author: Mikell, Judge. Pope, Presiding Judge, Eldridge, Judge,

text:
    A01A1090.
    BAKER v. THE STATE.
    (556 SE2d 892)
   Mikell, Judge.

After a jury trial, Chris Baker was convicted of driving under the influence of alcohol to the extent that he was a less safe driver. Baker appeals his conviction, arguing that the trial court improperly denied his motion in limine to exclude evidence gathered from a roadblock, erroneously admitted his alco-sensor test results, and incorrectly charged the jury on the horizontal gaze nystagmus (“HGN”) evaluation. We reverse.

On appeal, “this court views the evidence in the light most favorable to support the verdict, and an appellant no longer enjoys a presumption of innocence.” (Punctuation omitted.) Dumas v. State, 239 Ga. App. 210-211 (1) (521 SE2d 108) (1999). Further, “[w]here the evidence is uncontroverted and there is no issue as to witness credibility, ... we review de novo the trial court’s application of the law to the undisputed facts.” State v. Becker, 240 Ga. App. 267, 268 (523 SE2d 98) (1999).

The uncontroverted evidence shows that on May 5, 2000, while working at a roadblock, Officer A. M. Wright stopped Baker and asked for his driver’s license and insurance information. Officer Wright testified that he noticed that Baker’s eyes were enlarged, a moderate odor of alcohol emanated from his breath, and his speech was very fast and “stutterish.” Based on these observations, Officer Wright asked Baker to pull to the side of the road.

Responding to Officer Wright’s instructions to recite the alphabet from “C” to “Q,” Baker twice recited the alphabet from C to Z. Each time, Baker’s recitation of the letters between C and Q was unintelligible. Officer Wright then told Baker to exit his vehicle and asked if he would perform several field sobriety tests. Baker agreed to do so.

The first test that Officer Wright administered to Baker was the HGN evaluation. Baker exhibited several clues of impairment. The next tests administered were the walk and turn test and the one-leg stand test. Officer Wright testified that four indicators on the walk and turn test suggest alcohol impairment, and Baker exhibited at least five. On the one-leg stand test, swaying and using one’s arms to balance are the impairment indicators, and Baker exhibited both. Based on Baker’s performance on these tests, Officer Wright concluded that Baker “was definitely under the influence of alcohol.” Officer Wright then offered Baker a preliminary breath test which he agreed to take. Despite Officer Wright’s instructions to blow into the alco-sensor tube, Baker sucked on the tube instead. After Officer Wright explained the instructions again, Baker blew into the tube, and the results were positive for alcohol. Concluding that Baker was not a safe driver, Officer Wright arrested him.

1. During the hearing on Baker’s motion to suppress all evidence gathered at the roadblock, Officer Wright testified that he was not present when one of his supervisors decided to implement the roadblock, and that he could not remember which of the two supervisors had made the decision. In light of this testimony and the fact that Officer Wright was the state’s only witness, Baker contends that the state failed to prove the roadblock was lawful. Thus, he argues, his motion in limine seeking suppression of the evidence should have been granted. We agree.

LaFontaine v. State, 269 Ga. 251 (497 SE2d 367) (1998), articulates the factors to be considered in determining whether a roadblock is lawful. It provides,

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

Id. at 253 (3), citing State v. Golden, 171 Ga. App. 27 (318 SE2d 693) (1984). Baker argues that the state did not prove the first and last of these five factors. The first factor must be examined in light of the recent decision by the United States Supreme Court in City of Indianapolis v. Edmond, 531 U. S. 32 (121 SC 447, 148 LE2d 333) (2000).

City of Indianapolis v. Edmond recites the general rule that stopping a vehicle at a roadblock is a seizure, that only reasonable searches and seizures are allowed by the Fourth Amendment to the United States Constitution, and that seizures are usually unreasonable unless prompted by probable cause or by “individualized suspicion” of wrongdoing, i.e., by an articulable suspicion that the driver, or some other occupant of the particular vehicle stopped, has committed a crime. See Edmond, 531U. S. at 37, 40, citing Michigan Dept. of State Police v. Sitz, 496 U. S. 444, 450 (110 SC 2481, 110 LE2d 412) (1990), and Chandler v. Miller, 520 U. S. 305, 308 (117 SC 1295, 137 LE2d 513) (1997). However, a series of decisions beginning in 1976 with United States v. Martinez-Fuerte, 428 U. S. 543 (96 SC 3074, 49 LE2d 1116) (1976), allowed an ever growing list of exceptions to the general rule. Among many exceptions were decisions validating roadblocks at or near a border to screen for illegal immigrants, Martinez-Fuerte, supra, and United States v. Montoya de Hernandez, 473 U. S. 531 (105 SC 3304, 87 LE2d 381) (1985). Additionally, Sitz, supra, validated the stopping of all traffic to remove impaired drivers from the road, and Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979), validated stops to check driver’s licenses.

All of these exceptions to the general rule were subject to additional procedural requirements imposed by appellate courts to attempt to ameliorate these deviations from the Fourth Amendment. Federal precedents required that the roadblock be conducted pursuant to a plan devised by supervisory personnel and not by officers in the field using their unfettered discretion. Brown v. Texas, 443 U. S. 47, 51 (99 SC 2637, 61 LE2d 357) (1979); Martinez-Fuerte, 428 U. S. at 559. Georgia precedents required, among other safeguards, that “the decision to implement the roadblock” be made by supervisory personnel rather than by officers in the field. See, e.g., LaFontaine, 269 Ga. at 253, citing Golden, supra.

Justice O’Connor, writing for the majority in Edmond, worried that the exceptions were threatening to absorb the general rule. She argued that some line must be drawn or “the Fourth Amendment would do little to prevent such intrusions [roadblocks] from becoming a routine part of American life.” 531 U. S. at 42. The line drawn by O’Connor and her colleagues in Edmond was to invalidate roadblocks or checkpoints whose primary purpose is to uncover evidence of “ordinary criminal wrongdoing.” 531 U. S. at 41, 42. O’Connor’s opinion in no way questions or diminishes the validity of the court’s previous holdings in Martinez-Fuerte and Sitz. Moreover, the Edmond court asserted that the Fourth Amendment would “almost certainly” permit a roadblock “set up to thwart an imminent terrorist attack. . . .” 531 U. S. at 44.

But the increased emphasis in Edmond on the primary purpose of a roadblock makes proof of a valid purpose a constitutional prerequisite to the admissibility of evidence seized at the roadblock. Moreover, because of the well-established rule that supervisory personnel, rather than officers in the field, must make the decisions implementing the roadblock, Edmond now requires us to focus on the primary purpose decreed by the supervisors. As Edmond explains in a somewhat Delphic manner, what is required is “an inquiry into purpose at the programmatic level.” 531 U. S. at 46. Furthermore, “the purpose inquiry in this context is to be conducted only at the programmatic level. . . .” 531 U. S. at 48. Apparently, under the Edmond analysis, the purpose in the minds of the officers in the field, as evidenced by their testimony or their actual conduct at .the roadblock, is not conclusive on the threshold issue of the supervisor’s purpose. Paradoxically, “a program driven by an impermissible purpose may be proscribed while a program impelled by licit purposes is permitted, even though the challenged conduct may be outwardly similar.” 531 U. S. at 47.

In the case at bar, the state attempted to prove, in response to a motion in limine, that the roadblock’s primary purpose was to check for drivers operating vehicles under the influence of alcohol, a clearly valid purpose under Sitz. The evidence offered to prove the purpose was the testimony of the state’s sole witness, Officer Wright of the Atlanta Police Department. Officer Wright testified that the purpose of the roadblock was “for DUI checks” and that the decision to set up the roadblock was made by “my supervisor of the evening.” However, further examination revealed that Officer Wright did not remember which supervisor was on duty and which supervisor decided to implement the roadblock. Wright was not present when the decision was made and “had not participated in [the roadblock] the entire time.”

Wright’s testimony establishes clearly that his purpose was “DUI checks.” His actions that morning and the actions of the other officers on the scene were consistent with that purpose. But his actions are not conclusive evidence of the supervisor’s purpose in implementing the checkpoint. Wright’s precise testimony was:

Q. Thank you. Who called this roadblock?
A. My supervisor of that evening.
Q. And in which city and county was the roadblock held?
A. City of Atlanta, Fulton County.
Q. What was the purpose of this roadblock?
A. For DUI checks.

If this testimony is read as evidence of the supervisor’s purpose, the testimony is hearsay. The testimony could be admitted as original evidence to explain the officer’s conduct. OCGA § 24-3-2. But the statements would nonetheless be inadmissible to evidence the truth of the matters contained in the hearsay testimony. Roger v. State, 224 Ga. 436, 437 (162 SE2d 411) (1968). No objection was made to the evidence at the hearing. But hearsay, even if not objected to, proves nothing. Results Oriented v. Crawford, 245 Ga. App. 432, 439 (538 SE2d 73) (2000).

Moreover, the decision of the United States Supreme Court in Edmond has elevated proof of the supervisor’s “primary purpose” to a constitutional prerequisite of a lawful checkpoint. We do not know from the transcript whether “DUI checks” were the purpose of the supervisor who decided to implement the roadblock or were the purpose of the officers in the field. The burden was on the state to prove that the seizure, i.e., the stopping of Baker’s vehicle, was constitutionally valid. Under the guidance of Edmond, the required proof included evidence of the supervisor’s primary purpose in implementing the roadblock. We will not presume from a silent record that constitutional requirements have been satisfied. Bowers v. Moore, 266 Ga. 893, 895 (471 SE2d 869) (1996). Because the required showing was not met, the trial court erred in not excluding evidence gained by the police at the roadblock. Therefore we must reverse the conviction.

