text:
    A94A2607, A94A2608.
    A SOUTHERN OUTDOOR PROMOTIONS, INC. v. NATIONAL BANNER COMPANY, INC.; and vice versa.
    (449 SE2d 684)
   Birdsong, Presiding Judge.

Appellant, A Southern Outdoor Promotions, Inc. f/k/a Southern Outdoor Promotions, Inc. filed an application for interlocutory review. Expressly exercising the constitutional power vested in this court to aid our jurisdiction and to protect and effectuate our judgments, we granted a limited interlocutory review. By written order, this court expressly limited interlocutory review to the sole appellate issues whether the trial court erred by authorizing the production (without limiting said production to matters relevant to the account at issue) of documents listed in Items 2 and 11 of Exhibit A of appellee National Banner Company, Inc.’s notice to take deposition and notice to produce, to-wit: “2. All correspondence between the Internal Revenue Service and the defendant concerning the defendant’s recent audit, and a copy of IRS’s audit result and/or report”; “11. Copy of the defendant’s most current balance sheet with supporting schedules, ledgers, etc.” Notwithstanding the limited scope of the granted interlocutory review, appellee National Banner Company, Inc. has filed a cross-appeal with a single enumeration specifying that the trial court erred in denying its motion for summary judgment on July 22, 1993; the record does not reveal that cross-appellant previously filed and had been granted an application for interlocutory review of this order. Held:

Case No. A94A2608

1. In summary judgment the evidence and all reasonable inferences and conclusions arising therefrom are construed in favor of the opposing party. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843). Although cursory examination reveals that cross-appellant’s enumeration of error is without merit, for the following reason we do not reach an adjudication of the merits of the cross-appeal. By order of this court, dated May 16, 1994, wherein the constitutional power of this court (Ga. Const. 1983, Art. VI, Sec. I, Par. IV) was expressly invoked to restrict the scope of our interlocutory review so as to aid directly our jurisdiction and to protect and effectuate our judgments, we granted interlocutory review “but only as to” those limited legal issues regarding discovery as above-listed. By this order, this court limited its jurisdiction to the resolution only of the appellate issues for which permission was affirmatively granted to file an interlocutory review. The laws of this state are graduated with reference to their obligation or authority; in the hierarchy of such legal graduation the provisions of the constitution of this state are paramount to and controlling over state statutes. See Warren v. State, 255 Ga. 151, 156, n. 11 (336 SE2d 221). Therefore OCGA § 5-6-34 (d) notwithstanding, this court in its judicial discretion and by the express invocation of its constitutional power did and hereby continues to elect to remain without jurisdiction to address cross-appellant’s enumeration that the trial court erred in denying cross-appellant’s motion for summary judgment. Martin v. Williams, 263 Ga. 707 (438 SE2d 353); Southeast Ceramics v. Klem, 246 Ga. 294 (1) (271 SE2d 199); Aetna Cas. &c. Co. v. Cantrell, 197 Ga. App. 672 (1) (399 SE2d 237); and their progeny, which do not involve cases where this court expressly has invoked its constitutional powers to limit the scope of interlocutory review or discretionary appeal in aid of its jurisdiction or to protect or effectuate its judgments, are distinguishable and not controlling. The appeal in Case No. A94A2608 is dismissed.

Case No. A94A2607

2. Appellee’s motion to strike and for sanctions is denied.

3. In the disposition of this appeal judicial notice is taken of the record of Case No. A94A2608 currently on file with this court. See Backus Cadillac-Pontiac v. Ernest, 195 Ga. App. 579 (394 SE2d 367). In general, parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. OCGA § 9-11-26. Examining the record before us and the relevant documents, including the pretrial order in the record of Case No. A94A2608 and the uncontroverted evidence that a substantial portion of the documents sent to the IRS for examination have been returned to appellee/taxpayer, we conclude that the IRS documents at issue are of de minimis relevancy within the meaning of E. H. Siler Realty &c. v. Sanderlin, 158 Ga. App. 796 (1) (282 SE2d 381). Such records are not automatically discoverable upon a de minimis showing of relevancy. “ ‘Certainly the competing interest in an individual’s right to privacy must be accommodated in the discovery process. Otherwise, the discovery process would become a device for the unscrupulous litigant to squeeze concessions from the opposing side in cases where such concessions were totally unwarranted. This sort of abuse simply cannot be tolerated in an ordered system of justice.’ Borenstein v. Blumenfeld, 151 Ga. App. 420, 421 (260 SE2d 377).” E. H. Siler Realty at 797. Under the facts of this appeal, we find that appellant’s right to privacy substantially outweighs the de minimis relevancy of this particular discovery request. See E. H. Siler Realty, supra. Moreover, the request for all correspondence between taxpayer and the IRS and a copy of the IRS audit result and/or report, pertaining to appellant’s most recent tax audit, is overly broad and oppressive. For example, discovery of documents pertaining to appellant’s “recent audit” is not reasonably limited to any particular audit — appellant may have had several recent audits which could pertain to another tax year not related in any manner to this lawsuit. Similar observations as to lack of reasonable relevancy and over-breadth could be made regarding all such correspondence and audit results and/or reports which pertain to such “recent audit.” In fact, appellee made no attempt even to limit his request to a recent audit of tax documents pertaining to a certain tax year or to certain tax years. “ ‘The [discovery] notice should be specific enough in its demands to relate the documents sought to the questions at issue.’ ” Washburn v. Sardi’s Restaurants, 191 Ga. App. 307, 310 (4) (381 SE2d 750). We conclude from the face of this broad request that it was filed primarily for purposes of oppression or annoyance. See generally OCGA § 9-11-26 (c). To require the tax documents of appellant to be produced, pursuant to such a broad discovery request as exists in this case, “would in my mind be annoyance, embarrassment, oppressive and an undue burden as contemplated in [OCGA § 9-11-26 (c)].” Borenstein, supra at 422 (concurring opinion); cf. Magliaro v. Lewis, 203 Ga. App. 632, 635 (5) (417 SE2d 395) where the trial court did not abuse its discretion in finding that the discovery sought was not reasonably calculated to lead to admissible evidence relevant to the issues in the case. McKinnon v. Smock, 209 Ga. App. 647, 648 (3) (434 SE2d 92), where lost wages were sought as an element of damages and income tax records for specific years were requested, is distinguishable and not controlling. We conclude the trial court abused its discretion in ordering production of the tax documents here in issue.

4. Item 11 of appellee’s notice to produce sought production of a “copy of the [appellant’s] most current balance sheet with supporting schedules, ledgers, etc.” By requiring production of all supporting schedules, ledgers, etc., appellee has not only made a demand that fails to inform appellant with adequate specificity of those documents which he is required to produce, but one which is not reasonably restricted to the disclosure of information relevant to matters in issue at trial. Recognizing the grave potential for abuse of discovery where evidence of a defendant’s financial circumstances is sought, “it has been held almost uniformly that where pre-trial discovery of the defendant’s financial resources is authorized, the scope of such should be restricted to the extent necessary to prevent an unreasonable intrusion into the defendant’s privacy.” Holman v. Burgess, 199 Ga. App. 61, 64 (404 SE2d 144). Considering the relatively unrestricted scope of the request for financial information here sought, which includes a virtual open-ended description of the supporting documents subject to disclosure, “we hold that the request for production submitted by the appellee in this case was so manifestly burdensome and oppressive that the trial court would not have been authorized to compel responses to it.” Id.

Decided November 3, 1994.

Stuart A. Kurtz, for appellant.

H. Darrell Greene & Associates, Paul Shimek III, for appellee.

Accordingly, we conclude that the trial court abused its discretion in ordering production of those documents broadly identified in Items 2 and 11 of appellee’s notice to produce.

Judgment reversed in Case No. A94A2607. Appeal dismissed in Case No. A94A2608.

Blackburn and Ruffin, JJ., concur.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A94A1482.
    PUBLISHERS CIRCULATION FULFILLMENT, INC. et al. v. BAILEY.
    (449 SE2d 645)
   Ruffin, Judge.

Pursuant to the grant of a discretionary appeal under OCGA § 5-6-35 (a), Publishers Circulation Fulfillment, Inc. appeals the superior court’s affirmance of an award of death benefits by the State Board of Workers’ Compensation to the widow and minor children of Nelson E. Bailey, Jr. Bailey was employed as the appellant’s customer service manager at the time of his death from acute carbon monoxide intoxication.

