author: Eldridge, Judge.

text:
    A00A0152.
    A00A0153.
    A00A0154.
    A00A0155.
    A00A0352.
    YORK v. THE STATE. MCCALL v. THE STATE. MATHIS v. THE STATE. CRAWFORD v. THE STATE. HILL v. THE STATE.
    (528 SE2d 823)
   Eldridge, Judge.

We have consolidated these five interrelated criminal appeals. Viewed to support the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the facts are these:

On the evening of November 25, 1996, Derrick Andre Crawford arrived at his home, parked his Land Rover beside his Ford Explorer in the attached garage, exited the vehicle, and headed toward the kitchen door. The three Rottweiler dogs in his fenced back yard began barking as Damon Jason McCall, Antonio York, Bernard Mathis, and Antonio Hill drove up in a Nissan Pathfinder. Leaving the motor running, the four jumped out of the Pathfinder and ran toward Crawford. They were wearing dark ski masks, and all four had guns. They forced Crawford into his kitchen. Crawford’s wife, Shunda Green, was in the kitchen; a stove burner was on, and a “strange” smell was in the air. When Green saw the armed men, she and her two small children began screaming. In the resulting chaos, Green quickly called 911 and left the telephone line dangling open, as McCall herded Crawford, Green, and the children into the living room.

The 911 operator relayed to patrol officers all pertinent information regarding a robbery in progress, and police officers began to arrive on the scene. Meanwhile, inside the house, there was general chaos, which included a great deal of yelling, demands for money, and demands to know “where the stuff was at.” Crawford repeatedly refused to tell the men where the money and “the stuff” were, so McCall shot Crawford. Crawford then gave McCall the information he wanted, and McCall was apprehended shortly afterwards attempting to flee in Crawford’s Land Rover with a kilo brick (1,000 grams) of powder cocaine wrapped in brown paper with a horseshoe logo on it. The Smith & Wesson .380 caliber pistol that McCall used to shoot Crawford was lying beside the kilo on the front seat of the Land Rover. McCall had a significant quantity of blood on his shoes and pants; he also had Crawford’s wallet in his pants pocket, as well as nine “hits” of crack cocaine.

When York, Hill, and Mathis realized the police had arrived, panic set in. They demanded to know a way out of the house. They forced Crawford, Green, and the children into the basement and tried to exit the basement door. However, simultaneously, the police approached the basement door and forced it open. Green shouted “They shot him. They shot him,” as the police burst in. York, Hill, and Mathis tried to run back up the basement steps. York made it up the stairs and was apprehended in the living room; Hill was stopped mid-stairs; and Mathis was apprehended before he could reach the stairs. After Mathis was handcuffed, he told the arresting officer, ‘You boys are going to get medals for this. This is the biggest drug bust. There’s three keys in the house upstairs.”

The police obtained a search warrant for Crawford’s house. Three dark ski masks and three weapons were found discarded in various locations in the kitchen, living room, and basement. Ten thousand dollars in cash was found in a dresser drawer in an upstairs bedroom. A brown paper wrapper with a horseshoe logo was found in the kitchen trash can. Another 57.3 grams of cocaine were found in a clear plastic bag in the kitchen cabinet near the stove, along with some cooking pots and a digital scale.

In his statement to the police, McCall admitted shooting Crawford but claimed it was in self-defense. He claimed that Crawford invited him into the house to discuss a prior business deal, and they began to argue; that he shot Crawford because he thought Crawford was reaching for a weapon and he “felt in fear of [his] life”; that he shot Crawford with a gun he fortuitously discovered in the pillows of Crawford’s couch; that, “after the little shoot,” Crawford started giving him items, like his wallet and the hits of cocaine found in McCall’s pants pocket; and that he was “not in a clear frame of mind,” so he just took the items Crawford voluntarily gave to him. McCall stated that there was no armed robbery; that York, Hill, and Mathis had nothing to do with anything that occurred; and that the police should “ask my friends they didn’t have nothing to do with this.”

Crawford and Green, along with McCall, York, Hill, and Mathis, were indicted for two separate counts of trafficking in cocaine based on the plastic bag of cocaine found in the kitchen cabinet and the kilo brick of cocaine recovered from the Land Rover. In addition, McCall, York, Hill, and Mathis were each charged with one count of armed robbery, two counts of aggravated assault, and three counts of burglary. McCall also faced one count of possession of cocaine for the nine hits of crack cocaine recovered from his pants pocket.

A Cobb County jury found Crawford and Green guilty on both counts of trafficking in cocaine; they found McCall, York, Hill, and Mathis not guilty on both counts of trafficking in cocaine. The jury found McCall, York, Hill, and Mathis guilty as charged on all remaining counts of the indictment. The five men appeal from their convictions. Held:

1. We find the evidence sufficient for a rational trier of fact to have found appellants guilty of the offenses for which they were convicted. Jackson v. Virginia, supra.

(a) Despite claims of “mere presence,” Crawford’s trial testimony, as well as other State’s evidence, showed that York, Hill, and Mathis each had guns, wore ski masks, and aided McCall in the burglary, armed robbery, and aggravated assaults of Crawford and Green. OCGA § 16-2-20 (parties to a crime); Burks v. State, 268 Ga. 504, 505 (491 SE2d 368) (1997). Crawford’s testimony further showed that the men were not “invited” into the residence, contrary to their assertions on appeal.

(b) We also reject Crawford’s contention that no evidence linked him to the drugs found in the Land Rover and the kitchen. It was reasonable for the jury to determine that the kilo in the Land Rover was removed by McCall from Crawford’s home without permission; likewise the 57.3 grams of cocaine were found in Crawford’s kitchen cabinet. An inference can be made that the cocaine in Crawford’s home belonged to him. Carthern v. State, 238 Ga. App. 670, 672 (519 SE2d 490) (1999). The jury apparently made that inference, and that was their prerogative.

2. Appellants raise various Bruton issues. As per Bruton, a defendant’s Sixth Amendment right of confrontation is violated when: (a) co-defendants are tried jointly; (b) one co-defendant’s statement is used to implicate the other co-defendant in the crime; and (c) the co-defendant who made the implicating statement employs his Fifth Amendment right not to testify and thus does not take the stand to face cross-examination about the statement. McDonald v. State, 210 Ga. App. 689, 690 (436 SE2d 811) (1993).

Recognizing the above as law, we cannot help but question the tactical wisdom of the State in joining together for trial interrelated Cases A and B, when the result is to make the victim in Case A a co-defendant in Case B. If the victim/co-defendant does not testify because of Fifth Amendment concerns arising from Case B, the State may be left to prove Case A though the victim/co-defendant’s pretrial statements and identification. Under Hanifa v. State, 269 Ga. 797, 800 (2) (505 SE2d 731) (1998), a Bruton Confrontation Clause violation may be inevitable since cross-examination of the victim/co-defendant is impossible.

In the face of a potential' Bruton violation, the issue then becomes: (1) whether the implicating statement falls within a “firmly rooted” exception to the hearsay rule that will allow its admission, despite Confrontation Clause issues;2 (2) whether the statement was sufficiently redacted with the use of general terms which do not “obviously refer directly to someone”; or (3) whether any Bruton violation can be considered harmless. With these principles in mind we turn to the specifics of appellants’ Bruton allegations.

(a) McCall asserts a Bruton violation in the admission of co-defendant York’s statement identifying McCall as the shooter.

Co-defendant York gave a statement to the police that there was no armed robbery or burglary; that Crawford invited the men inside his house to discuss business between him and McCall; that no one, including McCall, was carrying a gun when they entered the house; that McCall and Crawford began arguing; that McCall shot Crawford; that he did not know why McCall shot Crawford; and that he, York, did not have any idea what was going on at the residence. York also told the interviewing officer that McCall wanted to talk to him in order to exonerate York, Hill, and Mathis.

Thereafter, McCall gave a statement to the police which exonerated York, Hill, and Mathis; confirmed exactly what York said; and added details that raised his self-defense claim with regard to his shooting of Crawford. The evidence also showed that McCall, York, Hill, and Mathis were together in the holding cell at the jail for a long period of time. It was there that McCall told York and the others that he would tell the police that he was responsible for the shooting and that “my friends they didn’t have nothing to do with this.” Neither McCall nor York testified at trial, but their statements were introduced.

The introduction of York’s statement naming McCall as the shooter was a Bruton violation because: York could not be cross-examined about the statement; the statement was not redacted with general terms in order to remove reference to any particular person; and the statement had no independent basis for admission. Hanifa v. State, supra; Gray v. Maryland, 523 U. S. 185 (118 SC 1151, 140 LE2d 294) (1998); Lilly v. Virginia, 527 U. S. 116 (119 SC 1887, 144 LE2d 117) (1999). However, we conclude that such violation was harmless beyond a reasonable doubt. McCall’s confession was not only “interlocking,” but a mirror image of York’s statement; McCall unequivocally claimed responsibility for the shooting, albeit in self-defense, and denied that any armed robbery had occurred or that he and his friends were in any way culpable of any crime. Moreover, McCall was apprehended on the scene; his shoes were covered in blood; and he had been in possession of the weapon used to shoot Crawford. Crawford made an in-court identification of McCall as the one who shot him. “[York’s] statement did not implicate [McCall] in the crimes more than this other evidence. Accordingly, we find that the admission of the statement was harmless error. [Cits.]” Rooks v. State, 238 Ga. App. 177, 181 (518 SE2d 179) (1999).

(b) At the time of the incident, the lead investigator asked Green what happened. There, on the scene, she told the officer that three masked men had forced their way into her home, demanded money and “the stuff,” and shot her husband. She did not know who the men were and did not identify any person as being a perpetrator of the crime.