Our decision today does not conflict with the most recent decision on the subject by our state Supreme Court. In Lutz v. State, 274 Ga. 71 (548 SE2d 323) (2001), there was evidence that the decisions of where and when to place the roadblock were made by supervisory personnel rather than field officers and the primary purpose was to examine driver’s licenses and proof of insurance. Id. at 74 (3). The roadblock was also to check for “other violations of Georgia law.” Id. That secondary purpose seems valid under the dictum of the United States Supreme Court in Edmond where the majority opinion stated: “Our holding also does not impair the ability of police officers to act appropriately upon information that they properly learn during a checkpoint stop justified by a lawful primary purpose, even where such action may result in the arrest of a motorist for an offense unrelated to that purpose.” 531 U. S. at 48.

Our own court considered the Edmond decision last term in Wrigley v. State, 248 Ga. App. 387 (546 SE2d 794) (2001). Wrigley comports with Edmond because the error asserted was an allegedly improper purpose for the roadblock, detecting general criminal wrongdoing. We upheld the validity of the roadblock because the record revealed that its primary purpose was to check driver’s licenses and insurance cards. Wrigley, 248 Ga. App. at 390 (2). Edmond’s emphasis on proof of the supervisor’s purpose was not argued or addressed. Other of our decisions which comport completely with Edmond include State v. Dymond, 248 Ga. App. 582 (546 SE2d 69) (2001), and Hodges v. State, 248 Ga. App. 295 (546 SE2d 54) (2001). This court’s seminal decision in State v. Golden, supra, carefully reviewed the United States Supreme Court decision in Prouse, supra, and Martinez-Fuerte, supra, and established the criteria later adopted by our state Supreme Court in LaFontaine. In LaFontaine and Golden, the decision to implement the roadblock was made by supervisory personnel rather than by officers in the field.

Although the holding of the Supreme Court of Georgia in Lutz and the holdings of our decisions mentioned above seem to comport with Edmond, several past decisions of our court are not in accord with Edmond’s insistence that supervisory personnel implement the roadblock for an acceptable primary purpose. In a line of cases beginning with Evans v. State, 190 Ga. App. 856 (380 SE2d 332) (1989) (idea of the roadblock initiated by the field officers), and Mims v. State, 201 Ga. App. 277 (410 SE2d 824) (1991) (state trooper had prerogative to authorize roadblock), we adopted a “totality of the circumstances” test, which in effect allowed perfunctory compliance with LaFontaine and Golden or, in some cases, no compliance at all. This laxity was allowed under the theory that the ultimate test was whether the stop was “reasonable” under the Fourth Amendment. See, e.g., Albert v. State, 236 Ga. App. 146, 148 (511 SE2d 244) (1999). The new guidance of Edmond indicates that perfunctory compliance will no longer suffice. Now the state must prove not only that the decision to implement the roadblock was made by supervisory personnel but also must prove what “primary purpose” motivated the supervisors.

The two dissents erroneously argue that our decision today would require the prosecution in each roadblock case to call a supervisor to testify to the roadblock’s purpose. Instead, what we hold is that the state must present some admissible evidence, testimonial or written, of the supervisor’s purpose, i.e., purpose at the “programmatic level,” in the words of Edmond. In the case at bar, Officer Wright did not know which supervisor decided to implement the roadblock, nor was he present when the decision was made. The dissents’ scholarly references to Castell v. State, 250 Ga. 776 (301 SE2d 234) (1983), and to Professor McCormick would be controlling if Officer Wright had testified as to the words spoken by his supervisor. However, neither “collective knowledge” of the field officers nor the actions of the officers on the scene are competent evidence of purpose at the “programmatic level.”

Nor can we agree with the apparent premise of the dissents, based on our decision in Heimlich v. State, 231 Ga. App. 662 (500 SE2d 388) (1998), and its progeny, that the five factors of LaFontaine are not “absolute criteria.” The factors in LaFontaine as modified by Edmond are not general guidelines but are minimum constitutional prerequisites. For example, the role of supervisory officers in implementing roadblocks and choosing the location is emphasized in several decisions of the United States Supreme Court. See, e.g., Martinez-Fuerte, 428 U. S. at 559; United States v. Brignoni-Ponce, 422 U. S. 873, 882-883 (95 SC 2574, 45 LE2d 607) (1975). We cannot evade the teaching of these controlling precedents by weighing the “totality of the circumstances.” See, e.g., Evans v. State, 190 Ga. App. 856 (380 SE2d 332) (1989). See generally LaFontaine, 269 Ga. at 257, n. 14 (Sears, J., concurring in part and dissenting in part) (“To the extent that the Court of Appeals of Georgia has rejected the notion that control of a roadblock by supervisory personnel is a prerequisite to the constitutionality of the stop ... I would overrule those cases.”) (citation omitted). The “totality of the circumstances” test is applied only after it has been determined that the minimum constitutional standards discussed herein have been satisfied.

We must follow the United States Supreme Court’s interpretation of Fourth Amendment requirements, and therefore we overrule the following decisions: State v. Sherrill, 247 Ga. App. 708, 710 (2) (545 SE2d 110) (2001) (witness had “no personal knowledge of the supervising officer who actually authorized the roadblock, and the State was unable to come forward with this information at the hearing”); Boyce v. State, 240 Ga. App. 388 (523 SE2d 607) (1999) (field officer decided); Albert v. State, 236 Ga. App. 146, 147 (1) (511 SE2d 244) (1999) (although roadblock was established “pursuant to department [al] policy,” decision to implement this roadblock made by field officers); Payne v. State, 232 Ga. App. 591 (502 SE2d 526) (1998) (witness did not know which supervisor made decision; no evidence of supervisor’s primary purpose); Heimlich, 231 Ga. App. 662 (supervisor issued “standing order” permitting; field officers decided time and place); Mims v. State, 201 Ga. App. 277 (410 SE2d 824) (1991); and Evans, 190 Ga. App. 856. See generally LaFontaine, 269 Ga. at 257 (Sears, J., dissenting).

In summary, the constitutional validity of roadblocks in Georgia must now be decided in view of our controlling precedent, LaFontaine, as modified by Edmond. Read together those decisions prescribe that a roadblock is valid when (1) the record reflects that the decision to implement the checkpoint in question was made by supervisory officers and not officers in the field and that the supervisors had a legitimate primary purpose. The phrase “decision to implement” includes deciding to have this roadblock, and where and when to have it. The evidence must also show that (2) all vehicles were stopped as opposed to random stops; (3) the delay to motorists was minimal; (4) the roadblock operation was well identified as a police checkpoint; and (5) the screening officer’s training and experience were sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

The roadblock in the case at bar did not meet the first of the criteria listed above. Therefore the evidence should have been excluded, and the judgment is reversed.

2. Baker contends that the state did not prove that the officers who worked the roadblock were sufficiently trained to qualify as screening officers. LaFontaine, supra, directs us to focus on the qualifications of Officer Wright in this case because he determined that it was necessary to administer field sobriety tests to Baker. Officer Wright testified that he received his initial DUI training at the City of Atlanta Police Academy, as well as supplemental training in DUI detection. Furthermore, during his three and a half years as an officer, he made approximately 200 DUI arrests. Accordingly, we find that Officer Wright’s training and experience were sufficient to qualify him to screen motorists for DUI. See Wrigley, supra (an officer with ten years of service who had made over 100 DUI arrests was sufficiently qualified to serve as a screening officer).

3. In his second enumeration of error, Baker contends that the trial court committed reversible error when it admitted his alcosensor results without proof that the alco-sensor was an approved device. We discigree.

In Lewis v. State, 247 Ga. App. 440 (543 SE2d 810) (2000), an officer testified that the defendant’s alco-sensor results were positive for alcohol. He also testified that the alco-sensor was approved by the Georgia Bureau of Investigation. We held that “[e]ven if we were to determine that [the officer’s failure to specify that the device was approved by the Division of Forensic Sciences] was a material omission, there was still no reversible error.” Id. at 441. The same result is warranted here.

Officer Wright testified that the alco-sensor was approved for use in the state, but he did not know who approved it. He also testified that Baker’s alco-sensor result was positive for the presence of alcohol. Furthermore, as in Lewis, here, Officer Wright did not testify that the defendant “failed” the alco-sensor, and the state did not use the alco-sensor result as a measure of the defendant’s blood alcohol level. Therefore, in light of Baker’s testimony that he had been drinking that evening, the open container of beer between the driver’s seat and the door, and Baker’s performance on the other sobriety tests, “we conclude that it is highly probable that this alleged improper foundation did not affect the jury’s verdict.” (Citation omitted.) Lewis, 247 Ga. App. at 442. Channell v. State, 172 Ga. App. 156 (322 SE2d 356) (1984), upon which Baker relies, is inapposite because in that case, the officer testified that the defendant “failed” the roadside sobriety test. Id. at 157. There was no such testimony in this case.

4. Finally, Baker argues that the trial court’s jury instruction on the HGN evaluation was erroneous. The jury charge in question provided:

The HGN evaluation is based on the well-known and medically acceptable principle that a noticeable nystagmus can be caused by the ingestion of alcohol. The HGN evaluation is an accepted common procedure that has reached a state of verifiable certainty in the scientific community and is admissible as a basis upon which an officer can determine that a driver was impaired by alcohol.

Baker argues that by instructing the jury that the test had reached a “state of verifiable certainty,” the court gave the evidence undue weight. We rejected this argument in Waits v. State, 232 Ga. App. 357 (501 SE2d 870) (1998), and again we hold that the charge is a correct statement of law. Id. at 360 (3). Accordingly, the trial court did not err in giving this charge.

Our decision in Division 1 of this opinion is dispositive and requires reversal of the conviction.

Judgment reversed.

Blackburn, C. J., Johnson, P. J., Smith, P. J., Ruffin, Barnes, Miller, Ellington and Phipps, JJ., concur. Pope, P. J., Andrews, P. J., and Eldridge, J., dissent.

Pope, Presiding Judge,

dissenting.