Following a hearing, the administrative law judge (“ALJ”) found that, as the appellant’s customer service manager, Bailey was responsible for ensuring the proper delivery of the New York Times to its subscribers. He supervised 30 different routes, was called upon personally to deliver the papers when a delivery person was absent, and frequently worked seven days a week. Bailey’s job required him to be on call by beeper, to stay beyond shift periods until work was completed, and to have a car available to make deliveries whenever necessary. Six minutes after his night shift began one evening, Bailey was found unconscious in the front seat of his car with the engine running, inside the employer’s closed warehouse. He was transported to a hospital where he died the following day. The ALJ found that Bailey frequently slept in his car, inside the warehouse with the engine running. The ALJ further found that while the immediate cause of death (acute carbon monoxide intoxication) was known, the precipitating cause of death (suicide or accident) was unknown. Accordingly, relying on Zamora v. Coffee Gen. Hosp., 162 Ga. App. 82, 84-85 (290 SE2d 192) (1982), the ALJ applied the presumption of compensability in cases of unexplained death and concluded that Bailey died as a result of an accident that arose out of and in the course of his employment and that the evidence presented by the employer failed to rebut the presumption.

Appellant contends the ALJ incorrectly applied the presumption of compensability because when he was discovered, Bailey was not in a place where he was reasonably expected to be in the performance of his duties. Appellant also maintains the ALJ improperly found that Bailey’s death arose out of his employment.

Upon appeal from an award of the board granting compensation, evidence will be construed in a light most favorable to the party prevailing before the board; every presumption in favor of validity of the award should be indulged in by the reviewing court; neither the superior court nor this court has any authority to substitute itself as a factfinding body in lieu of the board; and weight and credit to be given witness testimony and conflicts in evidence are for the board’s exclusive determination. Howard Sheppard v. McGowan, 137 Ga. App. 408, 410 (2-5) (224 SE2d 65) (1976).

“The burden of proof in a workers’ compensation case is upon the claimant to show that the employee suffered an accidental injury which arose out of and in the course of his employment. The claimant is aided in his burden by the well-established presumption that when an employee is found dead in a place where he might reasonably have been expected to be in the performance of his duties, it is presumed that the death arose out of his employment.” (Citations and punctuation omitted.) Zamora, supra at 83-84. However, “the presumption is viable only where, under the evidence, the precipitating rather than the immediate causative factor in the death is unexplained.” Id. at 85. “[W]here the evidence demonstrates that the precipitating causative factor of a death is known and explained, neither the claimant, the administrative law judge nor the Full Board is authorized to rely upon the presumption that the death ‘arose out of the employment.’ [Cit.]” Id.

Bailey was found unconscious in his running automobile approximately six minutes after his 10:00 p.m. work shift commenced. He was supposed to be in the warehouse at that time in the course of his employment. The warehouse doors were shut, the driver’s seat was reclined, the driver’s door was open, and Bailey had one foot on the floor. Bailey worked long hours, 16 and 20 hour days. At times Bailey slept at the workplace. The record reveals that in the week before his death, Bailey was chronically fatigued. He had chronic diarrhea off and on for two weeks, had vomited on Monday and Tuesday of the week and had been denied his day off. On Wednesday and Thursday, Bailey felt a little better; then he was sick again on Thursday and Friday, December 13, the last day he reported for work. Friday morning, Bailey returned home at about 5:30 a.m.; he looked “terrible.” He was very gray in the face, shaking, and very chilled; his wife had to unlock the door to let him in the house. Bailey sat down on the sofa and then went to the bathroom and vomited. Bailey returned to work without eating any breakfast. Later his wife called him, and he said he was feeling better and that they would take a trip to Arkansas the following day as planned. At least one fellow employee saw Bailey at the warehouse in the morning and observed that he appeared ill.

Viewing the evidence in favor of the party who prevailed before the board, we agree that Bailey was found in a place where he might reasonably be expected to be in the performance of his work. It is undisputed that the immediate cause of death was carbon monoxide intoxication. However, appellant contends the precipitating cause of Bailey’s death is also known, since Bailey’s death resulted from his own act of parking his car in an enclosed garage with the motor running. Thus, the ALJ erred in applying the presumption of compensability.

However, there exists no affirmative proof in the record that Bailey, as a matter of law, parked his car, parked in the enclosed garage or left the engine running. Such conclusions can be reached only by drawing inferences from certain circumstantial evidence in the record in such a manner as to favor the appellant, who did not prevail before the board. While the board had the statutory authority to engage in such factfinding, this court on appeal is bound to construe the evidence in a light most favorable to the party prevailing before the board and must draw all reasonable inferences and indulge in those presumptions which favor supporting the award. McGowan, supra. Moreover, “ ‘[a] mere inference is not sufficient to overcome the presumption but competent evidence must be adduced at the hearing to overcome it which is contrary or irreconcilable with it. [Cit.]’ . . . ‘(E)vidence must be introduced to show that the death did not arise out of the employment to overcome the presumption.’ [Cit.]” (Indention omitted.) Zamora, supra at 86-87.

The factfinder in this case determined, after weighing the evidence and judging witness credibility, that the presumption of compensability should be applied. Inherent in this determination is the finding that the weight of the existing credible evidence did not affirmatively establish an alternate noncompensable explanation for Bailey’s death within the meaning of Zamora. We agree. As in Zamora, “[t]he circumstantial evidence in the instant case does not affirmatively establish an alternate noncompensable explanation for [Bailey’s] death. It merely suggests several noncompensable possibilities, no one of which is shown as the explanation for [Bailey’s death].” Id. at 86-87.

Decided October 21, 1994

Reconsideration denied November 4, 1994

Gardner, Willis, Sweat & Goldsmith, Todd S. Handelman, for appellants.

Swift, Currie, McGhee & Hiers, Robert R. Potter, Melodie L. Belcher, for appellee.

“A liberal construction must be given to effectuate the humane purposes for which the Workers’ Compensation Act was enacted.” (Citations and punctuation omitted.) Travelers Ins. Co. v. Southern Elec., 209 Ga. App. 718, 719 (1) (434 SE2d 507) (1993). Accordingly, the superior court did not err in affirming the award of the full board.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A1714.
    KING v. THE STATE.
    (449 SE2d 870)
   Ruffin, Judge.

Appellant, Arthur King, entered a non-negotiated guilty plea to aggravated assault and the trial court sentenced him to 15 years’ imprisonment. Two days later, appellant filed a motion to withdraw the plea, asserting that he had been under the influence of drugs at the time he entered the plea. Subsequently, he amended the motion to assert ineffective assistance of counsel at the guilty plea hearing. This appeal follows the trial court’s denial of that motion.

The State originally offered appellant a negotiated plea of six years to serve and placed a November 12, 1992 deadline for accepting that offer. Appellant rejected that offer and instead chose to go to trial. However, on November 16, 1992, appellant changed his mind and entered his non-negotiated plea of guilty.

At the hearing on the guilty plea, the prosecutor asked appellant if he understood that by pleading guilty he was waiving various rights, including the right to a jury trial, the right to subpoena witnesses, the right to cross-examine witnesses, the right to the assistance of counsel during a trial, the right to appeal a conviction, and that the State would be required to prove his guilt beyond a reasonable doubt. Appellant indicated that he understood, and also acknowledged that he discussed his case fully with his attorney; he understood the nature of the charges against him; he had not been threatened or promised anything in exchange for the guilty plea; and that he was not under the influence of drugs or alcohol.

The trial court inquired of appellant’s attorney whether, based upon his conversations with appellant, he believed appellant clearly understood the rights he would give up by pleading guilty, and whether he believed appellant was entering the guilty plea freely, voluntarily, and intelligently. To both inquiries, appellant’s attorney responded affirmatively.

The State presented a summary of the factual basis of the charged offense, which was virtually uncontroverted by appellant other than the location of the victim’s gunshot wound. Before accepting appellant’s plea, the trial court gave him the opportunity to change his mind, and appellant reiterated his desire to plead guilty.

1. Appellant contends that his guilty plea was not entered voluntarily and intelligently because he had not been fully advised of all the constitutional rights he would waive by pleading guilty. Specifically, he points out that the trial court did not inform him of the presumption of innocence, the right to testify or offer other evidence, the right not to incriminate oneself, and that by pleading guilty or remaining silent one obtains a jury trial. He also contends that he was not advised of the consequences of pleading guilty prior to the trial court’s acceptance of the plea.

Uniform Superior Court Rule 33.8 sets forth the factors that must be addressed by the trial court in determining the voluntariness of a guilty plea. However, the trial court’s failure to comply fully with that rule is harmless, where the record as a whole demonstrates that appellant’s plea was knowing and voluntary. Wood v. State, 190 Ga. App. 179, 181 (2) (378 SE2d 520) (1989).