We find no Bruton issues with regard to Green’s statement. “The court could have properly allowed the investigating officer to testify about what the victim told him when he arrived at the scene of the incident under the res gestae exception to the hearsay rule.” Jones v. State, 226 Ga. App. 608, 609 (487 SE2d 89) (1997). Res gestae is a “firmly rooted” exception to the hearsay rule and thus provides an independent basis for the admission of Green’s statement. Williams v. State, 202 Ga. App. 82, 84 (413 SE2d 256) (1991); Lilly v. Virginia, 119 SC at 1894. In addition, since Green did not know who committed the crimes and named no names, her statement raises no Bruton concerns as to any one of the appellants. No Bruton violation occurs unless the nontestifying co-defendant’s statement, standing alone, clearly implicates a defendant. Owen v. State, 266 Ga. 312, 314 (4) (467 SE2d 325) (1996).

(c) Likewise, Green’s excited utterance “They shot him. They shot him,” had an independent basis for admission. She made that statement as the police came through the basement door. As such, the statement was res gestae. Lilly v. Virginia, supra. In addition, since Green did not know who the intruders were and named no one, her statement, standing alone, implicates no one. Owen v. State, supra at 314 (4).

(d) Co-defendant Mathis made a spontaneous statement as the arresting officer picked him up from the basement floor that “[y]ou boys are going to get medals for this. This is the biggest drug bust. There’s three keys in the house upstairs.” Crawford contends that the statement implicated him in violation of Bruton. We disagree. The statement, spontaneously made on the scene at the time of arrest, was res gestae and thus admissible. Lilly v. Virginia, supra; Williams v. State, supra at 84. Further, Mathis’ statement made no mention about to whom the drugs belonged or how they got into the house. The statement did not name Crawford or imply that Crawford knew about the drugs. Standing alone, Mathis’ statement implicated no one. Again, “[t]here is no Bruton violation unless the non-testifying co-defendant’s statement, standing alone, clearly implicates the defendant.” (Citations and punctuation omitted.) Adams v. State, 231 Ga. App. 279, 288 (499 SE2d 105) (1998).

(e) We will not consider Mathis’ Bruton challenge to the admission of his own statement. The rights guaranteed by the Sixth Amendment are personal. See, e.g., Stevens v. State, 247 Ga. 698, 704 (7) (278 SE2d 398) (1981). Mathis may not invoke the Sixth Amendment confrontation rights of others to challenge the admissibility of his own statement. Id.

(f) Crawford testified at trial and faced cross-examination. Accordingly, the admission of his pretrial statement was not a Bruton violation. McDonald v. State, supra at 691.

3. For several reasons, appellants claim error in the trial court’s denial of their joint motion to sever. On review, we find no error.

The severance óf a co-defendant’s trial is within the sound discretion of the trial court. Its decision will not be disturbed unless there is an abuse of that discretion. OCGA § 17-8-4; Dixon v. State, 268 Ga. 81, 83 (485 SE2d 480) (1997).

A defendant desiring severance has the burden of demonstrating more than the possibility that a separate trial would provide him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process in the absence of severance.

(Citation omitted.) Berry v. State, 267 Ga. 605, 611 (9) (481 SE2d 203) (1997).

(a) Appellants contend that the failure to sever requires reversal because Crawford’s status as a co-defendant rendered them unable to impeach him with his prior drug conviction.

(i) It does not appear that this issue was raised as a basis for appellants’ pretrial severance motion, presumably because, at the time, it was unknown whether any co-defendant would testify. And, after Crawford took the stand, appellants do not direct our attention to any place in the record where they renewed their motion to sever in order to raise this issue and secure the trial court’s ruling thereon. Our review shows none. Accordingly, this issue is waived on appeal. See, e.g., Pattman v. State, 236 Ga. App. 786, 787 (2) (513 SE2d 761) (1999).

(ii) Crawford was not called by the State, and the State’s case was not dependent upon Crawford’s testimony. Compare Morris v. State, 204 Ga. App. 437, 438 (419 SE2d 733) (1992). Moreover, to prove that Crawford was a convicted drug dealer would have been of “questionable value” to appellants in defending against charges that they invaded Crawford’s home to steal drugs and money and where the evidence showed that they had removed a kilo of cocaine from Crawford’s home. See Thomas v. State, 199 Ga. App. 586, 591 (405 SE2d 512) (1991), rev’d on other grounds, 261 Ga. 854 (413 SE2d 196) (1992). Further, the State’s evidence clearly established that Crawford was a drug dealer, as reflected by the jury’s verdict. Thus, the prior drug conviction would have added little to further impugn Crawford’s already tattered general character. Under these circumstances, we conclude that appellants have failed to make “a showing of clear prejudice that is required to warrant a severance, with the result that the trial court did not manifestly abuse its discretion in refusing to grant appellant[s] a separate trial. [Cit.]” Ledbetter v. State, 202 Ga. App. 524, 525 (2) (414 SE2d 737) (1992).

(b) Hill contends he was prejudiced by evidence that Crawford and McCall had guns. But the evidence was that all of the perpetrators, including Hill, had guns. And a corresponding number of guns were found discarded in places throughout the house where the perpetrators, including Hill, had been. Accordingly, this contention presents no basis for finding the trial court abused its discretion in denying severance.

(c) McCall contends that his co-defendants presented “antagonistic defenses.” However, his co-defendants presented no defense, other than (1) reliance on their own pretrial assertions that there was no armed robbery and (2) reliance on McCall’s pretrial statement that the co-defendants had nothing to do with the shooting. Since McCall also claimed there was no armed robbery and voluntarily took responsibility for the shooting, albeit in self-defense, the defenses were not “antagonistic.”

(d) Crawford contends there was no “common scheme” between his trafficking charges and the acts of McCall, York, Hill, and Mathis so as to warrant joinder of the offenses for trial. However, pretermitting the factual validity of this argument, “common scheme” is not the only rationale for joinder and, thus, not the only rationale for denying severance. “The trial court does not abuse its discretion in denying a severance motion where evidence of one charge would be admissible in the trial of the other.” Hunter v. State, 237 Ga. App. 803, 804-805 (1) (517 SE2d 534) (1999). In that regard, evidence that Crawford kept large quantities of cocaine in his home went to the motive for the other co-defendants’ armed invasion of that home and the subsequent shooting of Crawford. Such evidence showing motive is relevant and admissible. Coker v. State, 207 Ga. App. 482, 483 (428 SE2d 578) (1993). Likewise, the police investigation of the acts of McCall, York, Hill, and Mathis explains the way in which Crawford was arrested for the trafficking offenses and is, thus, admissible: “Testimony of the arresting officer with reference to the legal investigation and circumstances surrounding the arrest is authorized as original evidence under OCGA § 24-3-2.” Ward v. State, 193 Ga. App. 137, 138-139 (2) (387 SE2d 150) (1989). Since Crawford’s offenses would have been admissible upon the trial of the other co-defendants’ offenses, and vice versa, the trial court did not abuse its discretion in denying severance. Dennis v. State, 263 Ga. 257, 260 (6) (430 SE2d 742) (1993).

(e) Crawford claims that severance should have been granted because the State was allowed to introduce Crawford’s bad character through the statement of co-defendant McCall. However, Crawford does not direct our attention to any place in the record where he raised this issue as a basis for severance. Accordingly, this issue is waived on appeal. Pattman v. State, supra at 786.

Further, even if preserved, the admission of McCall’s statement does not show harm requiring severance. The statement was redacted to remove any reference to Crawford and McCall’s “business” as involving narcotics. From McCall’s statement, standing alone, Crawford and McCall’s argument could have been over a money loan. Moreover, by its verdict, the jury clearly did not believe those portions of McCall’s statement claiming self-defense, including assertions that Crawford reached for a gun to shoot McCall; that Crawford had a bad temper; that Crawford might have killed him; and that McCall feared for his life. Accordingly, even if such assertions incidentally placed Crawford’s character at issue, the jury’s rejection of them renders their admission harmless.

(f) Our decision in Division 1, makes it unnecessary to consider appellants’ claims that Bruton violations warranted severance.

4. Appellants claim error in the trial court’s denial of their Batson motion with regard to prospective juror Sheryl Drakeford. We find no error.

In reviewing the trial court’s disposition of a Batson motion, we must bear in mind that the prosecutor’s explanation need not justify a challenge for cause, but must be neutral, related to the case to be tried, and reasonably specific. The trial court’s decision rests largely upon assessment of the prosecutor’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.

(Citation and punctuation omitted.) Smith v. State, 236 Ga. App. 122, 123 (2) (511 SE2d 223) (1999).

(a) A review of the record shows that on May 20, 1997, the second day of jury selection, Drakeford was late to court to such an extent the trial court was forced to admonish her: “Ms. Drakeford, you’re twenty minutes late. You’ve kept all of these people waiting since nine o’clock. Now, when I tell you to be here at nine, or any other time, please be here unless providentially prohibited, okay?” The next day, May 21, 1997, Drakeford was even later; the prosecutor stated that he struck her because:

She was twenty-two minutes late — eighteen minutes late yesterday and lectured by the court, as was only one other juror during the three days of jury selection, that’s Ms. Amie Izaguirre, who was also struck by the State for being late. It shows an inattention to the case, it shows a disrespect for the court, and for the parties in the case.

The trial court found the State’s reasons to be race-neutral and denied appellants’ Batson motion. To that end, the trial court specifically noted that the prosecutor very seldom exercised peremptory strikes against black jurors, and the court saw “no reason to impugn the State’s motive” in this case.

The State’s reasons were facially race-neutral. Equally important, the trial court found no pretext in the State’s reasons. Appellants have failed to show error in the court’s credibility determination. Accordingly, we cannot say the trial court’s denial of the Batson motion was clearly erroneous.