I must respectfully dissent from Division 1 of the majority opinion. I do not believe, as the majority holds, that the decisions of the U. S. Supreme Court or the Georgia appellate courts create a constitutional requirement that a police supervisor must testify as to the purpose of a roadblock.

In City of Indianapolis v. Edmond, 531 U. S. 32, 46 (121 SC 447, 148 LE2d 333) (2000), the U. S. Supreme Court directed that courts must “examine the available evidence to determine the primary purpose of the checkpoint program” at issue. And while the Edmond opinion directs that the inquiry “is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene,” id. at 48, nothing in that opinion, or any other Supreme Court opinion, dictates that only supervisory personnel may give evidence of the programmatic purpose of a roadblock. In fact, the Edmond opinion makes no mention of supervisors at all. Rather, we interpret the Edmond admonishment as directing that we look to the overall intended purpose of the roadblock, and not to the private motivations of the officers involved. And in doing so, the U. S. Supreme Court has directed us to “consider all the available evidence in order to determine the relevant primary purpose.” (Emphasis supplied.) Ferguson v. City of Charleston, 532 U. S. 67, 81 (121 SC 1281, 149 LE2d 205) (2001).

In addition to the directives of the U. S. Supreme Court, we must also consider five factors established by our own Supreme Court for determining the propriety of a roadblock:

A roadblock is satisfactory where [(1)] the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; [(2)] all vehicles are stopped as opposed to random vehicle stops; [(3)] the delay to motorists is minimal; [(4)] the roadblock operation is well identified as a police checkpoint; and [(5)] the “screening” officer’s training and experience [are] sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

LaFontaine v. State, 269 Ga. 251, 253 (3)(497 SE2d 367) (1998). The majority now relies upon the first requirement — that the decision to implement the roadblock must be made by a supervisor — to add as a sixth requirement that only the supervisor may testify as to the purpose of the roadblock.

While LaFontaine relies upon evidence that a supervisor called for the roadblock as one factor in ensuring that a roadblock is not used as a subterfuge for an improper purpose, it does nothing to elevate the role of the supervisor for evidentiary purposes. Instead, the law in this state has always been that we look to the “totality of the circumstances” to determine whether the roadblock was legal. Wrigley v. State, 248 Ga. App. 387, 388 (1) (546 SE2d 794) (2001).

In applying this rule to the case before us, I would find that the evidence was sufficient to show that the primary purpose of the roadblock was to check for DUI violations. While the supervisor’s testimony as to its purpose is one piece of evidence, it is not irrefutable. And perhaps one of the best pieces of evidence would be the orders conveyed to the officers actually implementing the roadblock. Whatever purpose may have been chosen or discussed by supervisors, it is the orders communicated to the officers that truly determine the purpose of the roadblock. The stated purpose dictates the procedures followed and the actions taken by those officers, whatever the true motivations of the supervisors may be,

Here, Officer Wright testified in response to a series of questions directed to him:

Q. Thank you. Who called this roadblock?
A. My supervisor of the evening.
Q. And in which city and county was the roadblock held?
A. City of Atlanta, Fulton County.
Q. What was the purpose of the roadblock?
A. For DUI checks.

Officer Wright thus explained the who, where, and why of the roadblock. From the context of these questions, it can be inferred that he was testifying as to the official purpose communicated to him, and not as to his private motivations in participating in the roadblock. His testimony was therefore relevant evidence of the programmatic purpose of the roadblock.

It is immaterial that months later he could not recall which particular supervisor actually called the roadblock or that he was not present when the decision was made. While Officer Wright may not be able to testify as to what was discussed or decided by his supervisors, he can certainly testify as to what he was told as to the purpose for the roadblock. Thus, Officer Wright’s testimony is not hearsay, but rather is direct evidence of the purpose communicated to the officers involved:

Neither a hearsay nor a confrontation question would arise from use of testimony to prove merely that the statement had been made. The hearsay rule does not prevent a witness from testifying to what he has heard; it is rather a restriction on the proof of fact through extrajudicial statements. From the viewpoint of the Confrontation Clause, a witness under oath, subject to cross-examination, and whose demeanor can be observed by the trier of fact, is a reliable informant not only to what he has seen but also to what he has heard.

(Punctuation omitted.) Castell v. State, 250 Ga. 776, 779 (1) (b) (301 SE2d 234) (1983). See McCormick on Evidence (5th ed. 1999), Vol. 2, Ch. 24, § 249, p. 101.

The majority suggests that this analysis is not applicable because it asserts that Officer Wright did not testify as to the words spoken by his supervisor. But if Officer Wright was not testifying as to what had been communicated to him, his testimony cannot be classified as hearsay. His evidence would simply reflect his understanding of the purpose based upon his own observations and would be admissible. “Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” OCGA § 24-3-1 (a). Whether Officer Wright was testifying as to the purpose communicated to him or as to the purpose he understood from his own observations, his testimony depended solely upon his own credibility.

Therefore, Officer Wright was competent to testify that the decision was made by a supervisor and that it was intended for a legal purpose. That testimony, along with the evidence of the procedures followed at the scene, is sufficient to establish that the roadblock had the legitimate purpose of checking for possible DUI violators.

I am authorized to state that Presiding Judge Andrews joins in this dissent.

Eldridge, Judge,

dissenting.

Under City of Indianapolis v. Edmond {“Edmond”), a DUI check is a permissible purpose for a roadblock. Thus, Edmond’s “purpose inquiry” is inapplicable in this case. In fact, there is no constitutional issue in this case. Instead, this case involves purely an evidentiary issue. The majority concedes that the arresting officer on the scene testified that the purpose of the roadblock was “DUI checks” and that “his actions and the actions of the other officers on the scene were consistent with that purpose.” The majority concludes, however, that there must be evidence that a supervisor’s “primary purpose” for the roadblock was DUI checks. Because I disagree with this evidentiary ruling, I must respectfully dissent.

1. By combining (a) the LaFontaine v. State (“LaFontaine”) procedural criteria that the decision to implement a roadblock was made by supervisory personnel with (b) Edmond’s requirement that the purpose of a roadblock must be constitutionally permissible, the majority extrapolates a new “constitutional prerequisite”: “Edmond has elevated proof of the supervisor’s ‘primary purpose’ to a constitutional prerequisite of a lawful checkpoint.” (Emphasis supplied.) The flaw in the majority’s analysis, however, is the failure to distinguish between different constitutional burdens (read “prerequisites”) and the manner of proof by which such burdens are met.

In roadblock cases, one “constitutional prerequisite” is the State’s burden to show that the roadblock was not set up so as to create an “arbitrary interference” with motorists in violation of the Fourth Amendment. The criteria in LaFontaine illustrate ways by which a State may prove procedurally that a roadblock was not set up in an arbitrary fashion:

[t]he decision to implement the roadblock at issue in this case was made by supervisory personnel rather than by the officers in the field, and the operation was carried out pursuant to specific, pre-arranged procedures requiring all passing vehicles to be stopped at the checkpoint and leaving no discretion to the officers in this regard. It is clear that the delay experienced by passing motorists was minimal, lasting only a minute or two unless a violation was noted, and that the operation was well identified as a police checkpoint.

LaFontaine’s criteria are not “constitutional prerequisites” in and of themselves. Instead, they deal with proof of roadblock procedures in order to establish lack of arbitrary interference.

Edmond, on the other hand, involves a different “constitutional prerequisite,” i.e., the State’s burden to show that the purpose of a roadblock seizure is constitutionally permissible. The proof by which the State demonstrates a constitutional purpose is articulated in Edmond as “we examine the available evidence to determine the primary purpose of the checkpoint program.” This is consistent with Fourth Amendment “totality of the circumstances” review.

What the majority has done herein, however, is to select one of the LaFontaine procedural criteria that prove nonarbitrary interference, i.e., a supervisor made the decision to set up the roadblock at issue, and merge it with the Edmond “constitutional prerequisite” of permissible purpose. From this amalgamation, the majority concludes that the LaFontaine procedural criteria are a “constitutional prerequisite” which goes not to prove nonarbitrary interference, but to prove permissible purpose. I submit the springboard for that leap is nonexistent.

In fact, Edmond does not “modify” LaFontaine, as the majority asserts. The two cases have little to do with each other, except that both deal with roadblocks. Nonarbitrary interference á la the LaFontaine procedural criteria may be shown, yet a permissible purpose for a roadblock still goes unproved. Likewise, a constitutionally permissible purpose for a roadblock may be shown, while a nonarbitrary roadblock procedure goes unproved. Edmond and LaFontaine involve different constitutional burdens, and compliance with such burdens is proved by different evidence. Neither Edmond nor LaFontaine, nor both read together, creates a new evidentiary “constitutional prerequisite” that a supervisor’s purpose for a roadblock program must be proved in order to prove the purpose of a roadblock.

Additional guidance is provided in the recent case of Ferguson v. City of Charleston {“Ferguson”). In Ferguson, the Supreme Court farther articulated the process that accompanies an Edmond evidentiary review of a “programmatic purpose.” Indeed, the Court’s opinion in Ferguson illustrates that, contrary to the majority’s opinion, a review of “purpose at the programmatic level” includes a review of the application and implementation of the program and, thus, the program’s ultimate effect. Citing Edmond, the Ferguson Court stated that “[i]n looking to the programmatic purpose, we consider all the available evidence in order to determine the relevant primary purpose.” The Court then went on to recognize that the Ferguson respondents’ stated purpose for the involuntary seizure/urine screening program at issue was the benign goal of getting substance-dependent women into treatment for health reasons; however, the evidence of record showed that throughout the actual application and implementation of the program, the effect was “to generate evidence for law enforcement purposes.” Thus — again citing Edmond — the Court held that the programmatic purpose for the drug testing/involuntary seizure was unconstitutional, despite the benign purpose stated by respondents.