The State may meet its burden of demonstrating that the guilty plea was entered voluntarily and intelligently either by (1) showing on the record of the guilty plea hearing that the defendant realized all the rights he was waiving and the possible consequences of his plea, or (2) using extrinsic evidence that shows that the guilty plea was knowing and voluntary. Id. at 180. In the instant case, most of the factors delineated in USCR 33.8 were addressed during the guilty plea hearing. During that hearing and the hearing on the motion to withdraw the plea, appellant’s trial attorney indicated that appellant understood his rights and voluntarily entered the plea. Further, the attorney recalled discussing with appellant the State’s earlier offer of a negotiated plea which appellant rejected, and warning appellant that he may receive a substantial sentence upon entering a “blind” plea of guilty. The attorney also stated that although appellant appeared “hungover” at the hearing on the plea, he did not believe appellant had been under the influence of drugs.

Under the above circumstances, “ [although the court did not specifically address each issue found in Superior Court Rule 33.8, we find the court’s determination of voluntariness clearly supported by the record. We find no error. [Cit.]” McClendon v. State, 256 Ga. 480, 481 (2) (350 SE2d 235) (1986).

2. Appellant also contends that he should be able to withdraw his guilty plea because his trial attorney provided ineffective assistance during the hearing on the guilty plea.

However, to prevail on a claim of ineffective assistance of counsel, appellant must demonstrate that his trial attorney’s “performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. [Cit.]” Hall v. State, 210 Ga. App. 792, 793 (1) (437 SE2d 634) (1993). In the specific context of a challenge to a guilty plea based on counsel’s ineffectiveness, “the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U. S. 52, 59 (106 SC 366, 88 LE2d 203) (1985).

In the instant case, appellant does not assert that he would have insisted on going to trial had it not been for his trial attorney’s alleged errors. Rather, as found by the trial court, it appears that appellant in hindsight regretted rejecting his attorney’s advice to accept the State’s earlier negotiated plea and was attempting to avoid the consequences of his own unwise choice. Under such circumstances, we cannot say that the trial court was clearly erroneous in finding that appellant had not proven ineffective assistance of counsel. Hall v. State, supra at 794.

3. We reject appellant’s contention that the trial court applied an incorrect burden of proof during the hearing on the motion to withdraw the guilty plea. With regard to the claim of ineffective assistance of counsel, the trial court properly placed the burden of proof upon appellant. Id. at 793. However, as to whether appellant’s guilty plea was entered voluntarily and intelligently, the State had the burden of proof, Scurry v. State, 194 Ga. App. 165, 166 (390 SE2d 255) (1990), and nothing in the record suggests that the trial court assigned the burden otherwise.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided October 12, 1994

Reconsideration denied November 4, 1994

Megan C. De Vorsey, Ronald J. Scholar, for appellant.

Lewis R. Slaton, District Attorney, Vivian D. Hoard, Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A93A1385, A93A1386.
    LAKES et al. v. MARRIOTT CORPORATION et al. (two cases).
    (450 SE2d 708)
    Decided November 4, 1994.

      Simmons & Toliver, Joseph H. King, Jr., for appellants.

      Gorby & Reeves, Michael J. Gorby, Martha D. Turner, Amanda H. Burri, for appellees.
   McMurray, Presiding Judge.

Our prior judgments in these cases, Lakes v. Marriott Corp., 210 Ga. App. 335 (436 SE2d 36), having been reversed by the Supreme Court of Georgia in Lakes v. Marriott Corp., 264 Ga. 475 (448 SE2d 203), the prior judgments of this court are vacated and the judgment of the Supreme Court of Georgia is made the judgment of this court in each of these cases. The judgments of the trial court are accordingly reversed.

Judgments reversed.

Johnson and Blackburn, JJ., concur.


author: Johnson, Judge.

text:
    A94A2641.
    THE STATE v. BENSON.
    (451 SE2d 475)
   Johnson, Judge.

The state files this direct appeal asserting the trial court erred in entering a void sentence. State v. Baldwin, 167 Ga. App. 737, 738 (1) (307 SE2d 679) (1983). In this case, a jury returned guilty verdicts against Tamika Michelle Benson on three counts: felony murder, voluntary manslaughter and aggravated assault. Neither the state nor the defense objected to the form of the verdicts. At the sentencing hearing, relying on Edge v. State, 261 Ga. 865 (414 SE2d 463) (1992), the trial court found as a matter of law the jury’s finding of voluntary manslaughter precludes a conviction on the felony murder charge, and sentenced Benson on the voluntary manslaughter charge. “Because the jury in this case convicted the defendant of both voluntary manslaughter and felony murder, it must be assumed the jurors found the underlying aggravated assault to be the product of provocation and passion. Thus, only the voluntary manslaughter conviction may stand.” Id. at 868 (2).

Decided November 4, 1994.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Rebecca A. Keel, Assistant District Attorneys, for appellant.

Robert G. Fierer, Ike E. Duru, Colette B. Resnik, for appellee.

The state relies on Wilson v. State, 262 Ga. 588 (422 SE2d 536) (1992) in which, as is true in this case, no objection was made to the form of the verdict. In Wilson, the Supreme Court found: “[W]here the defendant fails to object to convictions for both voluntary manslaughter and felony murder based on the same aggravated assault, it is not error to sentence the defendant for the crime of felony murder. [Cit.] Absent an objection to the recharge or the jury’s verdict in this case, the trial court was not under a duty to sentence the defendant for the crime of voluntary manslaughter.” Id. at 590 (2) (a). See also Dennard v. State, 263 Ga. 453, 454 (3) (435 SE2d 26) (1993); Cruz-Padillo v. State, 262 Ga. 629, 630 (2) (422 SE2d 849) (1992). Applying this reasoning, however, neither is the trial court in the absence of an objection to the form of the verdict under a duty to sentence the defendant for the crime of felony murder. The trial court did not err in applying Edge, supra, and sentencing Benson on the voluntary manslaughter charge. The sentence, being within the statutory guidelines for that offense, is not void.

Judgment affirmed.

Andrews, J., concurs. Beasley, P. J., concurs in judgment only.


author: Blackburn, Judge.

text:
    A94A1970.
    BUCHANAN v. THE STATE.
    (449 SE2d 660)
   Blackburn, Judge.

The appellant, James Buchanan, appeals his conviction by a jury of a violation of the Georgia Controlled Substances Act.

The evidence viewed in the light most favorable to the verdict shows that on September 23, 1993, Ernest Bonapart, a narcotics agent, drove his undercover vehicle in an area of Clayton County known for its high distribution of crack cocaine. Buchanan was standing alone on the street and waved at the agent. The agent turned his vehicle around and returned to the location where Buchanan was standing. Buchanan walked up to the agent’s vehicle and the agent asked him if he had two $20 bags of crack cocaine. After a short conversation between the two, Buchanan kneeled down on the side of the agent’s vehicle and picked up two ziplock bags, each containing a small piece of crack cocaine. Buchanan subsequently dropped the bags on the floor of the vehicle. Agent Bonapart gave Buchanan two $20 bills from the county’s funds, and Buchanan quickly walked away.

The agent informed the other officers by radio that the sale was completed and provided the officers with a description of Buchanan. Approximately six minutes later, Buchanan was apprehended in the area and arrested. Thereafter, he was taken to Agent Bonapart who identified him as the person who sold him the contraband. Buchanan was also identified at trial by Agent Bonapart and another officer involved in the investigation.

Buchanan’s version of the events conflicted with the testimony provided by the State’s witnesses. Buchanan testified that Agent Bonapart waved at him and asked him to come over to the vehicle. When the agent asked him for crack cocaine, Buchanan told the agent that he did not have any, but indicated that the agent could probably find some cocaine if he checked around in the area. Buchanan further stated that he did not have any contraband because he did not “mess with it.” As he walked away from the agent and proceeded in the direction of the store, he was suddenly apprehended and arrested. At the time of the arrest, he did not have any of the county’s money or any contraband on his person. Over objection, the trial court admitted a certified copy of Buchanan’s 1989 conviction for possession of cocaine for the limited purpose of impeaching his testimony that he did not “mess” with cocaine.