(b) Appellants also contend that the trial court did not complete the “three step process,” because the court failed to make a separate determination on the record that the defense had failed to prove discriminatory intent. This determination, however, was implicit in the trial court’s denial of the Batson motion and does not require a separate, specific finding on the record. See, e.g., Walker v. State, 271 Ga. 328, 330 (3) (519 SE2d 670) (1999); Palmer v. State, 271 Ga. 234, 237 (3) (517 SE2d 502) (1999); Dennis v. State, 238 Ga. App. 343, 345 (4) (518 SE2d 745) (1999).

5. Appellants claim error in four of the trial court’s final jury instructions. Upon review, however, we find no error.

(a) Crawford claims the trial court erred by using the phrase “moral and reasonable certainty” in its charge on reasonable doubt. However, “there was no reversible error because the charge viewed in its entirety repeatedly and accurately conveyed to the jury the concept of reasonable doubt.” (Citations and punctuation omitted.) Hart v. State, 238 Ga. App. 325, 327 (2) (d) (517 SE2d 790) (1999).

(b) The trial court’s charge that “ [i] f the State fails to prove a particular individual Defendant’s guilt beyond a reasonable doubt, it would be your duty to acquit that Defendant,” coupled with the court’s charge that “[t]he burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged,” meets the due process standard set by the United States Supreme Court. In re Winship, 397 U. S. 358 (90 SC 1068, 25 LE2d 368) (1970).

(c) The trial court charged the jury to “consider with great care and caution the evidence of any statement made by a Defendant.” Crawford contends that such charge could be interpreted to refer to his trial testimony and, thus, “destroy[ ] his only defense.” This argument is without merit. “It is a fundamental rule . . . that jury instructions must be . . . considered as a whole in determining whether the charge contained error.” (Citations and punctuation omitted.) Walls v. State, 233 Ga. App. 601, 604 (504 SE2d 471) (1998). Here, the challenged jury charge, taken in context with the charge as a whole, clearly refers to an out-of-court statement/confession given by a defendant to the police and impresses upon the jury its duty to make a credibility determination with regard to such statement/confession.

For the same reason, we find meritless Crawford’s claim that the charge shifted the burden of proof, thereby “forcing Crawford to prove his testimony was true.” No fair reading of the challenged jury instruction, taken in context with the charge as a whole, could mislead a jury into thinking the instruction referred to Crawford’s trial testimony. “There is no error where it is unlikely that the instructions considered as a whole would mislead a jury of ordinary intelligence.” (Citations and punctuation omitted.) Pullins v. State, 232 Ga. App. 267 (1) (a) (501 SE2d 612) (1998).

(d) We have reviewed the trial court’s charge on criminal intent. We reject appellants’ contention that such charge was burden shifting in violation of Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979). The court clearly instructed the jury that, while criminal intent “may be inferred” from proven facts, “[w]hether or not you draw such inference is a matter solely within your discretion.” As such, the charge stated only a permissive inference and was not burden shifting. Morris v. State, 196 Ga. App. 811 (2) (397 SE2d 159) (1990).

6. York claims a violation of Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981), in that the police took his statement after he had invoked his right to counsel.

“Under Edwards, authorities may not interrogate a suspect in custody who has requested an attorney, unless counsel is made available to the accused or the accused initiates further communication with the police.” (Emphasis in original.) Mosher v. State, 268 Ga. 555, 558 (491 SE2d 348) (1997).

In that regard, evidence adduced at the Jackson-Denno hearing showed that York invoked his right to counsel immediately upon his arrest on November 25, 1996. Several hours later in the morning hours of November 26, 1996, Cobb County Police Sergeant Chenowith was at the jail to retrieve the appellants’ clothing for evidentiary purposes. York approached Chenowith and said “I’d like to speak with you.” York was given Miranda warnings, which included his right to speak to an attorney. York waived his rights and gave a statement to the police. Later that day, York sent word through a jail deputy that he wished to speak to Cobb Police Detective Peluso. Peluso also gave York Miranda warnings. York waived his rights and gave a videotaped statement to the police. York did not testify at the Jackson-Denno hearing or produce evidence to refute the officers’ version of events.

The trial court found York’s statement voluntary and admissible under Miranda, which includes the right to have counsel present during custodial interrogation. We find no error in this ruling. The trial court sits as the factfinder in a Jackson-Denno hearing, and its resolution of factual issues will be upheld by the appellate court unless it is clearly erroneous. Higginbotham v. State, 207 Ga. App. 424 (1) (428 SE2d 592) (1993). Construing the evidence most strongly to support the trial court’s denial of York’s Jackson-Denno motion, we conclude that York initiated further conversation with the officers and, “during the course of such initiated conversation, exercised a free and voluntary waiver of his rights.” Underwood v. State, 218 Ga. App. 530, 533 (2) (462 SE2d 434) (1995).

7. Crawford filed a motion to suppress both the kilo of cocaine found in the Land Rover and the 57.3 grams of cocaine found in the kitchen cabinet. He claims that there was insufficient probable cause to issue a warrant to search his home and vehicle for drugs. We disagree.

The affidavit in support of the warrant, as well as testimony at trial, showed that officers had responded to the scene of a home invasion robbery based on a 911 call made by resident Green; that during the investigation of the incident, Green had informed the officers that the robbers were demanding “the stuff” just prior to removal of the object ultimately found in Crawford’s Land Rover; and that based on the observations of an experienced police officer, Officer Stein, the object in Crawford’s Land Rover appeared to be a wrapped kilo brick of cocaine.9 Moreover, the police were in possession of the information from Mathis that there were “three keys in the house upstairs.” In that regard, the attesting officer also gave oral testimony, telling the magistrate that it appeared to him “that the entire incident was obviously a drug ripoff, in my opinion, based on my experience.” The attesting officer related to the magistrate,

[t]he totality of the circumstances there were that we had a home invasion robbery, an obvious home invasion robbery, where men had come in and tried to rob these folks. They were demanding, according to Ms. Green, money — they wanted to know where’s the money, where the stuff was. We knew that there was already a suspected large quantity of cocaine involved with the scene. Because of all those things it was obvious to me that the robbers were after money and drug contraband.

In determining the sufficiency of an affidavit to support the issuance of a search warrant, the Supreme Court in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), adopted the totality of the circumstances test:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

(Citations and punctuation omitted.) State v. Law, 208 Ga. App. 744, 745 (432 SE2d 110) (1993). We conclude, based on the totality of the circumstances, that the information in the affidavit — as well as that presented to the magistrate orally — provided a sufficient basis for finding probable cause. “Observations by fellow officers of government engaged in a common investigation are a reliable basis for a warrant applied for by one of their number.” (Citations and punctuation omitted.) Lewis v. State, 234 Ga. App. 873, 876 (508 SE2d 218) (1998). Further, information provided by police officers, arising out of an official investigation, may be used to establish probable cause for a search warrant. Pollard v. State, 236 Ga. 587, 589 (224 SE2d 420) (1976); see also United States v. Ventresca, 380 U. S. 102, 111 (85 SC 741, 13 LE2d 684) (1965).

Here, there was sufficient information to provide probable cause for the search warrant to issue based on Stein’s belief, from his police experience, that the package in the Land Rover was a kilo brick of cocaine; the totality of the acts that comprised the home invasion, including the shooting of Crawford and the subsequent removal of the package from the residence; the statement from Green that the robbers were looking for “the stuff”; and the information that there were additional drugs in the house. Contrary to Crawford’s assertions, it is not fatal to the search warrant that there is nothing in the affidavit that states how Stein could tell it was cocaine. “A search warrant affidavit is not insufficient merely because it fails, to show how the informant knew that the substance he saw was a narcotic.” State v. Hill, 135 Ga. App. 214, 216 (217 SE2d 190) (1975); State v. Law, supra.

8. Crawford contends the trial court erred in sentencing him on both counts of trafficking, because his possession of both the kilo of cocaine found in the Land Rover and the 57.3 grams of cocaine found in the kitchen cabinet was part of one continuous act and that simply because the drugs were found in two separate locations does not alter the fact that there was only one drug, one intent, and one incident of trafficking in cocaine. The State, on the other hand, argues that the cocaine found in the Land Rover had a different chemical composition from that found in the kitchen, thus making it two, separate, indictable drug possessions.

This appears to be an issue of first impression. We find illuminating the State’s concession during sentencing that “had the State been a little-short,” it would have sought to combine the two packages, regardless of their different chemical compositions, in order to reach a trafficking weight. However, apparently being flush (as it were) with cocaine in the instant case, the State chose to indict the cocaine packages separately in order to seek two trafficking charges. The State claims that such is merely a “charging decision.” We cannot agree.

The fact that the State could combine the two drugs if it were “short” belies its argument that the packages of cocaine are, in fact, “different” drugs. Moreover, the State’s reliance on our decision in Lawrence v. State, 227 Ga. App. 70, 71 (2) (487 SE2d 608) (1997), is misplaced. There, the cocaine was the same, but the charged offenses were different, and the defendant sold some of the cocaine and retained the rest for his personal use. “If a person intends to distribute only a designated part of narcotics which are possessed, both the offense of possession and sale may be punished.” (Citation and punctuation omitted.) Id. at 72 (2).

Here, however, the drugs are the same, and the offenses are the same. Under the facts of this case, Crawford was trafficking in cocaine. He was not trafficking in cocaine twice. His possession and control of all of the cocaine in his home at the time of the incident were part of one continuous criminal act. This conclusion is consistent with our holding that,

Decided January 21, 2000 —

Gregory A. Hicks, James K. Luttrell, for appellant (case no. A00A0152).

Carlton C. Carter, for appellant (case no. A00A0153).

Lawrence W. Daniel, for appellant (case no. A00A0154).

Bernard Mathis, pro se.

Zell & Zell, Rodney S. Zell, for appellant (case no. A00A0155). Victor A. Cuvo, for appellant (case no. A00A0352).