In an evidentiary application to the case at bar, as well as to other involuntary seizure/roadblock cases, it appears clear that, under Edmond and Ferguson, “all available evidence” demonstrating the programmatic purpose for a roadblock necessarily encompasses the field officer’s understanding of the purpose for the roadblock program and his conduct in the “application and implementation” of the program. The issue is whether the roadblock stop was otherwise implemented and conducted in a manner as to demonstrate that the stop of the vehicle was “reasonable” under the Fourth Amendment. We do not inquire into the motives of individual officers in performing stops; instead, we determine whether all the available evidence demonstrates that the roadblock detention objectively conforms to a constitutionally permissible purpose.

Further, it would be illogical to find that the supervisor’s primary purpose is a “constitutional prerequisite.” Consider: if a supervisor testifies that the “primary purpose” of a roadblock was for a DUI check, but the officer manning the roadblock testifies that the purpose was for drug interdiction and that he asked drivers about drugs and weapons, the supervisor’s testimony would be in dispute as “proof” of the roadblock’s purpose under the totality of the circumstances, i.e., “the available evidence.” Surely the majority does not advocate that a supervisor’s testimony about primary purpose is indisputable and cannot be disproved as pretext by contrary available evidence from the officers on the scene and/or their actions with regard to the implementation of the roadblock. “If this were the case, . . . law enforcement authorities would be able to establish checkpoints for virtually any purpose so long as they [articulate] a license or sobriety check. For this reason, we examine the available evidence to determine the primary purpose of a checkpoint program.” It follows that if a supervisor’s testimony about an alleged “primary purpose” can be substantively disproved by other available evidence in contradiction, then the primary purpose of a roadblock can be substantively proved by other available evidence — with or without the supervisor’s testimony. When the officers’ understanding of a roadblock program and their conduct in effectuating that program demonstrate a constitutionally impermissible purpose for a roadblock detention, then the supervisor’s primary purpose for the roadblock is irrelevant, as irrelevant as was the purpose articulated by the respondents in Ferguson. “Constitutional prerequisites” do not encompass irrelevant matters.

2. An officer’s testimony that the purpose for a roadblock was to “check for DUI” is not hearsay. Such testimony is within the officer’s personal knowledge as to a purpose he is effectuating at a roadblock. Such testimony need not go to a supervisor’s purpose for the roadblock since, as discussed in Division 1, the supervisor’s purpose is irrelevant if the effect of the roadblock, i.e., the field officer’s conduct in applying and implementing the roadblock program, demonstrates a constitutionally impermissible purpose.

Further, the officer’s testimony regarding the purpose for the roadblock is not hearsay any more than is an officer’s testimony that the decision to implement the roadblock was made by supervisory personnel. Both pieces of information are within the collective knowledge of the officers who were called to the scene by their supervisor and ordered to work the roadblock and detain vehicles pursuant thereto. The “collective knowledge” rule is applicable to factual situations where the collective knowledge of law enforcement officers has been relayed to and used by officers actually making or implementing a detention or seizure. In this case, Baker conceded that the roadblock was properly implemented by a watch supervisor: “I’ll concede that the State has satisfied that the roadblock was implemented by supervisory personnel, even though Officer Wright couldn’t remember who.” Officer Wright was summoned to the roadblock by that supervisor: “My supervisor comes over the radio, gives his radio unit, have the following units meet with him at a certain location for a roadblock.” The supervisor was present throughout the roadblock, and Officer Wright testified that the purpose of the roadblock was

Decided December 3, 2001

Chestney-Hawkins Law Firm, Robert W. Chestney, for appellant.

to detect the low level DUI as far as the actual type of a DUI person on the road that not everybody else is going to see, as far as the people that’s — the low level type of people, where the average officer out on the side of the road could be behind him and not exactly detect him from the way he’s driving, but actually still be considered a less safe driver.

There is no hearsay issue with regard to Officer Wright’s personal knowledge of the purpose of a roadblock he was executing under orders from his supervisor. Wright was the one actually effectuating the purpose.

I am authorized to state that Presiding Judge Andrews joins in this dissent.

Joseph J. Drolet, Solicitor-General, A. Dionne Allen, Katherine Diamandis, Assistant Solicitors-General, for appellee.

       OCGA § 40-6-391 (a) (1). Baker was acquitted of violations of OCGA § 40-6-391 (a) (2) and (4). Baker was also convicted of three other violations, none of which are pertinent to this appeal.

        Edmond was announced on November 28, 2000. Trial in the case at bar began on October 31, 2000, and judgment was entered on November 2, 2000. New rules for the conduct of criminal prosecutions must “be applied retroactively to all cases, state or federal, pending on direct [appeal] or not yet final. . . .” Griffith v. Kentucky, 479 U. S. 314, 328 (III) (107 SC 708, 93 LE2d 649) (1987).

        Prouse invalidated a discretionary, suspicionless spot check of a motorist’s driver’s license but suggested in dicta that “[questioning of all oncoming traffic at roadblock-type stops” would be valid. 440 U. S. at 663 (VII).

       The roadblock approved in the leading Georgia decision, LaFontaine, supra, might be invalid under the Edmond analysis. The primary purpose of the LaFontaine roadblock was to detect “any violation of Georgia law, whatsoever.” (Punctuation omitted.) 269 Ga. at 254 (Sears, J., dissenting).

       See generally Allison, The Constitutionality of Drug Interdiction Checkpoints, 69 U. Cin. L. Rev. 671 (2001) (discussing circuit court decision in Edmond)-, Kellman, Biological Terrorism: Legal Measures for Preventing Catastrophe, 24 Harv. J. L. & Pub. Pol’y 417 (2001).

       But see New Jersey v. T. L. O., 469 U. S. 325, 341 (III) (105 SC 733, 83 LE2d 720) (1985) (search must be “ ‘reasonably related in scope to the circumstances which justified the interference in the first place’ ”).

       Permissible primary purposes are those which serve “special needs, beyond the normal need[s of] law enforcement,” and include elimination of immediate, vehicle-bound threats to life and limb, e.g., sobriety checkpoints and driver’s license examination, special circumstances such as border patrol checks near borders, and emergencies such as “an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route.” (Punctuation omitted.) Edmond, 531 U. S. at 37, 44.

       In the following decisions, the defendant either did not challenge the lack of a supervisor’s decision, conceded that point, or the evidence did show a proper decision and a proper primary purpose: Wrigley, 248 Ga. App. 387; Dymond, 248 Ga. App. 582; Hodges, 248 Ga. App. 295; Loney v. State, 245 Ga. App. 376 (537 SE2d 780) (2000); State v. Ruiz, 243 Ga. App. 337 (531 SE2d 418) (2000); State v. Stearns, 240 Ga. App. 806 (524 SE2d 554) (1999); Martinez v. State, 239 Ga. App. 662 (522 SE2d 53) (1999); State v. Manos, 237 Ga. App. 699 (516 SE2d 548) (1999) (roadblock invalid because not ail cars stopped); Burns v. State, 236 Ga. App. 3 (510 SE2d 865) (1999) (trial court’s ruling about supervisor not clearly erroneous); Workman v. State, 235 Ga. App. 800 (510 SE2d 109) (1998) (no challenge to “constitutional configuration” of roadblock); White v. State, 233 Ga. App. 276 (503 SE2d 891) (1998) (decision by supervisors for proper primary purpose).

       The precedents assume that supervisors will be “unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class.” Martinez-Fuerte, 428 U. S. at 559 (IV) (B). See generally LaFontaine, 269 Ga. at 257 (Sears, J., dissenting), quoting MartinezFuerte and 4 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (3rd ed. 1996), § 10.8 (d), p. 697.

       Indeed, Baker’s counsel conceded that the state had proven that the roadblock was established by supervisory personnel.

       531 U. S. 32 (121 SC 447,148 LE2d 333) (2000).

       “It goes without saying that our holding today does nothing to alter the constitutional status of the sobriety . . . checkpoints that we approved in [Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (110 SC 2481, 110 LE2d 412) (1990)].” Id. at 47.

       269 Ga. 251, 253 (3) (497 SE2d 367) (1998).

       Id.

        State v. Golden, 171 Ga. App. 27, 29 (2) (318 SE2d 693) (1984), cited by LaFontaine, supra at 253 (review of the “circumstances” of the case).

       See United States v. Martinez-Fuerte, 428 U. S. 543, 559 (96 SC 3074, 49 LE2d 1116) (1976), cited by the majority (lack of arbitrariness shown when “official” chooses location of roadblock; field officer should not choose roadblock location).

        Edmond, supra at 46.

        Holsey v. State, 271 Ga. 856, 862 (524 SE2d 473) (1999); Wrigley v. State, 248 Ga. App. 387, 388 (546 SE2d 794) (2001).

       532 U. S. 67 (121 SC 1281, 149 LE2d 205) (2001), citing Edmond, supra.

       Id., 532 U. S. at 81.

       (Emphasis omitted.) Id. at 81-99.

        Michigan Dept. of State Police v. Sitz, supra at 450; LaFontaine, supra at 252; State v. Ruiz, 243 Ga. App. 337, 339 (531 SE2d 418) (2000).

        Edmond, supra at 48 (“[T]he purpose inquiry in this context is to be conducted only at the programmatic level and is not an invitation to probe the minds of the individual officers acting at the scene.”).

       “[A] program driven by an impermissible purpose may be proscribed while a program impelled by licit purposes is permitted, even though the challenged conduct may be outwardly similar.” Edmond, supra at 47.

       Id. at 46.

        LaFontaine, supra at 252 (3) (trooper testified that decision to implement roadblock was made by a State Patrol supervisor); accord, e.g., State v. Dymond, 248 Ga. App. 582, 583 (546 SE2d 69) (2001); Martinez v. State, 239 Ga. App. 662 (522 SE2d 53) (1999); Hooten v. State, 212 Ga. App. 770, 776 (442 SE2d 836) (1994); O’Kelley v. State, 210 Ga. App. 686, 687 (2) (436 SE2d 760) (1993); Sapp v. State, 188 Ga. App. 700 (374 SE2d 114) (1988).