1. In three separate enumerations, Buchanan asserts that the evidence produced at trial is insufficient to support his conviction. We disagree. Viewing the evidence under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), there was ample evidence from which a rational trier of fact could determine Buchanan’s guilt beyond a reasonable doubt of the offense charged. Although Buchanan denied selling cocaine to the agent, the jury was authorized to reject Buchanan’s testimony in light of the narcotics agent’s testimony that Buchanan sold him the contraband. “On appeal of a criminal conviction, the appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” (Citations and punctuation omitted.) Platt v. State, 211 Ga. App. 721, 722 (440 SE2d 495) (1994). The jury resolves all conflicts in the evidence produced at trial. Id.

We reject Buchanan’s assertion that a directed verdict of acquittal was warranted in light of the sharp conflict in the evidence produced at trial. “A directed verdict of acquittal in a criminal case is authorized only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or not guilty. When a conviction is upheld on appeal because the evidence is such that a rational trier of fact could find the appellant’s guilt beyond a reasonable doubt, according to the standard in Jackson v. Virginia, supra, it cannot possibly be said the evidence demanded a verdict of acquittal.” (Citation and punctuation omitted.) Kirkland v. State, 211 Ga. App. 805, 807 (1) (440 SE2d 542) (1994).

2. Next, Buchanan asserts that the trial court erred in admitting the certified copy of his prior conviction for impeachment purposes.

Under Bland v. State, 198 Ga. App. 671, 672 (402 SE2d 782) (1991), Buchanan’s statement that he did not mess with cocaine could be construed as a denial that he had ever been involved in any cocaine-related offenses “so as to render admissible for purposes of impeachment (by disproving the facts testified to by defendant) evidence that he had previously been convicted of possession of cocaine.” Consequently, the trial court did not err in admitting this prior conviction. See Mitchell v. State, 158 Ga. App. 628 (2) (281 SE2d 260) (1981).

3. Lastly, Buchanan maintains that the trial court erred in granting the prosecutor’s oral reverse Batson challenge and disallowing his exercise of peremptory strikes to exclude two white jurors from the venire. Buchanan complains that he was forced to accept those jurors, and therefore, was denied the right to be tried by a fair and impartial jury.

The appellate record does not include a transcript of the voir dire and it is not clear as to whether voir dire was recorded. However, the appellate record does show that Buchanan exercised nine peremptory strikes and all of these strikes were exercised against white jurors. The final composition of the trial jury was five whites, five African-Americans, and two others.

Under the United States Constitution, a criminal defendant is prohibited from engaging in purposeful discrimination on the basis of race in the exercise of peremptory challenges. Georgia v. McCollum, 505 U. S. __(112 SC 2348, 120 LE2d 33) (1992). Buchanan’s overwhelming use of peremptory strikes to exclude white jurors demonstrates that race was a factor in the jury selection process and establishes a prima facie showing of discrimination as the trial court found. Although Buchanan maintains that the prosecution did not make the requisite showing of racial discrimination, this issue is moot because Buchanan purportedly offered race-neutral reasons for the exercise of the strikes which the trial court considered and rejected. See Lewis v. State, 262 Ga. 679 (2) (424 SE2d 626) (1993). Thus, our inquiry must focus on whether Buchanan’s explanations for the exercise of the peremptory strikes were sufficiently race-neutral, case-related, clear and reasonably specific. See Berry v. State, 263 Ga. 493 (435 SE2d 433) (1993). “In so doing, we must give the trial court’s factual findings great deference. We may only disregard those findings if they are clearly erroneous.” (Citations and punctuation omitted.) Lingo v. State, 263 Ga. 664, 666 (1b) (437 SE2d 463) (1993).

Decided October 27, 1994

Reconsideration denied November 7, 1994.

Joseph M. Todd, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

Buchanan’s attorney stated that he exercised peremptory strikes against the challenged white jurors because they were equivocal when asked during general voir dire whether they would give more credibility to the testimony of a police officer than to that of other witnesses, and whether they could stand by their opinions, even if they were in the minority. The trial court, however, rejected this explanation and found that none of the jurors on the venire hesitated or answered equivocally in responding to those questions. The court further noted that the defense failed to ask any follow-up questions concerning any juror’s perceived hesitation or reluctance. The court also rejected Buchanan’s explanation that he also struck one of the jurors because she worked in a bank’s account security department. The court found that this juror had not worked in the bank’s security department, and noted that the defense had accepted a black juror who also worked in a bank.

We cannot say that the trial court’s findings on the explanations given were clearly erroneous especially in the absence of a transcript of the voir dire. Id. “The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed.” (Citation and punctuation omitted.) Hayes v. State, 211 Ga. App. 801, 803 (1) (440 SE2d 539) (1994).

Judgment affirmed.

Birdsong, P. J., concurs. Ruffin, J., concurs in judgment only.


author: Birdsong, Presiding Judge.

text:
    A94A2481.
    MECO OF ATLANTA, INC. v. SUPER VALU STORES, INC.
    (449 SE2d 687)
   Birdsong, Presiding Judge.

Appellant/plaintiff Meco of Atlanta, Inc. filed suit to enforce a special materialman’s lien against appellee/defendant Super Valu Stores, Inc. Appellant appeals from the order of the superior court granting appellee’s motion for summary judgment and denying appellant’s motion for summary judgment.

Appellant sold certain materials and equipment to subcontractor Descon Group, Inc. The materials were incorporated into a construction project located on real property owned by Alterman Properties, Ltd. Appellant has never been paid for these items despite its repeated demands for payment. Alterman originally leased the property, which includes a wholesale food distribution center, to Delhaize The Lion Subsidiary, Inc. for a term of fifteen years with an option to extend the lease period for up to three additional five-year terms. Subsequently Alterman and Delhaize (then known as Food Giant) amended the lease to allow Food Giant to assign the lease to appellee Super Valu Stores, Inc. with the provision that as of the date of such assignment the basic lease term would be changed from 15 to 20 years. On February 23, 1985, Food Giant assigned the lease to appellee; a memorandum noted that the basic lease term had been changed to 20 years (terminating on February 23, 2005) but the other terms of the lease and amendments continued in full force and effect. In 1990 appellee contracted with Associated Environmental, Inc. (AEI) to remove and replace a truck refueling system used in the food distribution center; the project required installation of new underground fuel storage tanks and above-ground pumps and controls. AEI subcontracted a substantial portion of this work to Descon Group, Inc. which in turn purchased materials and equipment from appellant Meco; the last of the materials and equipment for the project was furnished on March 6, 1991. On March 29, 1991, appellant filed and recorded a materialman’s and mechanic’s claim of lien, pursuant to OCGA § 44-14-361 et seq., “on the building and real estate of Alterman Properties, Ltd., a Georgia limited partnership, for satisfaction of a claim which became due on March 6, 1991, for improving said property by furnishing materials and/or services ... at the instance of Descon Group, Inc.” The claim of lien failed to assert that the estate being subjected to a claim was that granted to appellee Super Valu Stores, and failed to identify Super Valu expressly within said lien claim. The affidavit/notice of suit filed by appellant expressly listed Alterman Properties, Ltd., as the current owner of the estate against which the lien was filed, and did not list appellee Super Valu Stores as having any legal interest in the property against which the lien was being asserted.

On April 12, 1991, appellant filed a complaint on account against Descon; a consent judgment was entered on behalf of appellant in the amount of $64,209.87 plus interest for the materials and equipment furnished. Descon, however, failed to make any payment to appellant pursuant to the consent judgment. On April 24, 1992 and July 15, 1992, appellee filed a bond and revised bond, respectively, discharging the property from appellant’s claim of lien. Appellee was then substituted as party defendant in place of Alterman Properties; appellant filed an amended complaint averring causes of action against appellee both on grounds of claim of lien and contract. Held:

1. Appellee concedes that its leasehold interest in the property is an estate for years and that, as a general principle, a claim of lien can be filed and enforced against a leasehold interest. James G. Wilson Mfg. Co. v. Chamberlin &c. Co., 140 Ga. 593 (79 SE 465). “[A] laborer or mechanic is entitled to a lien on whatever interest his employer had in the property at the time the work was done, or the materials were furnished.” (Emphasis supplied.) Id. at 593 (3). “ ‘Want of title in the defendant to the premises on which the lien is claimed, and alleged title in a third person who is no party to the suit, will not bar an action for foreclosing and enforcing the statutory lien of a materialman,’ ” because if the defendant has any interest in the premises upon which the lien can take effect, that interest is bound. Id. at 593 (1); compare D & N Elec. v. Underground Festival, 202 Ga. App. 435, 436 (1) (414 SE2d 891) (physical precedent only as to Division 1). “ ‘Every legal interest in real and personal property can be’ seized and sold.” Wilson Mfg. Co. at 593 (2). But, “ ‘ “[a] tenant can not order work done upon the demised premises and charge the owner with the cost, unless there is some relation existing between him and his landlord other than that of lessor and lessee, by virtue of which the landlord expressly or impliedly consents to the contract under which the improvements are made. The mere knowledge of the landlord that the improvements are being made by the tenant is insufficient to charge him or his premises with their cost. He must expressly or impliedly authorize the tenant to make the improvements for the former’s benefit.” ’ ” (Emphasis supplied.) D & N Elec., supra at 436 (2); compare Underground Festival v. McAfee Engineering Co., 214 Ga. App. 243, 244 (1) (447 SE2d 683); F. S. Assoc. v. McMichael’s Constr. Co., 197 Ga. App. 705, 706 (1) (399 SE2d 479). Even assuming the improvements were to become the landlord’s property at the termination of the tenant’s lease, such fact standing alone would not create a basis for imposing a lien against the landlord. “The landlord’s equitable interest in improvements is not subject to a lien.” Id. Thus, if the lien at issue was filed solely against the reversionary interest of the landlord in the premises, rather than against the legal interest in the premises of the appellee/lessee, it would indirectly allow appellee/lessee to subject the landlord’s equitable interest in improvements to the leasehold to a lien asserted by appellant/materialman. It is well settled that one cannot do indirectly that which the law does not allow to be done directly. Kingsmill Village Condo. Assn. v. Homebanc Fed. Savings Bank, 204 Ga. App. 900, 902 (2a) (420 SE2d 771).

Moreover, the filing for record of a claim of lien shall be in substance in the form provided in OCGA § 44-14-361.1 (a) (2). This form requires the affirmative identification of the party against whose interests in the premises the lien is being filed. Lien statutes are in derogation of the common law and are to be strictly construed and strict compliance therewith is required. L & W Supply Corp. v. Whaley Constr. Co., 197 Ga. App. 680, 681 (399 SE2d 272). “As to the form of the claim, which is what we are solely dealing with here, the statute sets out what it shall be ‘in substance.’ OCGA § 44-14-361.1 (a) (2). The filed document is to identify the claim by specifying, for one thing, [the identity of the real person whose legal interest is being subject to lien].” Id. at 681; cf. Mikart, Inc. v. Ansley Park Plumbing &c. Co., 9 BR 144, 148 (9) (USBC, N.D. Ga.) (lack of evidence that lien was filed against leasehold as required by then-existing statute resulted in conclusion petitioner failed to perfect a materialman’s lien).

It remains to be determined whether appellant adequately filed and enforced its claim of lien against appellee’s leasehold interest in the property. Examination of the lien document reveals that when the lien is examined in its entirety an ambiguity exists whether the lien was filed against the leasehold interest in the premises or was intended to be filed and was filed only against the owner’s reversionary interest therein. This ambiguity must be resolved in favor of appellee and against appellant who caused the lien document to be filed. Accordingly, the lien claim must be construed as having been filed solely against the owner’s reversionary interests and not against the leasehold interest in the premises. Moreover, contrary to the requirements of OCGA § 44-14-361.1 (a) (2), the lien document failed to reveal affirmatively the identity of the real person whose interest in the premises was being subjected to lien. For each of these reasons we find that the lien claim was not effective, and that the trial court did not err as enumerated. A grant of summary judgment must be affirmed if it is right for any reason. Hanna v. McWilliams, 213 Ga. App. 648, 651 (3) (446 SE2d 741).

2. Appellant further asserts the trial court erred by granting appellee’s motion for summary judgment and denying appellant’s motion for summary judgment, as appellee was obligated to satisfy Meco’s claim under the governing lease agreement. Appellant, citing Hoffman Elec. Co. v. Chiyoda Intl. Corp., 203 Ga. App. 731 (417 SE2d 371), specifically argues that a cause of action arose under the terms of the leasing agreement which created a liability on appellee’s part to remove the liens and to discharge the underlying claims on which they are predicated. However, examination of appellant’s complaint, as amended, reveals that even under the liberal standards of the Civil Practice Act (see generally Wade v. Polytech Indus., 202 Ga. App. 18, 21 (2) (413 SE2d 468)) appellant did not effectively aver in its complaint a claim under the precedent of Hoffman Elec., supra. Accordingly, we find this issue is not ripe for appellate consideration. Cf. Brown v. Tomlinson, 246 Ga. 513, 515 (272 SE2d 258); Southern Business Machines of Savannah v. Norwest Financial Leasing, 194 Ga. App. 253, 260 (390 SE2d 402). Nothing in this opinion is intended to address the legal validity of such a contention were it to be presented subsequently in a timely case containing an adequate averment of a claim grounded on the holding in Hoffman Elec., supra.

Decided November 8, 1994.

Thompson & Slagle, Jeff B. Slagle, for appellant.

Swift, Currie, McGhee & Hiers, Jeffrey Y. Lewis, for appellee.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2578.
    TERRELL v. GEORGIA TELEVISION COMPANY.
    (449 SE2d 897)
   Birdsong, Presiding Judge.

James F. Terrell, former police chief of Winder, Georgia, filed this suit for defamation against Georgia Television Company d/b/a WSB Television, Channel 2, for making an allegedly defamatory broadcast on the occasion of Terrell’s resignation as police chief during an investigation into alleged mismanagement and missing traffic tickets. Apparently, during an audit it was determined that some 600 traffic tickets were missing from about 4,200 tickets issued during the year. “Missing funds” were also raised in controversy, but the audit found there were no “missing funds.” After that audit was made and reported and after Chief Terrell was asked to resign, $10,000 cash was found in two safes in Chief Terrell’s office on Saturday, December 19, 1992. The money was secured until the following Monday when the city administrator (clerk) could check the records to account for that money. It does not appear to be in material dispute that the money was fully accounted for by 4:00 p.m. on Tuesday, December 22, 1992, the time of the city council meeting. However, the following statement was broadcast by reporter Lynn Harasin, at the 6:00 p.m. news broadcast on Tuesday, December 22, 1992: “Now the auditor said that he didn’t find any missing funds here in Winder, but the mayor told me today when they were cleaning out Chief Terrell’s office, they found more than $10,000 in cash in two of his safes, money that the mayor says was completely unknown and also unaccounted for.” (Emphasis supplied.) In fact, by that time (5:00 p.m., December 22, 1992), the city clerk had tallied the $10,000 cash against records for evidence confiscated, and found no unaccounted-for funds. After a demand for retraction by Terrell, defendant announced at the 11:00 p.m. broadcast that same day: “The city administrator now says that he has accounted for and has properly documented the $10,000 in cash found in two safes in Terrell’s office. The city administrator says that the money was seized in a drug raid.” The next day, December 23, 1992, at the 6:00 a.m. broadcast a WSB reporter announced: “This morning, the city administrator of Winder says he has now accounted for and properly documented the $10,000 in cash found in two safes in Terrell’s office. The city administrator says that the money was seized in a drug raid.”

Terrell contends the latter broadcasts were not truthful retractions because they stated that the city administrator “now says” the money was “now accounted” for, to imply falsely that the money was unaccounted for when Harasin reported that “the mayor says [the money] was completely unknown and also unaccounted for.” Terrell further contends there is a dispute whether the mayor actually told the reporter that the money was unaccounted for, because the mayor does not remember making such a statement. Terrell contends the false statements were made with actual malice because the reporter did not check the story with the city clerk before repeating the mayor’s alleged words, in light of the reporter’s knowledge of the mayor’s alleged animosity toward Terrell and in light of the city audit which, before the $10,000 was found in Terrell’s office safes, had concluded that there were no missing funds.

Summary judgment was granted to the defendant television station, and Terrell appeals. Held:

To recover damages for defamation as a public official, Terrell must demonstrate that the statements were made with actual malice, that is, with knowledge of their falsity or with reckless disregard for their truth or falsity; in this context, “reckless disregard” is not based on what a reasonably prudent publisher would have done, rather, there must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Stange v. Cox Enterprises, 211 Ga. App. 731, 735 (440 SE2d 503), citing St. Amant v. Thompson, 390 U. S. 727, 731 (88 SC 1323, 20 LE2d 262). This high standard of proof may protect some erroneous or false communications, but is required because “ ‘the stake of the people in public business and the conduct of public officials is so great that neither the defense of truth nor the standard of ordinary care would protect against self-censorship and thus adequately implement First Amendment policies.’ Id. at 731-732.” Stange, supra at 733. A public official in a defamation action must show actual malice with “ ‘convincing clarity,’ ” even on motion for summary judgment. Id.