Patrick H. Head, District Attorney, Andrew J. Saliba, Debra H. Bernes, Maria B. Golick, Assistant District Attorneys, for appellee.

for separate offenses charged in one indictment to carry separate punishments, they must rest on distinct criminal acts. If they were committed at the same time and place and parts of a continuous criminal act, and inspired by the same criminal intent, they are susceptible of only one punishment.

(Citation, punctuation and emphasis omitted.) Hubbard v. State, 168 Ga. App. 778, 779 (2) (310 SE2d 556) (1983). Accordingly, Crawford’s conviction for trafficking in cocaine on Count 9 merges into his conviction for trafficking in cocaine on Count 8. His sentence on Count 9 is vacated.

Judgments affirmed.

Sentence on Count 9 vacated in Casé No. A00A0155.

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

       Green’s appeal is not before us.

        Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968).

        Lilly v. Virginia, 527 U. S. 116 (119 SC 1887, 1894, 144 LE2d 117) (1999) (“We have allowed the admission of statements falling within a firmly rooted hearsay exception since the Court’s recognition . . . that the Framers of the Sixth Amendment obviously intended to respect certain unquestionable rules of evidence in drafting the Confrontation Clause.”) (citations and punctuation omitted).

        Gray v. Maryland, 523 U. S. 185 (118 SC 1151, 1157, 140 LE2d 294) (1998) (disapproving a redaction that substitutes “blank” or “delete” for a co-defendant’s name and approving general redaction terms: “Why could the witness not, instead, have said: ‘Question: Who was in the group that beat Stacey? Answer: Me and a few other guys’ ”). But cf. Montijo v. State, 238 Ga. App. 696, 701 (520 SE2d 24) (1999) (where a panel of this Court found the general redaction term “other guys” unacceptable).

        Cruz v. New York, 481 U. S. 186 (107 SC 1714, 95 LE2d 162) (1987) (the co-defendant’s confession may be considered on appeal in assessing whether any Confrontation Clause violation was harmless). See also Hanifa v. State, supra at 803 (‘Violation might be rendered harmless by the introduction of the defendant’s interlocking confession”).

        Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       It is unclear from the briefs whether appellants also challenge the State’s use of a peremptory strike against juror Izaguirre. However, to the extent that such issue is raised on appeal, we find it waived by appellants’ failure to establish a record as to whether Izaguirre belonged to a cognizable racial or ethnic group. Greene v. State, 266 Ga. 439, 443 (469 SE2d 129) (1996), rev’d on other grounds, Greene v. Georgia, 519 U. S. 145 (117 SC 578, 136 LE2d 507) (1996). Nor did appellants secure a ruling from the trial court as to the strike of Izaguirre. See Laney v. State, 271 Ga. 194, 195-196 (3) (515 SE2d 610) (1999). In fact, other than to mention Izaguirre’s name, no further argument was presented to the trial court with regard to the State’s strike of this prospective juror.

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       Stein testified at trial that, in his experience, kilos of cocaine come packaged in wrapped bricks like the one he saw in the Land Rover. See Giles v. State, 197 Ga. App. 895, 897 (2) (400 SE2d 368) (1990).

       The kilo brick was 77 percent pure cocaine and cut with hydrochloride; the 57.3 grams were 80 percent pure and cut with a different agent.

       Minimum weight for trafficking in cocaine is 28 grams. OCGA § 16-13-31 (a) (1).


source: Caselaw Access Project

author: Barnes, Judge. Blackburn, Presiding Judge,

license: Public Domain

text:
    A99A1658.
    THE STATE v. SMITH.
    (529 SE2d 423)
   Barnes, Judge.

The State appeals the trial court’s grant of Gregory Alan Smith’s motion to dismiss. See OCGA § 5-7-1 (3). The State contends the trial court erred by finding that Smith’s indictments were returned after the statute of limitation expired. Because the record establishes that the prosecution was commenced beyond the seven-year period prescribed in OCGA § 17-3-1 (c), however, we must affirm the trial court.

The indictments, all returned on December 2, 1998, allege that between January 1, 1989, and December 31, 1989, Smith committed incest, child molestation, and aggravated child molestation against his daughter and that at the time of the crimes she was under the age of 14. The indictments also allege that the crimes were first reported to a government agency within seven years before the return of the indictment.

Smith asserts correctly that OCGA § 17-3-2.1 does not apply in this case because crimes alleged in the indictments occurred before July 1, 1992. The State contends, however, that this court’s, decision in Johnston v. State, 213 Ga. App. 579, 580 (445 SE2d 566) (1994) (physical precedent), is applicable and that under the Johnston case the statute of limitation was tolled until the victim in this case reached her sixteenth birthday or until the violation was reported to the law enforcement authorities, regardless of the applicability of OCGA § 17-3-2.1.

Although the State’s position appears to have merit initially, the Johnston case does not actually accomplish what it appears to do. For Johnston to be controlling authority, a majority of the nine judges on this court at the time would have had to concur fully in that opinion. This was not done. Instead, eight of the judges who considered Johnston concurred in the judgment only, and thus the case constitutes physical precedent. Court of Appeals Rule 33 (a). Therefore, Johnston merely decided the issues in that case and is not binding precedent. Id. As a result, Johnston did not overrule Sears v. State, 182 Ga. App. 480 (356 SE2d 72) (1987), and did not establish a tolling period. Accordingly, the trial court did not err by granting Smith’s motion to dismiss based upon the expiration of the statute of limitation.

Judgment affirmed.

Eldridge, J., concurs. Blackburn, P. J, concurs specially.

Blackburn, Presiding Judge,

concurring specially.

I specially concur to demonstrate that Johnston v. State, 213 Ga. App. 579 (445 SE2d 566) (1994), has no persuasive authority in addition to the fact that it is not binding authority. On December 2, 1998, Gregory Alan Smith was indicted for the crimes of incest, child molestation, and aggravated child molestation. The indictment brought against Smith indicated both that Smith committed the crimes for which he was charged against his daughter between January 1, 1989, and December 31, 1989, and that Smith’s daughter was under the age of 14 at the time of commission. On January 15, 1999, Smith filed a motion to dismiss the case against him, arguing that the return of the indictment was barred by the statute of limitation. OCGA § 17-3-1 (c) requires the commencement of the prosecution of this case within seven years of December 31, 1989, the last possible date of any crime under the indictment. Any prosecution after December 31, 1996, was thus untimely. The indictments were returned December 2, 1998, and the trial court properly held that they were time-barred. OCGA § 17-3-1 (c) provides:

Prosecution for felonies other than [murder and crimes punishable by death or life imprisonment] committed against victims who are at the time of the commission of the offense under the age of 14 years must be commenced within seven years after the commission of the crime.

OCGA § 17-3-2.1 provides:

(a) If the victim of a violation of:
(1) Code Section 16-5-70, relating to cruelty to children;
(2) Code Section 16-6-1, relating to rape;
(3) Code Section 16-6-2, relating to sodomy and aggravated sodomy;
(4) Code Section 16-6-3, relating to statutory rape;
(5) Code Section 16-6-4, relating to child molestation and aggravated child molestation;
(6) Code Section 16-6-5, relating to enticing a child for indecent purposes; or
(7) Code Section 16-6-22, relating to incest,
is under 16 years of age on the date of the violation, the applicable period within which a prosecution must be commenced under Code Section 17-3-1 or other applicable statute shall not begin to run until the victim has reached the age of 16 or the violation is reported to a law enforcement agency, prosecuting attorney, or other governmental agency, whichever occurs earlier. Such law enforcement agency or other governmental agency shall promptly report such allegation to the appropriate prosecuting attorney.
(b) This Code section shall apply to any offense designated in paragraphs (1) through (7) of subsection (a) of this Code section occurring on or after July 1, 1992.
(Code 1981, § 17-3-2.1, enacted by Ga. L. 1992, p. 2973, § 1.)

(Emphasis supplied.)

The latest date on which a crime was alleged to have been committed in this case was December 31, 1989. Thus, a prosecution which began on December 2, 1998, was well beyond the seven-year limitation period provided by OCGA § 17-3-1 (c). OCGA § 17-3-2.1, which provides for the tolling of the statute of limitation in certain cases, but only for subject acts committed after July 1, 1992, has no application in this case.

The State relies on Johnston v. State, supra, as authority for the tolling of the statute of limitation in this case until such time as the victim reached 16 years of age or the violation was reported to law enforcement authorities. Johnston is a nine-judge whole court opinion, in which no judge joined the author’s analysis. Eight judges concurred in the judgment only.

In Johnston, the defendant was indicted on May 5, 1993, for aggravated child molestation which allegedly occurred in May 1985. Because the indictment was returned more than seven years after the commission of the crime, this Court reversed the defendant’s conviction because it was barred by the statute of limitation in OCGA § 17-3-1 (c). In a footnote, Johnston acknowledges that OCGA § 17-3-2.1 had no application to its outcome.

In the present case, the trial court ruled the same as this Court did in Johnston. Johnston recognized the clear meaning of the involved statutes and case law and properly applied them in reversing the conviction in Johnston. The Johnston opinion purports to “overrule our decision in Sears v. State[, 182 Ga. App. 480 (356 SE2d 72) (1987),] to the extent the holding in that case is applicable to those crimes designated in OCGA § 17-3-2.1.” Id. at 580. Sears, in applying OCGA § 17-3-1, had held that the infancy of the victim does not toll the statute of limitation. By overruling Sears, the author in Johnston attempted to provide that the statute of limitation would be tolled under OCGA § 17-3-1 in cases decided after June 17, 1994, the date of the decision.