        Burgeson v. State, 267 Ga. 102, 105 (475 SE2d 580) (1996); Brannon v. State, 243 Ga. App. 28, 34 (530 SE2d 761) (2000); Russell v. State, 236 Ga. App. 645, 650-651 (4) (512 SE2d 913) (1999).

        Burgeson v. State, supra at 105; Goodman v. State, 255 Ga. 226, 229 (13) (336 SE2d 757) (1985).

       Officer Wright could not remember whether Lieutenant Charles or Sergeant Culberson called for the roadblock at issue, but one of the two called for it. See State v. Sherrill, 247 Ga. App. 708, 710 (545 SE2d 110) (2001) (officer’s testimony that he reported to the roadblock at direction of superior and was under superior’s supervision on site sufficient to establish first LaFontaine factor).

       Trial testimony can be considered on appellate review of the denial of a motion in limine. State v. Brodie, 216 Ga. App. 198, 199 (1) (c) (453 SE2d 786) (1995).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A01A1637.
    YE v. KROGER COMPANY.
    (556 SE2d 879)
   Phipps, Judge.

Zhifei “Jeffrey” Ye sued the Kroger Company for malicious prosecution, false arrest and false imprisonment. After Kroger moved for summary judgment on all claims, Ye withdrew his false arrest claim. The trial court granted Kroger’s motion on the remaining claims. The court concluded that the existence of probable cause defeated the malicious prosecution claim and that the reasonableness of both the decision to detain and the manner and length of Ye’s detention precluded a claim for false imprisonment. Because we agree with the trial court’s assessment of the malicious prosecution claim and find that Ye has abandoned any challenge regarding his false imprisonment claim, we affirm.

On the evening of December 12,1998, Ye went to the Kroger grocery store on College Station Road in Athens to shop for a few items. He first went to the condom display and selected a box of condoms. While carrying the box of condoms in his hand and partially concealing the box with his sleeve, he picked up other items, including tangerines and contact lens solution. Before he reached the checkout area, Ye put the box of condoms in his right front pants pocket. The box remained in his pocket while he paid for the other items and exited the store.

A Kroger employee saw Ye place the condoms in his pants pocket and pointed him out to the assistant store manager. The employee and assistant manager observed Ye proceed through the checkout without paying for the condoms. The assistant manager then followed Ye out of the store and asked him about the box of condoms in his pocket. Ye admitted that he had not paid for the box of condoms and asked if he could pay for it then. The assistant manager did not answer Ye’s question, but took him to the manager’s office where he completed a shoplifting incident report and called the police. Ye was subsequently arrested for shoplifting, placed in handcuffs and transported to jail. A jury found Ye not guilty of theft by shoplifting.

1. Ye contends that the trial court erred by granting summary judgment on his malicious prosecution claim. He argues that the issue of probable cause should have been submitted to a jury.

“The elements of malicious prosecution include: (1) prosecution for a criminal offense; (2) the prosecution instigated under a valid warrant, accusation, or summons; (3) termination of the prosecution in favor of the plaintiff; (4) malice; (5) want of probable cause; and (6) damage to the plaintiff.” Ordinarily, a jury decides whether probable cause exists, and the judge determines the issue only when the material facts are undisputed. Ye claims that there was a dispute as to whether the box of condoms was at least partially visible even after he placed it in his pocket. The store employee testified that the bulge created by the box was visible and that she could see the box from behind because it caused Ye’s pocket to stick out. Because Ye admits that he placed the box of condoms in his pocket and failed to pay for it before exiting the store, whether the box was completely or only partially hidden is not material. Thus, the existence of probable cause was a proper question for the judge.

Probable cause is lacking when the circumstances are such as to satisfy a reasonable person that the accuser had no ground for proceeding but a desire to injure the accused. Although criminal intent is a material element of shoplifting, a store employee is not required to determine the shopper’s subjective intent before seeking an arrest and prosecution for shoplifting. If Ye’s actions would have caused reasonably prudent persons to believe they had probable cause to prosecute him for shoplifting, Ye may not recover for malicious prosecution.

Two factually similar cases support the trial court’s decision on the issue of probable cause. In Garmon v. Warehouse Groceries Food Center, while Garmon and his wife were grocery shopping, the store manager observed Garmon put a can of snuff in his pocket and keep it there until after the couple had finished shopping and were in the process of purchasing other items. When confronted, Garmon apologized and attempted to pay for the item. The store manager called the police, and Garmon was arrested and taken to jail. We concluded that a reasonably prudent person, with the same knowledge as the store manager, would have believed he had probable cause to prosecute Garmon for shoplifting. Similarly, in Turner v. Bogle, we found probable cause existed to prosecute a customer who was observed taking vitamin pills from a shelf, placing them in his pocket and then proceeding through the checkout line without producing or paying for them.

Consistent with Garmon and Turner, we find that Ye’s actions would have caused a reasonably prudent person with the same knowledge as the assistant store manager to believe he had probable cause to prosecute Ye for shoplifting. Therefore, Ye cannot recover for malicious prosecution, and summary judgment was properly granted.

Decided December 3, 2001.

Alan B. Fecteau, for appellant.

Carlock, Copeland, Semler & Stair, Douglas A. Wilde, for appellee.

2. Ye does not challenge the trial court’s ruling on his false imprisonment claim in his enumeration of errors or any other portion of his appellate brief. Thus, any claimed error regarding the grant of summary judgment on the false imprisonment claim has been abandoned.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

        Medoc Corp. v. Keel, 166 Ga. App. 615-616 (1) (305 SE2d 134) (1983).

        K-Mart Corp. v. Coker, 261 Ga. 745, 746 (1) (410 SE2d 425) (1991).

       OCGA § 51-7-3.

        K-Mart Corp., supra at 747 (2).

       Id. at 747 (4).

       207 Ga. App. 89 (427 SE2d 308) (1993).

       Id. at 92 (2).

       115 Ga. App. 710, 712-713 (2) (155 SE2d 667) (1967).

        K-Mart Corp., supra at 747 (4); Garmon, supra.

       See Court of Appeals Rule 27 (c) (2); Gannon, supra at 95 (4).


author: Blackburn, Chief Judge.

text:
    A01A1662.
    BROWN v. THE STATE.
    (556 SE2d 881)
   Blackburn, Chief Judge.

After pleading guilty, Mitchell Louis Brown appeals his sentence for possession of cocaine with intent to distribute and misdemeanor possession of marijuana, arguing that the trial court erred by imposing sentence pursuant to both OCGA § 17-10-7, the general recidivist statute, and OCGA § 16-13-30 (d), which applies to sentencing for multiple felonies regarding the possession and sale of controlled substances. For the reasons set forth below, we affirm.

The record shows that, at Brown’s sentencing hearing, the State introduced evidence of Brown’s 1990 guilty plea and conviction for possession of cocaine with intent to distribute. The State indicated that it was tendering this evidence in order to trigger the sentencing provisions of OCGA § 16-13-30 (d). In addition, the State introduced evidence of Brown’s additional prior convictions for possession of cocaine with intent to distribute, sale of cocaine, and possession of marijuana with intent to distribute. The State introduced these prior convictions for the purpose of triggering OCGA § 17-10-7 (c).

Based on Brown’s prior convictions, the trial court determined that, pursuant to OCGA § 16-13-30 (d), Brown’s sentence would have to be between ten and forty years in duration since the State had waived a life sentence. The trial court further found that, pursuant to OCGA § 17-10-7 (c), Brown would have to serve the maximum time provided for in its sentence without eligibility for parole. Accordingly, the trial court sentenced Brown to serve 40 years, 25 years incarcerated and 15 years on probation. Brown now appeals this sentence, arguing that only OCGA § 16-13-30 should have been applicable to the determination of his sentence and the trial court erred by applying OCGA § 17-10-7 (c).

OCGA § 17-10-7 (c) provides, in pertinent part, that an individual who has been convicted of three prior felonies must serve the maximum time provided for in his sentence for a subsequent offense. In addition, the offender will not be eligible for parole until the maximum time has been served.

OCGA § 16-13-30 (d) states:

Except as otherwise provided, any person who violates subsection (b) of this Code section with respect to a controlled substance in Schedule I or Schedule II shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment by not less than five years nor more than 30 years. Upon conviction of a second or subsequent offense, he or she shall be imprisoned for not less than ten years nor more than 40 years or life imprisonment. The provisions of subsection (a) of Code Section 17-10-7 shall not apply to a sentence imposed for a second such offense; provided, however, that the remaining provisions of Code Section 17-10-7 shall apply for any subsequent offense.

The plain language of these statutes undermines Brown’s argument that he could not be sentenced under both OCGA §§ 16-13-30 (d) and 17-10-7 (c) for his offenses. OCGA § 16-13-30 (d) explicitly states that, for a third or subsequent offense of OCGA § 16-13-30 (b), the provisions of OCGA § 17-10-7 other than subsection (a) will be applicable.

In fact, OCGA § 17-10-7 (c) applies even to a second offense of OCGA § 16-13-30 (b).

[OCGA § 16-13-30 (d)] clearly states that only the provisions of subsection (a) [of OCGA § 17-10-7] shall not apply to a sentence imposed for a second such offense and also specifically provides that the remaining provisions of Code section 17-10-7 shall apply for any subsequent offense. A well-established canon of statutory construction, inclusio unius, exclusio alterius, provides that the inclusion of one implies the exclusion of others. Applying this rule to OCGA § 16-13-30 (d), we conclude that had the legislature intended for the remaining sections to apply only to offenses subsequent to the second offense, it would not have singled out subsection (a), but would have provided that OCGA § 17-10-7 in its entirety would not apply to a second offense under OCGA § 16-13-30 (b). Therefore, we interpret OCGA § 16-13-30 (d) as providing that although the court may not sentence second time offenders under both OCGA §§ 16-13-30 (d) and 17-10-7 (a), it may sentence second time offenders under both OCGA § 16-13-30 (d) and any remaining provisions of OCGA § 17-10-7.