The evidence cited to us does not rise to the level of “clear and convincing showing of actual malice” (Stange, supra at 733), that is, there is not “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication” (St. Amant, supra at 731, quoted in Stange, supra at 732) or broadcast it with reckless disregard for its truth or falsity equivalent to malice. Id. The record shows beyond material dispute that the mayor did in fact tell the reporter that he did not know the origin of the money in the safes. The mayor also admitted he may have used the precise words reported by the reporter. The fact that the mayor could not remember the precise words he used does not make the report false. Id. at 735. Even given the reporter’s supposed knowledge of the mayor’s alleged fear of Terrell, her reliance on the mayor’s statement as authoritative and her mere failure to investigate his statement by consulting the city clerk do not establish bad faith, much less “actual malice,” even if a reasonably prudent person would have investigated. Id. at 733, quoting St. Amant, supra at 733; New York Times Co. v. Sullivan, 376 U. S. 254, 287-288 (84 SC 710, 11 LE2d 686); and Harte-Hanks Communications v. Connaughton, 491 U. S. 657, 688 (109 SC 2678, 105 LE2d 562). That the reporter may have known the mayor and Terrell were allegedly “political enemies” does not render her reliance on the mayor’s statement of fact unreasonable per se, much less malicious; knowledge attributed to the reporter of the mayor’s “hostility” to Terrell amounted, in Terrell’s own words, to no more than the mayor’s expressed “fear” of Terrell and his statement that there were many things he could tell her about the chief. None of this makes the mayor’s statements probably false, nor makes the reporter’s report of his statements false. The reporter stated what the mayor said, and what the mayor said was true so far as he knew at the time.

It was not, as a matter of legal duty, in the facts of this case, incumbent on the reporter to investigate “whether the mayor’s expressed fears [of Terrell] were well-founded” before reporting the mayor’s statement that the money found in Terrell’s safes was “unaccounted for.” As for appellant’s contention that the reporter should have investigated because the audit had reported no “missing funds,” this audit was performed before the $10,000 was found in Terrell’s safes, and the fact that there were no “missing funds” would not make it untrue that the $10,000 found later was “unaccounted for,” or, as more pertinent to the facts of this case, which the mayor thought were “unaccounted for.”

These contentions, singly or all together, do not amount to a clear and convincing showing of actual malice — that the publisher “in fact entertained serious doubts as to the truth of his publication” (St. Amant, supra, quoted in Stange, supra at 732) or made them with reckless disregard for their falsity equivalent to such actual malice.

Decided November 8, 1994.

Mayer & Beal, Randolph A. Mayer, Andrew M. Beal, for appellant. r

Dow, Lohnes & Albertson, Peter C. Canfield, Jeffrey C. Levy, Thomas M. Clyde, for appellee.

Judging the evidence in respondent Terrell’s favor (see Barber v. Perdue, 194 Ga. App. 287 (390 SE2d 234)), we find no genuine issue of material fact as to actual malice on the part of the defendant in this case. The summary judgment to defendant was correct.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A1047.
    TRUCANO v. ROSENBERG et al.
    (450 SE2d 216)
   Blackburn, Judge.

Gene B. Trucano appeals the trial court’s order granting defendants’ motion for summary judgment. Trucano filed the underlying action seeking damages for the alleged dental malpractice of Charles M. Rosenberg, D.D.S. and Darrell J. Gilbert, D.D.S.

In Trucano’s original complaint she properly invoked the provisions of OCGA § 9-11-9.1 (b) as it was filed within ten days of the expiration of the applicable statute of limitation. However, instead of filing the expert affidavit within the 45 days allowed under OCGA § 9-11-9.1 (b) or a motion to extend this time limit, Trucano dismissed her complaint without prejudice. Thereafter, within six months of this dismissal, Trucano refiled her complaint pursuant to OCGA § 9-2-61 (a). Trucano’s refiled complaint was accompanied by an expert affidavit supporting her claims for dental malpractice.

Trucano contends that as OCGA § 9-11-9.1 (b) provides an absolute right to amend her original action for 45 days, her original complaint did not contain a non-amendable defect and she was allowed to dismiss and refile it pursuant to OCGA § 9-2-61 (a). The defendants argue that as Trucano never filed an affidavit on her original complaint, it was not a valid suit and the renewal provisions contained in OCGA § 9-2-61 (a) do not apply. We agree.

In Brake v. Mintz, 193 Ga. App. 662, 667 (388 SE2d 715) (1989), we noted “that because appellants did not have an expert’s affidavit at the time they filed their complaint, nor did they supplement their pleadings with such an affidavit within 45 days thereafter under OCGA § 9-11-9.1 (b),... it follows that although appellants’ expert’s affidavit was [eventually filed], there was no ‘amendable defect’ ” which would allow an amendment pursuant to OCGA § 9-11-15 (a). The present case is analogous. We cannot allow the filing of the expert’s affidavit outside the provisions of OCGA § 9-11-9.1 (b) pursuant to OCGA § 9-2-61 when same cannot be accomplished pursuant to OCGA § 9-11-15 (a). Id.

Failure to file an expert affidavit with the complaint as required by OCGA § 9-11-9.1 is a non-amendable defect foreclosing the use of OCGA § 9-2-61, unless the court determines that the affidavit was available prior to the filing of the complaint and that the failure to timely file it was the result of a mistake. OCGA § 9-11-9.1 (f); Lyberger v. Robinson, 207 Ga. App. 845 (429 SE2d 324) (1993). The legislature did not exclude complaints filed under subsection (b) from the requirements of subsection (f) of OCGA § 9-11-9.1. The legislature’s express exclusion of the mandates of subsection (e) from application to complaints filed pursuant to subsection (b) clearly indicates the legislature’s intent that subsection (f) apply equally to complaints filed pursuant to OCGA § 9-11-9.1 (a) and (b). Compare OCGA § 9-11-9.1 (e) with OCGA § 9-11-9.1 (f). Therefore, plaintiff’s failure to file her expert’s affidavit or a motion for extension of time within 45 days of filing of her complaint, foreclosed her ability to use the renewal provisions contained in OCGA § 9-2-61.

Trucano requests that she be allowed to maintain her action regardless of our decision as she claims that the issue presented herein is one of first impression and the law was unclear at the time her action was filed. We do not agree that the law was unclear, in fact, a reading of OCGA § 9-11-9.1 (b) and (f) makes the procedure for the filing of an expert affidavit in the case sub judice abundantly clear. Trucano’s failure to follow those procedures does not make the law any less clear. Therefore, we find that the trial court properly granted the defendants’ motion for summary judgment.

Decided May 4, 1994

Reconsideration denied November 9, 1994

David N. Levine, for appellant.

Berlon & Timmel, Michael R. Berlon, Webb, Carlock, Copeland, Semler & Stair, Douglas W. Smith, for appellees.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

       OCGA § 9-11-9.1 (b) provides: “The contemporaneous filing requirement of subsection (a) of this Code section shall not apply to any case in which the period of limitation will expire within ten days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared. In such cases, the plaintiff shall have 45 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause extend such time as it shall determine justice requires.”

       OCGA § 9-2-61 (a) provides: “When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state . . . either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, subject to the requirement of payment of costs in the original action as required by subsection (d) of Code Section 9-11-41; provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once.”


author:
Beasley, Presiding Judge.
      Andrews, Judge,

text:
    A94A1101.
    HASTY v. THE STATE.
    (450 SE2d 278)
   Beasley, Presiding Judge.

The questions on appeal are whether the trial court erred in finding that defendant Hasty appeared at trial without counsel due to lack of diligence and, if so, whether the court erred in denying a new trial. Hasty’s direct appeal was remanded to the trial court to determine why Hasty appeared without counsel, after having been warned that he would have to proceed by himself if he appeared without representation. Hasty v. State, 210 Ga. App. 722, 723 (1) (437 SE2d 638) (1993). Hasty was represented at the hearing on remand by the same court-appointed counsel who represented him on the first appeal and continues to represent him on this appeal. He was appointed when an out-of-time appeal was granted after a habeas corpus petition was brought.

Hasty first appeared for trial on May 21, 1991, with counsel Strickland, who had been appointed to represent him because of his indigency. The charges were kidnapping with bodily injury (OCGA § 16-5-40), three counts of aggravated assault (OCGA § 16-5-21 (a)), theft by taking motor vehicle (OCGA § 16-8-2), speeding (OCGA § 40-6-181), and attempting to elude a police officer (OCGA § 40-6-395 (a)). The State did not seek the death penalty for the kidnapping, so the punishment if defendant was convicted would be life imprisonment. OCGA § 16-5-40.