Johnston, supra at 580, states:

OCGA § 17-3-2.1 evinces the legislature’s intent that statutes of limitation for certain crimes against minors should be tolled by the infancy of the victim until such time as the victim is 16 years of age. In light of the legislature’s decision that the limitation period for certain crimes should vary depending on the age of the victim, we now overrule our decision in Sears v. State to the extent the holding in that case is applicable to those crimes designated in OCGA § 17-3-2.1. As of the date of this opinion, infancy shall toll the statute of limitation for those crimes until the victim is 16 years of age or until the violation is reported to law enforcement authorities, whichever is earlier. Because the limitation period in this case has already expired and cannot now be revived, our decision to overrule Sears v. State does not affect the judgment in this case.

Decided February 9, 2000.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellant.

James W. Bradley, for appellee.

As Johnston is a one-judge analysis which has no precedential value, it is physical precedent only and does not overrule Sears, notwithstanding the language contained therein. See Court of Appeals Rule 33; OCGA § 15-3-1. In addressing a three-judge panel case, this Court held: “Since one judge concurred only in the judgment in Hawkins [u Greenberg, 159 Ga. App. 302 (283 SE2d 301) (1981)], the case is not a binding precedent before this court.” Haynes v. Hoffman, 164 Ga. App. 236, 237 (296 SE2d 216) (1982). Sears remains valid case law, where applicable, to subject acts committed prior to July 1, 1992. It is unnecessary to overrule Johnston as it did not overrule Sears, is not binding precedent, and has only that persuasive authority which others may choose to give it. This Court has no authority to overrule or rewrite the explicit provisions of OCGA § 17-3-1 requiring that prosecutions for certain felonies, which predate July 1, 1992, against minors under the age of fourteen be brought within seven years. To hold that the statute of limitation is tolled during minority would destroy the statutory scheme of OCGA § 17-3-1, which clearly contemplates the minority of the victim in the seven-year limitation period that applies to certain crimes where the victims are fourteen years or under. Had the legislature intended a different result, it could have amended OCGA § 17-3-1 to provide for tolling or omitted the date limitation from OCGA § 17-3-2.1 (b). The statutes involved here are unambiguous and require no interpretation. Although we may construe ambiguous statutes, we cannot manufacture ambiguity where a statute is clear and explicit on its face. Cooper v. Edwards, 235 Ga. App. 48, 50 (508 SE2d 708) (1998); Tharpe v. State, 207 Ga. App. 900 (1) (429 SE2d 342) (1993).

The analysis mandated by this case is plain. Smith was not indicted for crimes committed before July 1, 1992, until more than seven years had elapsed. As such, the case against him is barred by the statute of limitation in OCGA § 17-3-1 and Sears, supra, and it was properly dismissed by the trial court.


author: Phipps, Judge.

text:
    A99A2032.
    HOUSTON v. THE STATE.
    (529 SE2d 431)
   Phipps, Judge.

A jury found Freddie Houston guilty of two counts of armed robbery and two counts of robbery. After the trial court denied Houston’s amended motion for new trial, he appeals, challenging the admission of similar transaction evidence, the denial of his motion to sever, and the sufficiency of the evidence. Having determined that no reversible error occurred, we affirm.

On appeal, we view the evidence in the light most favorable to the verdict, and an appellant no longer enjoys a presumption of innocence. This court determines whether the evidence is sufficient under the standard of Jackson v. Virginia and does not weigh the evidence or determine witness credibility. Conflicts in the evidence are for the jury to resolve.

Viewed in a light most favorable to the verdict, the evidence shows that on April 5, 1998, at approximately 4:00 p.m., 79-year-old Wilma Defnall was unloading groceries from her car at her home located in Thomas County. Houston approached Defiiall’s husband and inquired about yard work. But moments later, Houston turned to Defnall, threatened her with a knife, and demanded money. After taking approximately $30 from Defnall, Houston fled in “sort of a small car” that “made a loud noise.” Approximately three weeks later, Defnall identified Houston, without hesitation, from a six-photograph lineup. At trial, Defnall again identified Houston as the man who had robbed her. The jury found Houston guilty of armed robbery.

Viewed in the light most favorable to the verdict, the evidence shows that on April 6,1998, at approximately 12:30 p.m., 82-year-old Oneida Mattox was unloading groceries from her car at her home located in Thomas County. Houston approached her and inquired about yard work. But moments later, Houston demanded money and threatened to use a knife, which Mattox never saw. After taking $100 from Mattox, Houston fled in a “small make” car that made “a loud noise like it needed a muffler.” Three weeks later, Mattox identified Houston, without hesitation, from a six-photograph lineup. At trial, Mattox again identified Houston as the person who had robbed her. The jury found Houston guilty of armed robbery.

Viewed in a light most favorable to the verdict, the evidence shows that on April 22, 1998, at approximately 3:00 p.m., 20-year-old Amanda Sharpe was working in a health food store located in Thomas County. Houston approached her and inquired about a weight-gain product. After conversing with Sharpe for approximately 15 minutes, Houston demanded that Sharpe give him money from the cash drawer. After taking approximately $300 from Sharpe, Houston fled. Sharpe described her assailant to police officers as a slim male. She identified Houston, without hesitation, from a six-photograph lineup. At trial, Sharpe again identified Houston as the person who had robbed her. The jury found Houston guilty of robbery.

Viewed in a light most favorable to the verdict, the evidence shows that on April 26, 1998, Johnny Gibbs, who was 64 years old at the time of trial, was delivering a pizza in a neighborhood located in Thomas County. Houston approached Gibbs and presented himself as the customer who had ordered the pizza. After casually conversing with Gibbs, Houston asked him whether he had change for a $50 bill. But as Gibbs searched for change, Houston snatched approximately $32 from him, then drove away in “a small beige or gray colored car . . . with a loud muffler.” Gibbs described his assailant to police officers as a slender male. That same evening, Gibbs identified Houston, without hesitation, from a single display of Houston’s photograph and from a six-photograph lineup. At trial, he again identified Houston as the person who had robbed him. The jury found Houston guilty of robbery.

The State also presented evidence, as a similar transaction, of another robbery of a pizza delivery man. On April 11, 1998, at approximately 7:00 p.m., that victim was delivering pizza to an apartment community in Tallahassee, Florida. Houston approached him and asked for instructions for the gate’s call box. But after the delivery man showed Houston how to use the call box, Houston demanded money and threatened to use a gun, which the delivery man never saw. Houston took approximately $20 from the delivery man before fleeing in a “lighter gray, blue, older car — Honda, Toyota or something.” The delivery man reported the vehicle’s Georgia tag number to police officers. Later that evening, police officers spotted the vehicle and apprehended Houston. At the trial for the current charges, the delivery man testified that there was no doubt in his mind that it was Houston who had robbed him, and Houston also confessed that he had committed the Florida robbery.

Houston’s sister testified at trial and described Houston’s appearance during April 1998 as slender. She also stated that Houston drove a Honda Accord then that was “sort of like a lavender, grayish, it’s sort of like a champagne color . . . depending on how you look at it in the light.” She testified that Houston’s car made a noise while being driven.

1. Houston contends that the trial court erred by admitting evidence of the Florida robbery as a similar transaction, arguing that it was not sufficiently similar to the current charges. But because Houston failed to object to the introduction of such evidence at trial, he has waived this issue and cannot raise it on appeal.

2. Houston contends that the trial court improperly denied his motion for severance of the offenses charged. An abuse of discretion standard applies when reviewing a denial of a motion to sever the trial of separate offenses. Transactions need not be identical in every respect; rather, offenses may be joined for trial where “the similarity of the offenses reaches the level of a pattern which shows a common scheme, plan or a modus operandi so strikingly similar that the totality of the facts unerringly demonstrates and designates the defendant as the common perpetrator. . . ,” Moreover, there is no abuse of discretion in denying severance where the evidence of one crime would be admissible in the trial of the other crime.

Here, all of the robberies occurred during April 1998 in Thomas County. Three of the robberies occurred between 12:45 p.m. and 4:00 p.m. The robber invariably arrived at each scene alone. With the exception of the first victim, who was with her physically and mentally disabled husband, each victim was alone. The robber began each crime by engaging the victim in conversation. But moments later, he would demand money. After taking the money, he would flee the scene without following through with any threatened physical violence against the victim. The four robberies that formed the basis of the charges against Houston show a common plan, a common scheme, and a common purpose. They were also sufficiently similar that evidence of one would have been admissible in the trials of the other robberies. In light of the similarities, the trial court did not abuse its discretion in denying Houston’s motion for severance.

3. Houston contends that the evidence was insufficient to support his convictions for armed robbery and robbery.

(a) Houston maintains that Gibbs’s identification of him was based on an improper identification procedure. He complains that the responding deputy showed Gibbs a single photograph of him before Gibbs examined the six-photograph lineup. Before trial, Houston moved to suppress Gibbs’s pre-trial identification of him in the six-photograph lineup and any in-court identification, arguing that the single-photograph display was impermissibly suggestive and that it tainted all subsequent identifications. After a hearing, the trial court ruled that evidence of the single-photograph identification would not be permitted but that subsequent identifications would be allowed. Houston contends that the trial court erred in allowing the subsequent identifications.

Even if we assume that displaying Houston’s single photograph was impermissibly suggestive, convictions based on eyewitness identification at trial following a questionable pre-trial identification will be set aside only if the pre-trial identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the perpetrator at the time of the crime, the witness’s degree of attention, the accuracy of the witness’s prior description of the perpetrator, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.* Applying those factors, we find that the likelihood of misidentification was not very substantial.

The evidence demonstrates that the robbery of Gibbs lasted at least ten minutes, that Gibbs was attentive during the robbery, that Houston engaged in casual conversation with Gibbs before the robbery, and that Gibbs had ample opportunity to view Houston. Gibbs gave police a general description of Houston moments after the robbery. When the deputy showed him the single photograph that same evening, Gibbs immediately identified Houston as his assailant. He again identified Houston later that night in a six-photograph lineup and positively identified him at trial. Gibbs testified in the pre-trial hearing that he had identified Houston based on his view of Houston at the crime scene, and not based on the single photograph. The evidence established a basis for the pre-trial and the in-court identifications, independently of the single-photograph display. We find no reversible error.