Decided December 3, 2001

Jerry W. Caldwell, for appellant.

Stephen D. Kelley, District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

(Citations and emphasis omitted.) Blackwell v. State See also Mann v. State (OCGA § 16-13-30 (d) grants discretion to sentence defendants for a third or subsequent conviction to a term between ten to forty years in prison or to life in prison).

For all of the foregoing reasons, Brown’s enumeration is merit-less, and the trial court properly imposed sentence upon him.

Judgment affirmed.

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

       We note that Brown did not object to the admission of any of his prior convictions.

        Blackwell v. State, 237 Ga. App. 896, 897-898 (516 SE2d 787) (1999).

        Mann v. State, 273 Ga. 366 (541 SE2d 645) (2001).


author: Smith, Presiding Judge.

text:
    A01A1767.
    In the Interest of B. M., a child.
    (556 SE2d 883)
   Smith, Presiding Judge.

J. M., the biological father of B. M., appeals an order terminating his parental rights. He contends that the juvenile court inappropriately considered certain evidence, improperly allowed allegations, information, and argument into evidence, misapplied the doctrine of collateral estoppel, and violated his rights to due process. Having determined that all of these contentions are utterly devoid of merit, we affirm.

In considering a challenge to the sufficiency of the evidence in a parental termination of rights case, the evidence must be reviewed in the light most favorable to the juvenile court’s determination. In the Interest of D. B., 242 Ga. App. 763 (531 SE2d 172) (2000). Further, when the evidence shows that any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights have been lost, we defer to the juvenile court’s factfinding. Id.

When so reviewed, the evidence shows that J. M. has a lengthy and extensive history of sexual misconduct and violence. See In the Interest of D. H., 243 Ga. App. 778 (534 SE2d 466) (2000) (providing details of prior incidents of child sexual abuse perpetrated by J. M. against other children). As a result of his previous misconduct and abuse, J. M. forfeited all parental rights to B. M.’s sister and two half-siblings. In affirming the termination of J. M.’s parental rights, this court noted that “the allegation of child sexual abuse by J. M. of J. H. in the presence of D. H. had been proven to the court by clear and convincing evidence and was one basis for the deprivation finding.” Id. at 782.

J. M.’s parental rights to B. M. were not adjudicated in the earlier case. B. M., however, came into emergency state custody in early October 1998 when he was about 18 months old. The precipitating event occurred when B. M.’s mother reported to the Department of Family & Children Services (“DFACS”) and to law enforcement authorities that she saw J. M. fondling B. M. while he watched a pornographic video. She also reported that J. M. threatened to kill her and B. M. When T. H. M., the mother, attempted to retract her allegations, charges that were consistent with J. M.’s prior sexual misconduct with their other young children, she was prosecuted for making a false report of a crime.

DFACS implemented a case plan for reunification with B. M.’s mother. To safeguard the welfare of B. M., the case plan prohibited T. H. M. from allowing J. M. to have contact with B. M. In a May 1999 order, the juvenile court determined by clear and convincing evidence that B. M.’s deprivation was caused by “alleged sexual abuse, domestic violence, failure to protect the child and instability.” While noting that “the father is incarcerated,” the juvenile court nevertheless ordered T. H. M. to “conclude her relationship with the father, have no contact with him and abide by the terms of the family violence order.” In July 1999, the parents obtained a divorce.

In direct violation of a court order and a DFACS case plan, T. H. M. took B. M. with her to J. M.’s home on numerous occasions. In April 2000, T. H. M. and J. M. resumed living together with each paying half the rent. During the termination proceeding, when asked, “just tell us why it was that you violated the Court’s order?” J. M. responded, “Well, that’s my son. That’s my son, you know, you just — the temptation is overwhelming. You know, some things you just can’t say no to.”

A DFACS caseworker, who had also functioned as the case manager for the action involving B. M.’s sister and two half-siblings, was responsible for developing a reunification plan for the mother. The caseworker testified that the divorce was just a “charade.” She testified that DFACS chose not to reunify J. M. with this child because of J. M.’s criminal record, the prior termination of J. M.’s parental rights pertaining to the other children, and the prior allegations of sexual abuse involving J. H. A DFACS supervisor testified that on one occasion T. H. M. displayed visible signs of a beating and appeared “badly bruised.” When asked about the bruises, T. H. M. disclosed that J. M. had beaten her and threatened to kill her and the DFACS supervisor. Although J. M. admitted that he had, in fact, battered T. H. M. by hitting her “in the eye, in the head,” J. M. explained that he had been distressed and missed his son and that “[s]he [was giving] me a lot of trouble.” J. M. also admitted being convicted for the sexual battery of a 17-year-old female.

After the hearing, the juvenile court entered a well-reasoned, highly detailed order that terminated the parental rights of J. M. and T. H. M. and incorporated a protective order therein. Taking judicial notice of prior unappealed orders, the juvenile court found B. M. to be deprived. The court stated that J. M. is “a known, unrehabilitated child molester and sexual deviant who molested this child.” The court noted:

The parents’ treatment or neglect of this child and his siblings and half-siblings represents egregious conduct or evidence of past egregious conduct of the parents toward the child or toward other children of a physically, emotionally, or sexually cruel or abusive nature. In separate cases, the Court previously found that both this child and his half-sister were molested, which is clearly egregious, cruel and abusive. The Court steadfastly maintains these findings of fact and conclusions of law.

Primarily due to the mother’s abysmal failure to protect B. M., her allegiance to an “unfit father” who was a repeat “sex offender,” and her inability to comply with the DFACS case plan, the juvenile court severed her parental ties to B. M. The juvenile court also found:

Having been acquainted with the Court since August 1995, the parents have shown a pattern of deception, a course of misconduct and instability, unaccountability, bent of mind, sexual deviance and a refusal to rehabilitate themselves. Short of a blind reunification, no truer harbinger of continued deprivation exists than this Court’s five-plus year history with the parents. It is without question that the deprivation would indeed continue and probably worsen.

By law, the termination of parental rights requires compliance with a two-step process. OCGA § 15-11-94 (a); In the Interest of B. L. S., 239 Ga. App. 771, 774 (521 SE2d 906) (1999). First, there must be a finding of parental misconduct or inability which requires clear and convincing evidence that (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue or unlikely to be remedied; and (4) the continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-94 (b) (4) (A) (i)-(iv). If these four factors are satisfied, then the court must determine whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure and stable home. OCGA § 15-11-94 (a); In the Interest of L. H., 236 Ga. App. 132, 133 (1) (511 SE2d 253) (1999). Here, the findings entered by the juvenile court fully complied with these statutory requirements.

1. Listing 17 factual findings, J. M. takes issue with each of those findings, contending that they are either untrue or not in evidence. Six of the seventeen findings we decline to consider because they pertain solely to T. H. M., who is not a party to this appeal. Among the other findings that J. M. now seeks to dispute, he claims that he is “not an admitted sexual deviant and judicially determined child molester.”

The juvenile court’s findings were supported by numerous exhibits entered into evidence. The State offered 16 exhibits at the termination hearing, and all 16 were admitted in evidence without objection. Among these exhibits were the termination order pertaining to the three other children, four review orders, a mutual restraining order, two consent orders, and an emergency order. Upon admitting this evidence, the juvenile court apprised all parties of its intention to take judicial notice of the previous orders and to consider them as evidence and as part of the record. Both parents were represented by counsel, and no objection was made. Having posed no objection, J. M. waived any issue as to the admissibility of this evidence including any objection on other grounds. See Ross v. State, 231 Ga. App. 793, 801 (14) (499 SE2d 642) (1998). Any issue relating to the earlier findings in prior orders by the juvenile court was waived. See Hunter v. State, 202 Ga. App. 195, 197 (3) (413 SE2d 526) (1991). Even assuming that in its final order the juvenile court took notice of some facts not entered in evidence, such as allegations that J. M. engaged in sexual misconduct while in military service and that J. M. is a “confirmed sex offender” or “an admitted sexual deviant,” the juvenile court’s conclusion that termination was warranted and in the best interest of the child was amply supported by other evidence that was properly admitted. See In the Interest of S. C. M. H., 238 Ga. App. 159, 165 (5) (517 SE2d 598) (1999).

2. J. M. contends that the juvenile court incorporated information, allegations, argument, and evidence into its order that violated T. H. M.’s constitutional right to due process. T. H. M. is not a party to this appeal, and J. M. lacks standing to assert that T. H. M.’s rights were violated.

3. J. M. asserts that the juvenile court improperly used and applied the doctrine of collateral estoppel in its order. He claims that the juvenile court found B. M. deprived by relying upon a false charge fabricated against him by T. H. M. He points out that he was never convicted of molesting B. M.

Evidence of past parental misconduct or other pertinent misconduct may be considered in deciding whether a child is deprived. Regardless of whether J. M. sexually abused B. M., the record contains ample other evidence from which the juvenile court could have found clear and convincing proof of parental misconduct and unfitness, including evidence of J. M.’s prior sexual abuse of B. M.’s half-sister in the presence of B. M.’s half-brother, J. M.’s criminal record, and his use of violence. See In the Interest of R. E. M., 207 Ga. App. 178, 179 (2) (427 SE2d 512) (1993). As this court found in the earlier case terminating J. M.’s parental rights, there was clear and convincing evidence to show that J. M. had a reprehensible pattern of engaging in the sexual abuse of young children. In the Interest of D. H., supra, 243 Ga. App. at 782-783.

