit hardly amount to a confession to the shooting for which Craft was convicted, and the jury found Craft guilty even though the defense presented numerous witnesses in an attempt to contradict the testimony that Craft was the shooter. “Unless it is reasonably apparent from the record that the alleged newly discovered evidence will likely produce a different verdict upon another trial, a motion for new trial based upon that ground should not be granted.” (Punctuation omitted.) LeGallienne, supra at 111 (3). Finally, since Swafford’s statement that she fired the rifle directly contradicts testimony of witnesses for the State, her affidavit only serves to impeach the credibility of those witnesses. Since the failure to show one requirement of Timberlake is sufficient to deny a motion for a new trial, Timberlake, supra at 491, it is abundantly clear that Craft is not entitled to a new trial.

13. Craft asserts, for numerous reasons, that the assistance of his counsel was ineffective. We disagree.

The burden is on Craft to establish that he received ineffective assistance of counsel. Pittman v. State.

To establish a claim of ineffective assistance of trial counsel, the defendant must show that counsel’s performance was deficient and the deficient performance prejudiced the defense. In determining prejudice, the question is whether, without the errors of counsel, there is a reasonable probability that the jury would have had a reasonable doubt of guilt.

(Footnote omitted.) Mitchum v. State. “As always, there is a strong presumption that trial counsel’s assistance was adequate and that counsel’s decisions were made within the bounds of reasonable professional judgment.” Washington v. State

A charge of ineffective assistance of counsel is not judged by a standard of errorless counsel or by hindsight, but rather whether counsel rendered reasonably effective assistance; there is a critical distinction between inadequate preparation and unwise choices of trial tactics and strategy, which are not to be judged by hindsight or result.

Castleberry v. State

After a hearing on Craft’s motion for new trial, the trial court found that Craft’s claim of ineffective assistance of counsel was without merit. Indeed, the trial court concluded that “Defendant’s trial counsel presented a vigorous defense consisting of twelve witnesses and thorough and sifting cross-examination of all of the State’s witnesses over a period of four days.”

The trial court’s findings will be upheld unless they are clearly erroneous. Johnson v. State. After an examination of the record, we find that Craft’s trial counsel conducted a vigorous defense and most of Craft’s objections to counsel’s assistance fall into the category of trial strategy and do not amount to ineffective assistance of counsel.

Craft complains that his trial counsel failed to call certain witnesses, failed to question certain witnesses on various issues, and failed to impeach certain of the State’s witnesses. He also complains that counsel failed to make certain objections or motions. Decisions on which witnesses to call, whether and how to conduct cross-examinations, and what trial motions to make and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client. Reid v. State Craft has not overcome the strong presumption that his counsel’s performance was not deficient and that his actions might be considered sound trial strategy. Carl v. State

Craft argues that counsel’s assistance was ineffective because he did not bring forward a claim of self-defense. At the hearing on the motion for new trial, Craft’s trial counsel testified the theory of the defense was that Craft did not shoot the rifle. Craft took the stand and denied that he had used the gun. “Counsel’s decision as to which theory of defense to pursue is a matter of strategy and tactics; and, as a general rule, matters of tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Punctuation omitted.) Milliken v. State See also Sutton v. State.

Trial counsel’s failure to request a jury charge on a lesser included offense is also advanced by Craft as a basis for his claim of ineffective assistance. This claim is without merit since the evidence did not support a charge on a lesser included offense. Peterson v. State.

There is no evidence that [Craft] merely pointed a weapon at the victim or was otherwise committing either a misdemeanor or a lawful act in an unlawful manner. . . . The only evidence that [Craft] did not commit aggravated assault was his [testimony], in which he admitted his presence [at the scene], but denied that he shot the victim or that he even had a gun. This statement did not show that [Craft] committed any crime at all with regard to the discharge of the gun. Thus, the State’s evidence supported a finding that [Craft] was guilty of [aggravated assault], whereas his denial would have authorized the jury to find him not guilty of any criminal offense. Where, as here, the evidence establishes either the commission of the completed offense as charged, or the commission of no offense, the trial court is not authorized to charge the jury on a lesser included offense.

(Citations omitted.) Cotton v. State.

Craft asserts that counsel’s representation was inadequate because he did not sufficiently consult with Craft. However, Craft “does not describe for us how additional pre-trial communications would have changed the outcome of his trial. Therefore, he has failed to establish that this alleged instance of ineffectiveness prejudiced his defense.” Washington, supra at 430 (2).

We have examined the remaining grounds which Craft sets forth in support of his claim that his counsel’s assistance was ineffective and find them to be without merit. Pretermitting whether trial counsel’s performance was deficient for any of the reasons advanced, the issue is “whether if such deficiency had not occurred, a reasonable probability exists that a different verdict would have been reached.” Carl, supra at 63-64. We conclude that it would not.

14. In his next enumeration of error, Craft claims that his conviction should be overturned because of improper contact between the jury and outsiders. This enumeration of error is without merit.