(b) Houston also points out inconsistencies in the witnesses’ testimony, but any inconsistencies go to the weight of the evidence and the credibility of the witnesses, which are matters solely within the purview of the jury. Where there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.

In this case, the State offered both direct and circumstantial evidence to prove Houston’s guilt. The four victims positively identified Houston as the robber, and similar transaction evidence showed that Houston had committed another robbery in a similar manner. The jury apparently resolved any conflicts adversely to Houston. We conclude that the evidence was sufficient to authorize the jury to find Houston guilty beyond a reasonable doubt of two counts of armed robbery and two counts of robbery.

Decided February 9, 2000.

Catherine M. Williams, for appellant.

J. David Miller, District Attorney, James E. Hardy, Mark E. Mitchell, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson, C. J., and McMurray, P. J., concur.

        Patterson v. State, 225 Ga. App. 515 (484 SE2d 317) (1997).

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

        Patterson, supra, 225 Ga. App. at 515.

       Id.

        Smith v. State, 268 Ga. 42, 43 (3) (485 SE2d 189) (1997).

        Agony v. State, 226 Ga. App. 330 (1) (486 SE2d 625) (1997).

        Anderson v. State, 238 Ga. App. 866, 875-876 (8) (519 SE2d 463) (1999).

       (Citations and punctuation omitted.) Sabo v. State, 226 Ga. App. 106 (1) (485 SE2d 591) (1997).

        Weaver v. State, 206 Ga. App. 560, 561 (1) (426 SE2d 41) (1992).

        Zachery v. State, 238 Ga. App. 191, 193 (3) (517 SE2d 71) (1999).

        Clark v. State, 226 Ga. App. 176, 178-179 (3) (486 SE2d 393) (1997).

        Samuels v. State, 223 Ga. App. 275, 276 (1) (477 SE2d 414) (1996).

        Patterson, supra, 225 Ga. App. at 515.

       See Jackson, supra, 443 U. S. 307.


text:
    A00A0112.
    FORTSON v. THE STATE.
    (529 SE2d 429)
   Phipps, Judge.

An indictment was returned charging Alcindor Fortson and Gregory Wade with the armed robbery of Joseph Fulcher and burglary of his residence. The cases were severed for trial. Fortson appeals his conviction of burglary and sentence to 20 years imprisonment. He challenges the sufficiency of the evidence to support the verdict, the admission of evidence that he committed a crime not charged in the indictment, and the court’s consideration of a presentence investigation report. Finding the evidence sufficient and an absence of reversible error, we affirm.

At the time of trial, Fulcher was 78 years old. He sells cars from his residence. He testified that on July 17, 1998, two men appeared at his door. In describing the men, Fulcher could say only that one was bigger than the other. Fulcher testified that when he answered the door, the smaller man announced that he had been at Fulcher’s house a few weeks earlier looking at a car but, on this occasion, had come to rob him. According to Fulcher, the smaller man then pushed him backwards. Once inside the house, the larger man pistol-whipped Fulcher, “busted [his] head open” and caused abrasions to numerous areas of his body. In short order, the men took Fulcher’s billfold, but expressed dissatisfaction with the cash and checks in it. Fulcher told them that he had a small amount of cash in a jar in the bathroom linen closet. The smaller man went into the bathroom and removed the contents of the jar, which included three certificates of deposit and cash. Afterward, the men fled. Later that day, a forged check drawn on Fulcher’s account and made payable to Gregory Wade was cashed. Through expert testimony, the handwriting on the check was shown to be Fortson’s. His fingerprints were also lifted from Fulcher’s bathroom.

Fortson does not deny his presence along with Wade at the crime scene. And it is undisputed that Fortson is much smaller than Wade. Fortson testified that on the day in question he was going to Fulcher’s residence simply to make a down payment on the car he had seen earlier and that Wade had agreed to give him a ride there. According to Fortson, he was surprised when Wade brandished a gun and began assaulting Fulcher with it. Although Fortson acknowledged that he removed the jar from the linen closet of the bathroom and then forged the check cashed later that day, he claimed that he did these things only because Wade threatened him with the gun. Over objection, the State was allowed to impeach Fortson by showing that about six days after the robbery, without coercion, he forged an endorsement on another check taken from Fulcher.

Fortson also testified that Derrick Turner rode with him and Wade to Fulcher’s house. Turner appeared as a defense witness. Testimony given by him concerning events before and after the robbery supported Fulcher’s claim that he was not a willing participant.

1. It is the function of the jury to determine the credibility of witnesses and to weigh and resolve any conflicts in the testimony. When viewed in a light most favorable to the jury’s verdict, the evidence was sufficient to enable any rational trier of fact to have found Fort-son guilty of burglary beyond a reasonable doubt.

2. Fortson contends that the court erred in admitting evidence of the forgery which took place some six days after the burglary, as the indictment did not charge the indictees with theft or forgery of checks, and as the State did not comply with Uniform Superior Court Rules (USCR) 31.1 and 31.3 for the admission of similar transaction evidence.

We find no error. The procedural requirements of USCR 31.1 and 31.3 do not apply either to impeachment evidence or to evidence of similar transactions or occurrences which are immediately related in time and place to the charge being tried so as to be part of a single, continuous transaction. Evidence that Fortson had forged the check at issue without coercion was admissible to impeach his testimony that he had committed the earlier forgery only because he was coerced into doing so. A witness may be impeached by proving that statements made by him in his testimony are not the truth. Moreover, Fortson’s forgery of a check taken in the robbery several days after its occurrence was sufficiently connected in time and event to the robbery so that both offenses were part of a single transaction.

Decided February 9, 2000.

John W. Donnelly, for appellant. .

3. Finally, Fortson contends that the trial court erred in denying his motion to exclude the presentence investigation report because the report included criminal charges that did not result in convictions, and the officer who prepared the report recommended that the sentence proposed by the district attorney be served without possibility of parole.

After the trial concluded, sentencing was delayed at the behest of defense counsel so that the presentence report could be prepared. Unhappy with the contents of the report, the defense later moved to exclude it. The court denied the motion, after noting that it had already read the report.

It is true that while a trial court is authorized to consider presentence investigation reports for the purpose of deciding whether to suspend or probate all or part of the defendant’s sentence, it cannot use the reports to determine the length of sentence. But the record here does not support Fortson’s assertion that the court used the report for this improper purpose. The recommendation that the court impose the maximum 20-year sentence originated with the State. The transcript of the presentence hearing shows that the prosecuting attorney had not even read the report and based his sentencing recommendation on the evidence presented at trial. Although the report added a suggestion that the 20-year sentence be served without possibility of parole, Fortson’s sentence was not subject to such a condition and the court properly disregarded the recommendation. Because the transcript does not affirmatively show that the court used the presentence report for the unlawful purpose of increasing the sentence, no cause for reversal is shown.

Judgment affirmed.

Johnson, C. J., and McMurray, P. J., concur.

Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellee.

        Harris v. State, 190 Ga. App. 516, 517 (1) (379 SE2d 600) (1989).

       Id.

       USCR 31.3 (E).

        Middle Ga. &c. R. Co. v. Barnett, 104 Ga. 582, 584 (1) (30 SE 771) (1898).

       See Baird v. State, 207 Ga. App. 44, 45 (2) (427 SE2d 37) (1993); Branam v. State, 204 Ga. App. 205, 208 (5) (419 SE2d 86) (1992).

        Williams v. State, 165 Ga. App. 553, 554 (3) (301 SE2d 908) (1983).

       Compare Sinkfield v. State, 262 Ga. 239 (2) (416 SE2d 288) (1992).

        Green v. State, 193 Ga. App. 464 (388 SE2d 57) (1989).


author: McMurray, Presiding Judge.

text:
    A00A0355.
    HENDON v. SUPERIOR ROOFING COMPANY OF GEORGIA, INC.
    (528 SE2d 548)
   McMurray, Presiding Judge.

Appellant-defendant G. H. Hendon, Jr. entered into a contract with appellee-plaintiff Superior Roofing Company of Georgia, Inc. (“Superior”) for the installation of a new roof at his residence. A dispute over the work done arose between the parties. Thereafter, Superior filed its complaint seeking payment for the installation of the roof, attorney fees, and the expenses of litigation under OCGA § 13-6-11 and a lien on Hendon’s home. After deposing Hendon, Superior added a claim for fraud to its complaint. Hendon filed his answer and counterclaim seeking damages for negligent construction, personal injury, and attorney fees. Following the close of Superior’s evidence, the trial court denied Hendon’s motion for directed verdict as to Superior’s fraud claim, finding “overwhelming” and “crystal clear” evidence showing that Hendon’s purpose had consistently been to avoid paying for the repairs to his roof. At the close of the evidence, the trial court granted Superior’s motion for directed verdict as to Hendon’s claim for attorney fees under OCGA § 13-6-11. The jury returned its verdict, awarding Superior $7,725 plus $800 prejudgment interest on its contract claim, $1,013 in quantum meruit damages, $12,000 as attorney fees and expenses of litigation and finding for Hendon as to Superior’s fraud count. Additionally, the jury awarded Hendon $2,500 upon his counterclaim for negligent construction and found for Superior as to Hendon’s counterclaim for personal injury. Hendon appeals the trial court’s orders granting final judgment on the verdict and denying his motions for new trial upon the general grounds and judgment notwithstanding the verdict (“j.n.o.v.”) as to the jury’s award of attorney fees to Superior. Held:

1. Hendon contends that the trial court erred in denying his motion for j.n.o.v. as to the award of attorney fees to Superior under OCGA § 13-6-11. We disap'ee.