After the jury was selected, defendant’s counsel advised the court that defendant had indicated at the commencement of the proceedings that he wanted to discharge counsel and had written out his reasons, which were marked as an exhibit but are not in the record. Hasty was asked to explain, and he related his dissatisfaction with efforts to reach a plea bargain.

The court advised Hasty that appointed counsel was well qualified to represent him, and there followed a discussion among the court, both counsel, and Hasty about the efforts to reach a plea bargain in this case and in a case which had been tried several months before and for which the same counsel had represented Hasty. At this time he was in custody under the sentence imposed after the earlier conviction. No plea arrangement could be reached on the current charges because the State insisted on retaining the kidnapping charge which carried an automatic life sentence.

The court advised Hasty that he would either have to be represented by Strickland or he would have to represent himself, which it said was a very difficult thing for a layperson to do. The court recommended against that alternative but said that if defendant insisted on it, he had a right to do so. Defendant did not indicate any desire to represent himself but asked for a delay to see if he could get retained counsel instead. After discussion about postponement and waiver of the demand for trial, and the court stating the options of proceeding with the trial that day with court-appointed Strickland’s representation or defendant’s self-representation, the court permitted the case to be reset in order for defendant to have an opportunity to employ counsel. The court cautioned that he would be tried in July, either with hired counsel or by himself. Although defendant was indigent, the court made no inquiry as to defendant’s expected means or anticipated sources for the hiring of counsel to try this multi-charge, high-penalty case. Nor did the court explain the ramifications of self-representation or state that if counsel could not be employed, no new counsel would be appointed.

1. According to Hasty’s unrebutted and unimpeached evidence at the hearing on remand, he took the following steps to obtain paid counsel in the interim two months before the case was tried. He was in prison and jail during this period and described his limited opportunity to make calls; only collect calls could be made from the correctional institutions in which he was incarcerated, and his calls to attorneys under this system met with refusal. When he was able to make free calls while in jail, either the attorneys were unavailable or he could not meet the fee. He had thought he could employ counsel for about $2,500 and could use his pension check of between $380-$440 to work this out; he had lost his house between the trial on the earlier charges and the first time this case was called in May, and he had no other assets at the time. He named a number of attorneys known to him whom he called, and he testified that he also tried others whose names he obtained from the phone book and from other inmates. He named the attorney in the expert’s firm whom he had called and could not provide the $10,000 retainer. He sought help from his sister and brother.

They also tried to hire counsel, naming some of the ones contacted without success, and visited one in particular, but they had insufficient funds to meet his $7,500 retainer. Others, some of whom were named, were not available. The brother, who testified, already had a personal loan and a car loan from the credit union. There was no other family except two aunts, and there was no indication that they had any resources which could be used for this purpose.

A local attorney gave expert testimony that a case of this nature would require a fee of about $10,000 - $15,000 and that no competent attorney would take it for less than $7,500. He confirmed that defendant had contacted his firm.

Hasty testified that when he was brought to court on July 10, he told the court that he did not have an attorney, could not afford one, and wanted one.

The trial proceeded on July 17 with Hasty representing himself. The court asked an attorney to sit with defendant during the trial, but he was not appointed to represent defendant, who was convicted of all charges. His sentences included life in prison.

Hasty maintains that the finding of lack of diligence was not authorized by the evidence because he presented a prima facie case of diligence against which there was no contrary evidence. The question of reasonable diligence in procuring counsel is a factual one to be decided by the trial court. Shaw v. State, 251 Ga. 109, 111 (303 SE2d 448) (1983). However, here the evidence demands a finding of due diligence, for it conclusively establishes that defendant has been indigent since at least his trial on the prior charges and has been financially unable to employ counsel. The reason for no retained counsel was lack of funds, not lack of diligence. The diligence test applies to non-indigents, as recognized in the opinion the first time this case appeared here. Hasty v. State, supra at 723. See also Houston v. State, 205 Ga. App. 703, 704 (423 SE2d 431) (1992). Every person has a right “to be defended by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services.” (Emphasis supplied.) Delk v. State, 100 Ga. 61 (27 SE 152) (1896). See Shaw, supra at 111. A non-indigent defendant must act with reasonable diligence in obtaining an attorney’s service. Callaway v. State, 197 Ga. App. 606, 607-608 (398 SE2d 856) (1990).

It was abundantly evident that Hasty was not able to employ an attorney. The record establishes this by the fact of his uninterrupted indigency and the unsuccessful numerous attempts, because of lack of finances, by himself and his family members to obtain the services of an attorney. We conclude that the diligence applied by Hasty in his effort to hire counsel was reasonable as a matter of law.

2. There remains the question of whether he is entitled to a new trial. If he waived court-appointed counsel in a manner required by law, then the fact that representation was by himself would not require a new trial.

“ ‘A person charged with a felony in a state court has an unconditional and absolute constitutional right to a lawyer. Gideon v. Wainwright, 372 U. S. 335 [(83 SC 792, 9 LE2d 799) (1963)]. This right attaches at the pleading stage of the criminal process, Rice v. Olson, 324 U. S. 786 [(65 SC 989, 89 LE 1367) (1945)], and may be waived only by voluntary and knowing action. Johnson v. Zerbst, 304 U. S. 458 [(58 SC 1019, 82 LE 1461) (1938)]; Carnley v. Cochran, 369 U. S. 506 [(82 SC 884, 8 LE2d 70) (1962)]. Waiver will not be “lightly presumed,” and a trial judge must “indulge every reasonable presumption against waiver.” Johnson, supra, at 464.’ Boyd v. Dutton, 405 U. S. 1, 2 (92 SC 759, 30 LE2d 755). ‘It is clear, however, that should a defendant choose to represent himself, he must have an opportunity to voluntarily, knowingly, and intelligently waive his right to counsel.’ Rogers v. State, 156 Ga. App. 466 (1) (274 SE2d 815).” Fernandez v. State, 171 Ga. App. 290, 292 (319 SE2d 503) (1984). See also Callaway v. State, supra. Cf. Mock v. State, 163 Ga. App. 320, 321 (293 SE2d 525) (1982).

“[T]he standard for waiver requires an intentional relinquishment or abandonment of a known right or privilege, and the ‘ “constitutional right of the accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear on the record.” Johnson v. Zerbst, 304 U. S. 458 (58 SC 1019, 82 LE2d 1461) (1937).’ Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49) (1981). [Cits.]” Butler v. State, 198 Ga. App. 217, 220 (1) (401 SE2d 43) (1990).

Had the court inquired about the practical possibility of hiring counsel at the time this case first came on for trial on May 21, it would have been clear that the likelihood was bleak. At that point defendant should have been so advised so that defendant would understand that if he could not find the means to employ counsel, the consequences of discharging court-appointed counsel Strickland would be an absolute and permanent waiver of any court-appointed counsel. A court can, in its discretion, appoint other counsel, Turner v. State, 199 Ga. App. 836 (1) (406 SE2d 512) (1991), and the court should have made certain that defendant realized he probably could not retain counsel and, in that event, would not have opportunity for court-appointed counsel again because the court had determined in its discretion not to appoint one. This was necessary because, if defendant could not get retained counsel despite due diligence, was indigent, and did not want to represent himself, then he could be forced to represent himself at trial only if he had waived court-appointed counsel.

The record in the present case does not demonstrate that Hasty ever knowingly, voluntarily, and intelligently waived his right to appointed counsel. “The presumption is against waiver, and it is the responsibility of the court, when the accused is without counsel, to clearly determine whether there has been a proper waiver. [Cit.]” Rogers v. State, 156 Ga. App. 466, 467 (274 SE2d 815) (1980).

“Waiver of counsel requires more than a showing of a knowledge of right to counsel; there must also be evidence of relinquishment. . . . In order to establish a valid waiver, a trial ‘ “judge must investigate as long and as thoroughly as the circumstances of the case before him demand. ... To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter. . . . (Cits.)” (Cits.)’ [Cit.]” Kirkland v. State, 202 Ga. App. 356, 357-358 (414 SE2d 502) (1991). That is missing here.

The record is also bereft of evidence that Hasty understood the consequences, dangers, and permanency of waiving his right to counsel at the time he sought dismissal of his court-appointed counsel. On the morning of trial, the court merely confirmed that new counsel would not be appointed and said: “. . . what you will have to do today is represent yourself, which is a very dangerous thing.”