“The trial court’s decision on a motion for new trial will be upheld on appeal unless it [is] an abuse of discretion.” Lisle v. Willis. At the hearing on the motion for new trial, Craft alleged improper jury contact by Mixon, an investigator with the district attorney’s office, and by Joey Rutherford, the bailiff in charge of Craft’s jury. Craft and his sister, Swafford, testified that they saw both Mixon and Rutherford laughing and shaking hands with jurors, although they did not hear any words exchanged. In the order denying Craft’s motion for a new trial, the judge concluded that there had been no improper communication with the jury, writing:

Both Mixon and Rutherford were called as witnesses for the State and both denied having any conversations with jurors about the facts of defendant’s case. It should be noted that Rutherford was a sworn bailiff who was charged with supervision of defendant’s jury which required some minimal contact with jurors during recesses. It should also be pointed out that upon calling Eddie Mixon to the stand, defendant admitted he was mistaken about Mixon. This contention is without merit.

The trial court did not abuse its discretion in finding that there had been no improper communication with the jury and denying Craft’s motion for a new trial on this ground.

15. In his final enumeration of error, Craft argues that his conviction should be overturned because the trial judge engaged in improper communications with the assistant district attorney. This enumeration of error has no merit.

Craft claims in his brief that the trial judge “consulted with the District Attorney’s office” and that “[t]his communication substantially altered the outcome of the hearing by bolstering the State’s case.” An examination of the transcript of the hearing reveals that the judge wanted to hear from two witnesses whose testimony would be relevant to issues raised at the hearing on the motion for new trial and that he instructed the district attorney’s office to call these witnesses so that they could testify. When he told Craft and the attorney representing him at the hearing that he had instructed the district attorney’s office to call the witnesses, they thanked the judge. Craft made no objection to the testimony of the witnesses at the hearing and, in fact, cross-examined one of them, Craft’s trial counsel, at length.

Decided March 27, 2002

James J. Anagnostakis, for appellant.

James R. Osborne, District Attorney, Laura L. Herrin, Assistant District Attorney, for appellee.

“In this state, it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which might have been raised.” (Punctuation omitted.) Curtis v. State. Thus, nothing has been preserved for our review.

Even if the objection had been preserved for review, we do not approve of Craft’s characterization of the trial judge’s action. The extent of the trial judge’s communication with the district attorney’s office was to leave instructions that certain witnesses be asked to attend the hearing. In simply instructing the district attorney’s office to call the witnesses to the hearing, the trial judge hardly “consulted with the District Attorney’s office” in a manner that “substantially altered the outcome of the hearing by bolstering the State’s case.”

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Bohannon v. State, 208 Ga. App. 576 (1) (431 SE2d 149) (1993).

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

        Quijano v. State, 271 Ga. 181, 183 (2) (516 SE2d 81) (1999).

        Johnson v. State, 258 Ga. 856, 857-858 (4) (376 SE2d 356) (1989).

        Payne v. State, 258 Ga. 711, 712 (2) (373 SE2d 626) (1988).

        McLeod Bros. & Co. v. Wilson Bros., 108 Ga. 790 (2) (33 SE 851) (1899).

        Thompson v. State, 201 Ga. App. 646, 648 (3) (411 SE2d 886) (1991).

        Downs v. State, 240 Ga. App. 740, 744 (5) (524 SE2d 786) (1999).

        . Rogers v. State, 247 Ga. App. 219, 224-225 (543 SE2d 81) (2000).

        Tumlin v. State, 274 Ga. 309, 310 (3) (553 SE2d 592) (2001).

        Adame v. State, 244 Ga. App. 257, 262 (534 SE2d 817) (2000).

        Spaulding v. State, 232 Ga. 411, 414 (207 SE2d 43) (1974).

        Moore v. State, 215 Ga. App. 626, 628 (3) (451 SE2d 534) (1994).

         Smith v. State, 244 Ga. App. 512, 513 (1) (539 SE2d 504) (2000).

        Nash v. State, 271 Ga. 281 (519 SE2d 893) (1999).

        Freeman v. State, 244 Ga. App. 393, 397 (535 SE2d 349) (2000).

        Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980).

        LeGallienne v. State, 180 Ga. App. 108, 111 (3) (348 SE2d 471) (1986).

        Pittman v. State, 274 Ga. 260, 264 (553 SE2d 616) (2001).

        Mitchum v. State, 274 Ga. 75, 76 (2) (548 SE2d 286) (2001).

        Washington v. State, 274 Ga. 428, 430 (2) (554 SE2d 173) (2001).

        Castleberry v. State, 274 Ga. 290, 294 (4) (553 SE2d 606) (2001).

        Johnson v. State, 266 Ga. 380, 383 (2) (467 SE2d 542) (1996).

        Reid v. State, 235 Ga. 378, 379 (219 SE2d 740) (1975).

        Carl v. State, 234 Ga. App. 61, 64 (506 SE2d 207) (1998).

        Milliken v. State, 230 Ga. App. 810, 812 (2) (b) (498 SE2d 127) (1998).

        Sutton v. State, 210 Ga. App. 247, 248 (435 SE2d 748) (1993).

        Peterson v. State, 212 Ga. App. 147, 152 (441 SE2d 481) (1994).

        Cotton v. State, 274 Ga. 26, 27 (2) (549 SE2d 71) (2001).

        Lisle v. Willis, 265 Ga. 861, 864 (3) (463 SE2d 108) (1995).

        Curtis v. State, 212 Ga. App. 237, 239 (4) (441 SE2d 776) (1994).