Superior specified in its complaint that its claim for attorney fees and expenses of litigation was necessitated in that “[Hendon] has been stubbornly litigious, has acted in bad faith, or has caused [Superior] unnecessary trouble and expense in obtaining an attorney and pursuing a lawsuit in this matter.” At trial, Superior presented evidence of bad faith by showing, among other things, that Hendon accused Superior of defrauding him by putting 15-pound felt on his roof in lieu of 30-pound felt though the roof replacement contract specified that 15-pound felt be used and that Hendon, despite making numerous promises to pay, refused to pay for services rendered when work was complete based on a deficiency list prepared and initialed in his handwriting though purporting to be the work product of a paid roof inspector. Thus, there was evidence on which a jury could have found bad faith arising out of the contract for the new roof on which the cause of action was based. See Dept. of Transp. v. Dalton Paving &c., 227 Ga. App. 207, 218 (5) (489 SE2d 329) (threatening to withhold payment absent the submission of revised plans as evidence of bad faith). Moreover, attorney fees can be awarded on a claim for bad faith in the performance of a contract despite the failure of plaintiff’s fraud count arising out of the transaction. Johnson v. Waddell, 193 Ga. App. 692, 693 (2) (388 SE2d 723). “An award of attorney fees supported by any evidence must be affirmed.” Baker v. Miller, 265 Ga. 486 (2) (458 SE2d 621). See Spring Lake Property Owners Assn, v. Peacock, 260 Ga. 80, 81 (390 SE2d 31); compare Gen. Refractories Co. v. Rogers, 240 Ga. 228, 235 (2) (239 SE2d 795). Accordingly, the trial court did not err in denying Hendon’s motion for j.n.o.v. Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 268 (1) (416 SE2d 274) (“The court must construe the evidence most favorably towards the party opposing the motion. The standard for appellate review of a directed verdict is the ‘any evidence’ test. Southern R. Co. v. Lawson, 256 Ga. 798, 800 (353 SE2d 491) (1987).”).

2. The trial court did not err in allowing Superior’s president to testify on direct examination that Superior had filed no lien claims or lawsuits. When counsel asked Superior’s president if Superior had previously filed any lien claims, Hendon objected on the basis of lack of relevance alone. “[I]t is well settled that a general objection of this nature is insufficient to present any question ... on appeal. See, e.g., Sikes v. Folsom Constr. Co., 151 Ga. App. 630 (2) (260 SE2d 755) (1979).” Telligman v. Monumental Properties, 172 Ga. App. 783, 784 (3) (323 SE2d 888). Moreover, assuming arguendo that this testimony would otherwise have been objectionable, Hendon’s failure to interpose a further objection when counsel for Superior asked the witness if Superior had filed any previous lawsuits waived any error as to the first objection. Steverson v. Hosp. Auth. of Ware County, 129 Ga. App. 510, 514 (2) (a) (199 SE2d 881); accord State v. Larocque, 268 Ga. 352, 353 (489 SE2d 806). Additionally, because Hendon’s sole objection was not interposed as a continuing objection, it did not preserve for review the admissibility of Superior’s president’s testimony indicating that Superior had not filed earlier lawsuits. Id.

Decided January 20, 2000 —

Reconsideration denied February 10, 2000.

McCurdy & Stone, W. Phillip McCurdy III, David S. Walker, Jr., for appellant.

Beloin & Associates, Frederic S. Beloin, Charles W. Brown, Crim & Bassler, Thomas S. Bechtel, for appellee.

3. Finally, Hendon contends that the trial court erred in denying his motion for directed verdict on Superior’s claim that Hendon fraudulently induced its performance under the contract upon false promises to pay for roofing services provided. Pretermitting the question of whether the trial court erred in denying Hendon a directed verdict as to Superior’s fraud claim in the case sub judice is Hendon’s inability to demonstrate any harm inuring to his detriment in light of the jury’s failure to find fraud. See Byrne v. Reardon, 196 Ga. App. 735, 736 (2) (397 SE2d 22); Williams v. Runion, 173 Ga. App. 54, 56 (1) (325 SE2d 441) (error in denying directed verdict on fraud claim harmless where jury does not find fraud). Accordingly, we deem this enumeration of error to be without merit.

Judgment affirmed.

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

       Superior installed 30-pound felt in order to resolve the dispute.


author: Barnes, Judge.

text:
    A99A1968.
    A99A1969.
    PHILLIPS et al. v. WALLS et al. McKEEHAN et al. v. WALLS et al.
    (529 SE2d 626)
   Barnes, Judge.

These actions arose from a car wreck in which two children died. The wreck occurred when a truck driver ran the stop sign at an intersection of county and state roads, crashing into a van in which the two children were riding. The parents of the deceased children sued and then settled with the truck driver, truck owner, van driver, van owner, and the Georgia Department of Transportation. The parents also sued the four Barrow County employees who are parties to this appeal and the truck driver’s employers. The trial court granted summary judgment to the truck driver’s employers, leaving only the four Barrow County employees as defendants. The truck driver’s employers are not parties to this appeal. The appellants in these companion cases appeal the grant of summary judgment to the defendant county employees. We affirm on the grounds that two of the employees are entitled to official immunity and two of the employees are entitled to summary judgment based on the evidence presented to the trial court.

The complaint alleged that the four county employees negligently failed to inspect the county road on which the truck driver was traveling. A proper inspection, the plaintiffs contend, would have revealed that vegetation obscured “any traffic control devices on the road.” The only traffic control device addressed in the summary judgment motion was a “stop ahead” sign. The complaint further alleges that the defendants failed to monitor the accident history of the intersection, contrary to established conventions. The complaint identifies the four defendants by name only; it does not indicate whether they are being sued in their individual or official capacities.

The trial court granted summary judgment to the employees, finding first that the DOT controlled and maintained the intersection and stop signs where the wreck took place. Therefore, the court held, the evidence failed “as a matter of law to show that these defendants breached any legal duties owed to the plaintiffs in regard to the repair or maintenance of the intersection. . . .”

Second, regarding the “stop ahead” sign on the county road on which the truck was traveling, the trial court found that the evidence showed the defendants had inspected and maintained the sign in a reasonable manner; that no evidence showed the defendants had notice of any defective conditions; and that no evidence showed that the truck driver could not have seen the sign due to any defective conditions.

Finally, the trial court held that,

[e]ven assuming there was some evidence the condition of the stop ahead sign had some connection with [the truck driver’s] failure to obey the stop sign at the intersection ahead, these defendants are protected from liability by sovereign immunity and official immunity.

On appeal, the plaintiffs argue that the trial court erred in finding that the defendants are entitled to immunity, in finding that no significant factual issues remain, and in striking an affidavit tendered to support their opposition to the defendants’ motion for summary judgment.

In reviewing the grant or denial of summary judgment, this court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996). As the movant for summary judgment, the county employees had the burden to show there was no genuine issue of material fact for trial and that the undisputed facts, viewed in the light most favorable to the plaintiffs, warranted judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. We first consider whether the trial court correctly held that the four employees, who were sued individually, are entitled to official immunity from claims brought against them in their personal capacities. The 1991 amendment to the Georgia Constitution provides that such officials

may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.

Art. I, Sec. II, Par. IX (d), Ga. Const. (1983). In other words, public officials are immune from damages that result from their performance of discretionary functions, unless those functions were undertaken with malice or intent to cause injury. Schmidt v. Adams, 211 Ga. App. 156 (438 SE2d 659) (1993). The plaintiffs here do not allege that any of these four county employees acted with malice or intent to cause injury, so if the damages complained of arise from discretionary actions, the employees have official immunity. If the damages arise from the performance or nonperformance of ministerial duties, the employees do not have official immunity.

“The decision of whether acts of a public official are ministerial or discretionary is determined by the facts of the particular case.” Nelson v. Spalding County, 249 Ga. 334, 336 (2) (a) (290 SE2d 915) (1982).

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

Stone v. Taylor, 233 Ga. App. 886, 888 (2) (506 SE2d 161) (1998).

Appellants contend that the defendants negligently failed to inspect the county road “pursuant to established policy,” which would have revealed that vegetation obscured the “stop ahead” sign, and that the defendants failed to monitor the accident history of the intersection “in contravention of established policy.” While the act of establishing a policy in the first place is discretionary, the acts of following established policies of inspecting and monitoring are ministerial tasks. Woodard v. Laurens County, 265 Ga. 404, 407 (2) (456 SE2d 581) (1995); Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). Both of the actions to which plaintiffs attribute damages here are ministerial in nature, being failures to carry out procedures that were already established. We will consider each of the four defendants in relation to these allegedly negligent actions.

(a) George Walls is the County Roads Superintendent, responsible for planning, organizing, and directing the daily operation of the roads department. He also works on the road crews. The roads department is responsible for the general maintenance and upkeep of the county road at issue here, and its employees mow next to and inspect the road several times each year. The actions of the road crews in carrying out their directions are ministerial. See Nelson v. Spalding County, supra, 249 Ga. at 336 (2) (a); Lincoln County v. Edmond, 231 Ga. App. 871, 875 (2) (501 SE2d 38) (1998). However, no evidence in the record establishes that Walls negligently inspected the county road, and thus the trial court did not err in granting his motion for summary judgment.

The plaintiffs also allege in their complaint that Walls negligently failed to monitor the accident history of the intersection of the county and state roads. However, the evidence showed that the DOT, not the county, maintained the intersection, and plaintiffs have pointed to no evidence establishing any failure to comply with a policy of monitoring the intersection’s accident history. Therefore, the trial court did not err in granting Walls’ motion for summary judgment. See Stone v. Taylor, supra, 233 Ga. App. at 889.