4. J. M. contends that the juvenile court’s finding that “even as far back as February 3, 2000, [J. M.] had no chance of regaining custodial rights,” proves that he was deprived of his right to due process and to a fair and impartial hearing. He further asserts that he could not be found in noncompliance with a case plan because there was no such plan for his reunification with B. M.

The latter argument completely ignores statutory law. Reasonable efforts toward reunification are not required when a court of competent jurisdiction has made a finding of aggravated circumstances including sexual abuse. OCGA § 15-11-58 (a) (4) (A). Nor are such efforts required when the parental rights of the parent to a sibling have been terminated involuntarily. OCGA § 15-11-58 (a) (4) (C).

Decided December 3, 2001.

Christopher T. Adams, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Cheeley & Joyner, John P. Cheeley, for appellee.

The finding from the earlier termination proceeding that J. M. had sexually molested a child in the presence of another child combined with expert testimony that J. M. was not responding to therapy provided clear and convincing evidence of deprivation and that such deprivation was likely to continue. In the Interest of D. H., supra, 243 Ga. App. at 782; see In the Interest ofR. E. M., supra, 207 Ga. App. at 179. By February 2000, B. M. had been in state custody for many months. The juvenile court was fully aware of the other termination proceeding and the current allegations of violence and sexual misconduct. Evidence of that past and present conduct could properly be considered in determining whether the deprivation would be likely to continue if the child were returned to the parent. In the Interest of J.O.L., 235 Ga. App. 856, 858 (510 SE2d 613) (1998).

Nor has J. M. shown how he was deprived of a fair and impartial hearing. J. M. was present at the termination hearing, represented by counsel, testified on his own behalf, had the opportunity to present witnesses and other evidence, and was able to thoroughly cross-examine the witnesses including those from DFACS. Although J. M. offered little evidence favorable to himself, he was not denied the opportunity to do so.

The evidence clearly shows that B. M. was deprived, the deprivation was due to the lack of proper parental care, and the deprivation was likely to continue and was likely to cause serious mental, emotional, and moral harm to him. See In the Interest of A. M. V, 222 Ga. App. 528, 532 (474 SE2d 723) (1996). The trial court did not err in so finding. The fact that J. M. was unable to regain custody of B. M. is plainly attributable to J. M.’s continuing pattern of misconduct and parental unfitness.

Judgment affirmed.

Barnes and Phipps, JJ., concur.

       The two older children, D. H. and J. H., reported that J. M. had “tee tee’d white” onto J. H.’s stomach and that J. M. had forced J. H. to rub his penis with lotion. J. H. was age four when she was victimized. In the Interest of D. H., supra, 243 Ga. App. at 779.

       J. M.’s admission that he was convicted for indecent exposure while serving in the Marine Corps was part of the psychological evaluation conducted by Thomas D. Earles, Ph.D. that was entered in evidence as “Father’s Exhibit 1.”


text:
    A01A1953.
    CRAWFORD v. THE STATE.
    (556 SE2d 888)
   Smith, Presiding Judge.

Stanley Crawford was convicted of armed robbery and was sentenced as a recidivist because of his prior felony convictions. In this appeal, Crawford claims that the trial court erred by failing to grant his motion for discharge and acquittal pursuant to his demand for a speedy trial. He also contends that the evidence did not support his conviction and that his counsel was ineffective by opening the door to the admission of his prior criminal record. Finding no merit to these claims, we affirm.

On appeal, the evidence must be viewed in a light most favorable to the verdict, and Crawford no longer enjoys the presumption of innocence. Patterson v. State, 244 Ga. App. 222-223 (535 SE2d 269) (2000). When so reviewed, the evidence showed that after closing hours, at about 3:00 a.m., Crawford left his job as a cook at a Shoney’s restaurant. He left the restaurant through the front doors, which lock automatically whenever someone exits. Several coworkers noticed that instead of leaving immediately at the end of his shift as he customarily did, Crawford was behaving oddly, in that he kept pacing, talking to other employees, looking out a window, and using the telephone. According to one employee, “His usual routine was once he finished up his work on the cook line, Stanley was out the door. He wasted no time. He said bye to no one. He was gone.”

Almost immediately after Crawford left, a lone gunman wearing a stocking mask suddenly came in the front doors brandishing a revolver. At gunpoint, the robber directed the remaining employees into a walk-in cooler in the rear of the restaurant and locked them inside it. The assailant then forced the manager to open the safe. While trapped inside the cooler, one of the employees, J. S., told the others that she recognized the voice of the gunman as the man who had given her and Crawford a ride home the day before. After the manager opened the safe, the gunman forced him back inside the cooler. The victims heard the sound of a car leaving. After about 45 minutes, they were able to free themselves by kicking open the door of the cooler. The employees all agreed that Crawford was the last person to leave before the robbery. Two of them testified that the robber did not come from the restrooms but had entered through the locked front doors.

When investigators arrived, they conducted repeated tests on the automatic locking mechanism on the front doors, and the mechanism fully engaged and functioned properly. From a photographic lineup, J. S. recognized Willie McKay as the man who had given Crawford and her a ride home on the day before the robbery. Crawford, however, provided investigators with varying names of the driver who gave him a ride home on the night of the armed robbery and the day before. Detective Clifford Byrd testified that Crawford “kept giving me different names” and that none of the names checked out.

At trial, Crawford denied any involvement in the crimes and further denied that McKay had ever given him or J. S. a ride home. Although Crawford testified that a John Beasley provided a ride home to him, no such person testified at trial. Crawford admitted that he and McKay shared an apartment and had been acquainted for 20 years. The jury found McKay guilty of armed robbery, five counts of false imprisonment, and possession of a firearm during the commission of a felony. McKay v. State, 251 Ga. App. 115 (553 SE2d 672) (2001). Crawford was convicted of armed robbery and conspiracy to commit armed robbery.

1. Crawford contends that the trial court erred by failing to grant his motion for discharge and acquittal after the State failed to timely bring him to trial in compliance with his speedy trial demand. He claims that he filed a statutory demand for a speedy trial during the December 1999 term of court and yet was not tried until June 2000.

Discharge and acquittal based on a demand is an extreme sanction that requires strict statutory compliance. Shire v. State, 225 Ga. App. 306, 310 (2) (483 SE2d 694) (1997). Although armed robbery is not a capital offense punishable by death, OCGA § 17-7-171 and not OCGA § 17-7-170 is the statute that applies to that offense. Simmons v. State, 149 Ga. App. 830, 831 (1) (256 SE2d 79) (1979); see Davis v. State, 221 Ga. App. 168, 169 (1) (471 SE2d 14) (1996). Under OCGA § 17-7-171, to effectuate a speedy trial demand, a defendant must fully comply with a three-prong procedure. Smith v. State, 261 Ga. 298, 299 (1) (404 SE2d 115) (1991). A defendant must file a demand with the court; there must be juries impaneled and qualified to try the defendant at both of the first two regular terms of court following the term at which the demand is filed; and at some point during both of the first two regular terms of court following the term in which demand is filed, the defendant must be present in court announcing ready for trial and requesting a trial on the indictment. Levester v. State, 270 Ga. 485 (512 SE2d 258) (1999). The failure to comply with the express language of OCGA § 17-7-171 (b) that the defendant be in court “announcing ready for trial” following the filing of a speedy trial demand operates as a waiver of that demand. Rice v. State, 264 Ga. 846, 847 (452 SE2d 492) (1995). These statutory requirements are mandatory and require “strict adherence, and a defendant may waive the right to a speedy trial by his actions or inaction. [Cits.]” Levester, supra at 487. A defendant must, either through his own actions or those of his attorney, be present in court, announce his readiness to proceed, and request a trial. Id.

Here, Crawford failed to establish full compliance with the third prong since the record does not show that he or his counsel had been present in court, announcing ready for trial, and requesting a trial on the indictment. According to the transcript of February 2, 2000, the State sought to postpone the case so that McKay and Crawford could be indicted and tried together. But the transcript does not show that Crawford announced ready and requested to be tried on the indictment after the State sought the delay. Mere silence or inaction cannot satisfy OCGA § 17-7-171 (b). See Levester, supra at 487. On March 2, 2000, the case was again called. The prosecutor and defense counsel dispute what occurred that day except they agree that the State sought a continuance due to the unavailability of one of the victims. In the absence of a transcript, it cannot be presumed that defense counsel announced ready and requested a trial, especially since the prosecutor claims otherwise. See Cooper v. State, 235 Ga. App. 66, 67 (1) (508 SE2d 447) (1998) (error must be shown by record evidence). The case may have again appeared on trial calendars for March 28 and May 4, but no transcript of any announcements or motions has been provided for those dates. In the absence of evidence to document strict compliance with OCGA § 17-7-171 (b), the trial court correctly refused to dismiss the case against Crawford. State v. Moore, 207 Ga. App. 677, 678 (428 SE2d 815) (1993); see Levester, supra at 487.

2. Crawford contends that the evidence does not support his conviction.

The case against Crawford was largely circumstantial. But even if Crawford did not reenter the restaurant or actively participate in the actual armed robbery, one who intentionally aids or abets the commission of a crime by another person is a party to the crime and equally culpable. Pryor v. State, 179 Ga. App. 293 (1) (346 SE2d 104) (1986). Although no one actually saw Crawford hold or leave the front doors open, there was evidence from which the jury could have decided that he did so. Crawford seemed visibly nervous just before he left. McKay, a lifelong friend of Crawford, gained entry to the restaurant almost immediately after Crawford exited through the front doors. Repeated testing conducted shortly after the crimes established that the front door locks were operating properly and did not malfunction. Entry was made while the manager was still on the premises and occupied with counting the cash. Inexplicably, Crawford offered different names to investigators as to the source of his ride home. McKay and Crawford were seen together in the same vehicle the day before the armed robbery. From this evidence, a rational finder of fact could have found beyond a reasonable doubt that Crawford was a party to the crime of armed robbery. See Graves v. State, 180 Ga. App. 446 (1) (349 SE2d 519) (1986).