(b) Nat Dukes is Walls’ assistant superintendent, and the analysis that applied to Walls also applies to Dukes. Dukes, along with Walls, argued in his summary judgment motion that the plaintiffs presented no evidence of negligent inspection, and plaintiffs did not meet their burden of pointing out specific evidence showing a negligent inspection. Again, the trial court did not err in granting Dukes’ motion for summary judgment. See Stone v. Taylor, supra, 233 Ga. App. at 889.

(c) Larry Price is the Chief Administrator for Field Operations for Barrow County, responsible for helping the county commissioners manage the county government, including overseeing public works, public safety, planning and permitting, budgeting, purchasing, and grants. Plaintiffs have pointed to no evidence in the record showing that Price had any ministerial duties, much less evidence showing that he negligently performed or failed to perform such duties. Price is therefore entitled to summary judgment.

(d) Brad Benson is the County Transportation Engineer, responsible for planning and directing engineering personnel and coordinating utilities installations and road construction in new subdivisions. As with Price, plaintiffs have pointed to no evidence in the record showing that Benson performed any ministerial duties, negligently or otherwise. Benson is also entitled to summary judgment.

Decided February 10, 2000

Russell & Mingledorff, Currie M. Mingledorff II, Christopher T. Adams, for appellants (case no. A99A1968).

Winship E. Rees, for appellants (case no. A99A1969).

Terry E. Williams, for appellees.

2. In light of the ruling in Division 1, the plaintiffs’ remaining enumerations of error are moot.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J, concur.


author: Pope, Presiding Judge.

text:
    A99A2045.
    BROWN et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (529 SE2d 439)
   Pope, Presiding Judge.

Alona Brown’s tort suit was dismissed on the grounds that she failed to timely serve the defendant after the running of the statute of limitation. The uninsured motorist carrier raised this defense in response to Brown’s failure to serve. Brown appeals, contending that she diligently attempted to locate the defendant and that her motion to serve by publication should have been granted.

On October 7,1998, five days before the running of the statute of limitation, Brown, for herself and as guardian of a minor, brought suit against Alton Snow, Jr. for injuries arising out of a car accident. Although Brown served State Farm Mutual Automobile Insurance Company, her uninsured motorist carrier, Brown has never served Snow. On January 19, 1999, State Farm filed a motion to dismiss. Over one month later, on February 22, Brown filed a motion requesting permission for service by publication. On April 9, the trial court granted State Farm’s motion to dismiss.

1. As we have previously held,

[w]here service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if the plaintiff shows that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible.

(Citation and punctuation omitted.) Forsyth v. Brazil, 169 Ga. App. 438 (313 SE2d 138) (1984); Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 (392 SE2d 33) (1990) (applying Brazil to uninsured motorist case). If the plaintiff is unable to obtain personal service, then OCGA § 33-7-11 (e) of the uninsured motorist statute allows service by publication upon a showing of due diligence. Smith v. Commercial Union Assurance Co., 246 Ga. 50, 52 (268 SE2d 632) (1980). In order to obtain service by publication, the plaintiff must show due diligence in determining whether the defendant was either out of state or avoiding service. OCGA § 33-7-11 (e); Wilson v. State Farm &c. Ins. Co., 239 Ga. App. 168, 171 (520 SE2d 917) (1999).

When the defendant has not been served, on an appropriate motion the trial judge must examine the facts and determine whether the plaintiff was guilty of laches in failing to serve the defendant in a diligent manner. McCrary v. Preferred Risk Mut. Ins. Co., 198 Ga. App. 727, 728 (402 SE2d 519) (1991). This determination “is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” (Citation and punctuation omitted.) Id. at 729.

In Pickens v. Nationwide &c. Ins. Co., 197 Ga. App. 550 (398 SE2d 792) (1990), this court held that the plaintiff’s failure to move for service by publication for more than four months from the date of filing when the complaint was filed shortly before the running of the statute of limitation, combined with the fact that the plaintiff knew the defendant could not be found in the state when the complaint was filed, was sufficient support for a finding of lack of due diligence.

The evidence in this case reveals that Brown’s initial effort to serve the defendant at the time of the complaint failed. After three months passed, State Farm filed a motion to dismiss, and Brown did not move for service by publication for another month after the motion. Brown’s attorney submitted an affidavit describing in general his efforts to locate Snow. But the affidavit contains only vague statements about his efforts, and it does not provide dates or other specifics sufficient to gauge his effort.

On the day of the hearing on State Farm’s motion to dismiss, Brown submitted affidavits from Jonas Berwick, an employee of a “national locator service,” and Douglas E. Dreeman, a permanently appointed DeKalb County process server. Berwick’s affidavit states in conclusory fashion that he diligently but unsuccessfully attempted to locate Snow’s residence using computer databases. Dreeman stated that he was unsuccessful in attempting to serve the defendant on one day in January 1999 and another in February. He also investigated leads on two other occasions to no avail. But more importantly, all of Dreeman’s efforts occurred after State Farm filed its motion to dismiss.

Because there is no evidence of any effort to locate or serve Snow for three months between the initial failed attempt and State Farm’s motion to dismiss, we cannot say the trial court abused its discretion in finding a lack of due diligence.

2. Brown also contends that it is against public policy to allow the uninsured motorist carrier to move to dismiss the action based on a failure to serve the defendant when the action potentially involves that carrier and when the carrier has been properly served.

Decided February 10, 2000.

Law Offices of V. Allan Khoshbin, Rajan Bhandari, for appellants.

Harper, Waldon & Craig, Christopher M. Farmer, Janice M. Wallace, for appellee.

The purpose of uninsured motorist legislation is to require some provision for first-party insurance coverage to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers.

(Citations and punctuation omitted; emphasis supplied.) Smith, 246 Ga. at 51.

It is true that a known motorist is deemed uninsured when he cannot be personally served. Smith, 246 Ga. at 52. But, under those circumstances, a plaintiff is not “legally entitled to recover damages from the uninsured motorist” unless he or she serves the defendant by publication and reduces his or her claim against the defendant to a judgment. Id. at 51; Boles v. Hamrick, 194 Ga. App. 595, 596 (391 SE2d 418) (1990). And, under OCGA § 33-7-11 (d) and (e), the uninsured motorist carrier can answer in its own name, become a party to the litigation, and contest issues of liability, damages and coverage. The carrier is allowed to assert any defense that would be available to the defendant. Milburn v. Nationwide Ins. Co., 228 Ga. App. 398, 399 (1) (491 SE2d 848) (1997). We find no merit to Brown’s argument.

Judgment affirmed.

Smith and Miller, JJ, concur.


text:
    A99A2461.
    HALL v. J. H. HARVEY COMPANY.
    (529 SE2d 444)
   Barnes, Judge.

Pauline Hall sued J. H. Harvey Company for damages after she allegedly fell in a Harvey’s grocery store. Hall appeals from the trial court’s grant of summary judgment to Harvey. Because the record shows Hall had actual knowledge of the box that caused her fall, we affirm.

In Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997), our Supreme Court reiterated that

in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary, care due to actions or conditions within the control of the owner/occupier.

It- also lightened the evidentiary load placed upon slip-and-fall plaintiffs opposing summary judgment by requiring a defendant to produce evidence showing negligence on the part of the plaintiff before the plaintiff is required to produce rebuttal evidence on this issue. Id. at 748.

The evidence in this case consists of a deposition and affidavit from Hall and the deposition of a Harvey’s employee. Hall testified in her deposition that when she turned onto the dairy aisle to get butter and eggs, she saw three or four store employees stocking shelves and a lot of boxes on the aisle floor and on pallets. Hall pushed her grocery cart around the boxes in order to get to the butter and eggs. She then walked around the front of her cart, stepped around a box that was right in front of her cart, and picked up a carton of butter. While placing the butter in her cart, she fell over the box she had previously stepped around. At times, Hall testified that she fell over some other boxes in addition to the box located in front of her cart. Because these boxes had been opened and broken down, they were lying flat on the floor. Hall agreed, however, that the box in front of her cart was the main box over which she fell. In an affidavit signed by Hall three months after her deposition, she swore that she “fell over a box” (Emphasis supplied.) In both her deposition and affidavit, Hall swore that she did not talk with any Harvey’s employees before her fall.

Curtis Bess, a former Harvey’s employee, testified that he was stocking goods in the dairy aisle when Hall fell. Bess testified that he placed a case of butter he planned to stock next to the dairy cooler. According to Bess, Hall approached him with a coupon in her hand and asked for his assistance in locating the item. As Bess showed Hall where the item was located, he warned Hall to be careful of the box he had placed against the dairy cooler. He then turned around and walked away from Hall to get more butter from a cart to stock in the dairy cooler. When he turned back toward the dairy cooler with the butter in his hands, he saw Hall stumble over the same box about which he had warned her. According to Bess, Hall caught herself and never fell to the floor or against the dairy cooler.

In this appeal, Hall contends these facts do not justify summary judgment in favor of the defendant because issues of fact exist on whether she “had equal knowledge of the particular box she tripped over” and whether Bess “distracted [her] when he told her to watch out for the box.” (Emphasis supplied.) We disagree.

Decided February 10, 2000.

Herbie L. Solomon, for appellant.

Clyatt, Clyatt & DeVaughn, Robert M. Clyatt, Carl G. Fulp III, for appellee.

First, the record shows that Hall had actual knowledge of the box that caused her to fall. Second, contrary to the assertions of her counsel on appeal, the record does not show that Hall was distracted from seeing the box as a result of Bess’s warning to watch out for the box. Instead, it shows that either (1) Bess warned Hall about the box well before her alleged fall or (2) nothing was said to Hall by a Harvey’s employee before her fall that could have caused a distraction.

Because the record shows that Hall had actual knowledge of the box over which she fell, the trial court did not err when it granted summary judgment to Harvey. See McCoy v. West Bldg. Materials of Ga., 232 Ga. App. 620, 622 (502 SE2d 559) (1998).

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.