Decided December 3, 2001.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, E. Wayne Jernigan, Jr., Roger H. Anderson, Assistant District Attorneys, for appellee.

3. Crawford asserts that he was deprived of effective assistance of counsel at trial because his attorney allowed admission of his prior criminal record. He contends that the decision to place his character in evidence was not a tactical decision “but a complete and total failure to understand [the] law.”

To prevail on an ineffectiveness claim, an appellant must overcome the strong presumption that his trial counsel’s conduct fell within the wide range of reasonable professional performance. Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996). And, tactical decisions, even if they misfire, do not generally equate with ineffectiveness. Harper v. State, 232 Ga. App. 224, 227 (2) (d) (501 SE2d 591) (1998).

Here, at the motion for new trial hearing, defense counsel explained that Crawford was an extremely talkative client and, in his opinion, likely to “open the door” to the introduction of evidence about his prior convictions. After multiple interviews with Crawford, defense counsel decided it would be preferable to elicit the unfavorable information about the past crimes from Crawford on direct. None of Crawford’s prior crimes involved violence or use of a weapon. Trial counsel testified that part of the defense strategy was to establish that Crawford had no history of violence, willingly admitted his past mistakes, did not try to conceal his past from the jury, and had become “a working man.” Although reasonable minds may disagree after the fact, effectiveness is not judged by hindsight or the results of the trial. Williams v. State, 214 Ga. App. 106 (446 SE2d 789) (1994). Because the trial court’s finding that Crawford was not denied effective assistance of counsel is not clearly erroneous, it must be affirmed. Id.

Judgment affirmed.

Barnes and Phipps, JJ, concur.


author: Eldridge, Judge.

text:
    A02A0123.
    BARGE v. MELVIN CARMICHAEL ENTERPRISES, INC.
    (556 SE2d 906)
   Eldridge, Judge.

On June 4, 1998, at approximately 11:40 a.m., Betty Rose Barge slipped and fell on some ham salad that had been spilled on the floor of aisle seven of Zack’s Discount Foods when a customer apparently dropped a plastic ham salad container in the aisle on the way to the checkout counter; picked up the cracked container, leaving ham salad on the floor; returned the cracked container to the refrigerated foods section, burying it under other containers; picked up an unscathed container of ham salad; and checked out of the grocery store without informing anyone what had happened. Barge suffered injury from her fall and brought suit against Zack’s. The trial court granted Zack’s motion for summary judgment, finding that Barge failed to show how long the ham salad had been on the floor. The court determined that a plaintiff must put forth evidence as to how long a foreign substance has been on a defendant’s floor before a defendant has any obligation to come forward with evidence of a reasonable inspection plan. For the reasons that follow, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

The evidence is uncontested that ham salad left on the floor caused Barge’s fall. In addition, the evidence in this case does not show that Zack’s had actual knowledge of the ham salad on the floor. Instead, Barge contends that Zack’s had constructive knowledge of the hazard. In that regard,

[c]onstructive knowledge may be established by showing that an employee of the proprietor was in the immediate area of the hazardous condition and could have easily seen the substance or that a foreign substance remained on the floor for such a time that ordinary diligence by the proprietor should have effected its discovery.

We have further held, contrary to the trial court’s conclusions, that “in order to withstand a motion for summary judgment, a plaintiff need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident.” And this holding is grounded in common sense. Absent a showing that some type of reasonable inspection procedure is in place and actually being carried out, it does not matter how long a foreign substance has been on the floor, because the favorable inferences to which a plaintiff is entitled on summary judgment as nonmovant would permit the conclusion that the hazardous substance would not have been discovered timely anyway in order to remove it.

With these principles in mind, the evidence of record shows that not only did Zack’s fail to have “reasonable” inspection procedures in place, Zack’s had almost no inspection procedures in place at the time of the incident. The record shows that in 1998, at the time of Barge’s fall, Zack’s relied principally on Willie Clifford Lackey, Jr. to inspect the aisles of the store. By deposition, Lackey testified that his main duties at the store were to bag groceries and to bring in shopping carts from the parking lot. Lackey testified that prior to the store’s opening at 7:00 a.m. on the incident date, he walked the aisles, shelving items that had been left out from the day before: “they asked me to check the aisles in the mornings when I come in.” He testified that after the store opened, “I start doing my job inside bagging groceries.” Lackey stated that he could not inspect the aisles on a regular basis because of his bagging duties: “Well, you can’t — sometimes you can’t do it in regular intervals, but I done it as quickly as I could because my job consists of bringing in buggies and bagging groceries and taking groceries out and whatever I had to do up there.” Lackey testified that he had no idea when any inspection was done on the aisles on June 4,1998. He also stated that he did not know who would have inspected the aisles if he did not, because inspecting the aisles was his job. Lackey testified that when he was too busy to check the aisles, he would try to get someone else to do it: “If I asked them to do something, if they had time, they would. And if they didn’t I’d try to get somebody else to. But that’s about it.” And that is about it.

The owner of Zack’s, Beneverly Carmichael, testified by deposition that Lackey was the one responsible for checking the aisles “on and off all day.” In contradiction of Lackey’s testimony, Carmichael testified that different employees were also assigned on a daily basis to check the aisles: “I’m not real sure how often. It’s done hourly, but, you know, I’m not — different ones do it. . . . They’re assigned it daily, one a day has to do it, but ... I don’t know if they were just asked when you come in in the morning or not, but people did check it.” Carmichael also testified that she had no idea when any inspection was done on June 4, 1998; who would have performed such inspection; or who would have assigned such inspections.

Deposition testimony was also taken from Jerry Williamson, who served as produce manager in 1998. However, he specifically stated that he could speak only to his own inspection procedures in the produce department and could not testify about store-wide inspections. Barge’s fall did not take place in the produce department, although Zack’s for the first time asserts by brief that it did. We find this assertion disingenuous. As a matter of fact, Williamson testified that the fall occurred 50 to 100 feet from the produce department. Williamson stated that he saw people around Barge, attending to her, “[s]o then I just turned and went back to whatever I was doing at the moment.” Williamson testified that he did not determine what had happened to Barge because the fall did not occur in the produce department: “it’s not part of my job description to if someone were to fall down at that time I was to go out there and inspect it, unless of course, it was in my own department.”

The record further contains deposition testimony from the owner’s son, Benjamin Carmichael, who took over as store manager after the incident date. He testified that Lackey was the only person assigned to check the aisles in the morning and “there was no set interval thereafter.” He testified that since aisle seven where the fall took place was the shortest route to the break area, employees were “up and down” such aisle “every 15 to 20 minutes,” and such employees were “supposed” to check for hazards, although the store manager was in charge of assigning such duties. Notably, the store manager at the time of the incident, Rusty Cochran, was removed as manager after Barge’s fall and quit his employment at Zack’s shortly thereafter; he did not provide deposition testimony. Further, employee turnover at Zack’s is extremely high, and no employees testified as to any inspection of the aisles.

The length of time that a foreign substance must remain on the floor before a proprietor should have discovered it — and, by extension, what constitutes a reasonable frequency of inspections — will vary with the circumstances of each case (the nature of the business, size of the store, the number of customers, the nature of the dangerous condition and the store’s location).

Decided December 3, 2001.

Seacrest, Karesh, Tate & Bicknese, Gary L. Seacrest, Jeffrey P. Raasch, for appellant.

Hall, Booth, Smith & Slover, John E. Hall, Jr., Terrell W. Benton III, for appellee.

Under the evidence of record, we cannot say as a matter of law that Zack’s inspection procedures in June 1998 were “reasonable.” Instead, the evidence presents a jury question, and Zack’s was not entitled to summary judgment on the issue of constructive knowledge. The trial court’s conclusion to the contrary was error.

Judgment reversed.

Smith, P. J, and Ellington, J., concur.

       Appellee-defendant Melvin Carmichael Enterprises, Inc. does business as Zack’s Discount Foods and hereinafter will be referred to as “Zack’s.”

       OCGA § 9-11-56 (c).

        Delta Air Lines v. Clayton County Bd. of Tax Assessors, 246 Ga. App. 225, 226 (539 SE2d 905) (2000).

       (Punctuation omitted.) Straughter v. J. H. Harvey Co., 232 Ga. App. 29 (1) (500 SE2d 353) (1998).

       Id. at 30. See also J. H. Harvey Co. v. Reddick, 240 Ga. App. 466, 470 (522 SE2d 749) (1999); Fussell v. Jimbo’s Log Kitchen, 227 Ga. App. 161, 165-166 (489 SE2d 71) (1997) (whole court); Newell v. Great A & P Tea Co., 222 Ga. App. 884, 886-887 (476 SE2d 631) (1996); Sheriff v. Hosp. Auth. of Houston County, 221 Ga. App. 14, 15 (471 SE2d 3) (1996) (whole court); Piggly Wiggly Southern v. Brown, 219 Ga. App. 614, 616 (468 SE2d 387) (1995) (whole court); Daniel v. John Q. Carter Enterprises, 218 Ga. App. 223, 225 (460 SE2d 838) (1995) (whole court); Burke v. Bi-Lo, 212 Ga. App. 115, 117 (441 SE2d 429) (1994); Jackson v. Wal-Mart Stores, 206 Ga. App. 165, 169 (424 SE2d 845) (1992); Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257, 259 (366 SE2d 785) (1988).

       Zack’s asserts by brief that “[t]he employees testified that these [hourly] inspections took place on June 4,1998.” Since the record is devoid of absolutely any testimony from “employees” about any inspections, let alone hourly inspections, taking place, we reject Zack’s assertion.

       (Citation and punctuation omitted.) J H. Harvey Co. v. Reddick, supra at 471 (1) (b):

       Id.