Since it appears that Hasty was unable to obtain counsel despite diligent efforts and did not waive his right to counsel, then, as directed in the earlier decision in this case, “a new trial is warranted.” Hasty v. State, supra at 724. See Wallis v. State, 137 Ga. App. 457 (224 SE2d 91) (1976), in which the absence of retained counsel was the result of reasons beyond defendant’s control. Compare Wood v. State, 199 Ga. App. 252 (1) (404 SE2d 589) (1991); Smith v. State, 194 Ga. App. 810 (392 SE2d 288) (1990), in which there was a lack of reasonable diligence.

Judgment reversed and case remanded.

Pope, C. J., Birdsong, P. J., Johnson and Blackburn, JJ., concur. McMurray, P. J., Smith and Ruffin, JJ., concur in the judgment only. Andrews, J., dissents.

Andrews, Judge,

dissenting.

Hasty rejected his court-appointed trial counsel just before the commencement of his trial. The trial court made it clear that if Hasty refused to accept the court-appointed counsel, he would be forced to represent himself at the trial. Hasty then informed the trial court that he did not want court-appointed counsel but wanted to hire his own attorney. In order to give Hasty an opportunity to hire a lawyer, the trial court continued the trial from the May calendar to the July calendar. The trial court informed Hasty that he would be tried with hired counsel or “if you don’t have [hired counsel] by July, you will have to represent yourself then.” When the case was called in July, Hasty showed up without counsel, informed the court that he had been unable to hire counsel, and stated that he wanted court-appointed counsel to represent him. The trial court refused to give Hasty new appointed counsel and required Hasty to proceed to trial without the assistance of counsel.

We remanded this case to the trial court in Hasty v. State, 210 Ga. App. 722, 725 (437 SE2d 638) (1993), for a hearing to determine whether Hasty’s lack of representation at trial was attributable to his own lack of diligence. See Shaw v. State, 251 Ga. 109, 111 (303 SE2d 448) (1983); Callaway v. State, 197 Ga. App. 606, 607-608 (398 SE2d 856) (1990). After a hearing on remand, the trial court concluded that Hasty’s lack of representation was due to his own lack of diligence and that no new trial was required.

On appeal, Hasty claims he acted diligently in attempting to hire counsel and that the trial court erred in refusing to grant him a new trial since he did not waive his right to appointed counsel. In reversing the trial court and ordering a new trial, the majority concludes that Hasty is entitled to a new trial because the record does not reflect that he knowingly waived the right to be represented by appointed counsel.

Assuming that Hasty diligently attempted but was unable to hire counsel, his asserted right to a new trial is based on the claim that he was indigent and the trial court erroneously denied his request for court-appointed counsel after he was unable to hire one. Accordingly, the determinative issue in this case is whether Hasty validly waived the right to be represented at trial by appointed counsel.

Although Hasty qualified as an indigent and was given appointed counsel, he rejected his court-appointed counsel when the case was first called for trial. “[A]n indigent criminal defendant does not have an absolute right to discharge one court-appointed attorney and have another substituted in his place. A request of this sort addresses itself to the sound discretion of the trial court.” Burney v. State, 244 Ga. 33, 35 (257 SE2d 543) (1979); Turner v. State, 199 Ga. App. 836 (406 SE2d 512) (1991). The trial court did not abuse its discretion by informing Hasty that by rejecting his court-appointed counsel, he would be required to represent himself. When informed of this fact, Hasty told the trial court he wanted to hire his own lawyer, and asked for a continuance of the trial to do so. The trial court accommodated Hasty’s request for an opportunity to hire counsel but made clear that by rejecting his court-appointed counsel, Hasty would be required to represent himself in the event he did not obtain hired counsel.

Decided November 9, 1994.

Steven M. Reilly, for appellant.

Britt R. Priddy, District Attorney, Johnnie M. Graham, Assistant District Attorney, for appellee.

The record is adequate to show the trial court found that Hasty’s rejection of court-appointed counsel, along with his request for a continuance to hire counsel, was “the functional equivalent of a knowing and voluntary waiver of counsel.” Mercier v. State, 203 Ga. App. 494, 495 (417 SE2d 430) (1992). As to any claim that Hasty was not adequately warned of the dangers of proceeding pro se, the record reflects that the trial court warned Hasty of the difficulty of proceeding pro se and recommended against it. Moreover, “[b]y his very invocation of the right to [hired] counsel at trial, appellant clearly understood and wished to avoid the danger of self-representation.” Burnett v. State, 182 Ga. App. 539, 541 (356 SE2d 231) (1987); compare Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981). The trial court properly denied a new trial.


author: McMurray, Presiding Judge. Smith, Judge,

text:
    A94A1338.
    LEWIS v. THE STATE.
    (450 SE2d 448)
   McMurray, Presiding Judge.

Defendant was charged via indictment with four counts of aggravated assault against four victims. The evidence adduced at a jury trial, including defendant’s statement to the police, showed the following: On the evening of March 14, 1990, Travis Wright, accompanied by his friend Verrona Stephens, was making a delivery for Pizza Hut, driving his Corvette. The delivery address was a duplex, from which defendant was exiting, carrying a bicycle, as Wright approached to make his delivery. Wright accused defendant of scratching his car with the bicycle. The two exchanged words, which escalated into fisticuffs. Wright left but subsequently returned, ostensibly looking for his hat and a zippered money bag. Wright and defendant again got into fisticuffs. Verrona Stephens left the scene without waiting for Wright. Wright returned to Pizza Hut and, accompanied by his manager, Linda Freeman, he drove to an address across the street from defendant’s, to pick up Verrona Stephens. As she was about to get into Wright’s car, defendant “just opened fire on the car[; . . . shooting] five or six times[,]” with a .22 rifle. Sylvia Dawkins, who had previously permitted Verrona Stephens to telephone Travis Wright from her home, testified that Ms. Stephens “came running back [to Dawkins] and knocking and just shaking and screaming. And she said . . . ‘Please, my boyfriend done got shot. I know my supervisor have[,] because she fell over.’ ” Ms. Dawkins affirmed that Ms. Stephens “act[ed] scared. . . .” Meanwhile, in the car, Linda Freeman had been hit in “the left side of the head, behind the ear[. . . and lay] slumped over.” Travis Wright took Ms. Freeman’s pistol from her purse and “shot a couple of times. Just enough for him to quit so I could take off.”

Defendant admitted firing at Wright, claiming self-defense when Wright approached his home with what appeared to defendant to be a pistol hidden behind his back. Defendant claimed he was unaware of the presence of Linda Freeman and Verrona Stephens. The jury found him guilty on Counts 2, 3 and 4 and acquitted him on Count 1. His motion for new trial was denied and this appeal followed. Held:

1. Defendant contends the trial court “abused its discretion in allowing [one] victim to remain in the courtroom during the trial.” He argues that because this victim, Linda Freeman, was comatose and in a wheelchair as a result of her injuries, her presence “served only to prejudice [him] and deny him a fair trial.”

OCGA § 24-9-61.1 (a) provides: “The victim of a criminal offense may be entitled to be present in any court exercising jurisdiction over such offense. It shall be within the sole discretion of the [trial] judge to implement the provisions of this Code section and determine when to allow such victim to be present in such court and, if such victim is permitted to be present, to determine the order in which the testimony of such victim shall be given.” Count 4 of the indictment alleged that defendant “did unlawfully make an assault upon the person of Linda Freeman, with a firearm, by shooting the said Linda Freeman with said firearm. . . .” Consequently, Linda Freeman’s physical injuries as a result of the shooting were relevant to the allegations. See Barfield v. State, 170 Ga. App. 796, 797 (2) (318 SE2d 219); Miller v. State, 155 Ga. App. 54, 55 (4) (270 SE2d 466). We find no abuse of discretion. Watts v. State, 200 Ga. App. 54, 56 (6) (406 SE2d 562). Compare Walker v. State, 132 Ga. App. 476 (208 SE2d 350).

2. In his second enumeration, defendant contends the trial court erred in denying his motion for directed verdict of acquittal as to Count 2 of the indictment, which alleged that he committed aggravated assault against Verrona Stephens, by shooting a firearm “in the direction of the said Verrona Stephens, which placed [her] in reasonable apprehension of immediately receiving a violent injury. . . .” He argues that because Verrona Stephens did not testify, there is no evi-' dence that she was placed in a reasonable apprehension of receiving an immediate violent injury.

The state of mind of the victim of an assault is a question of fact, which may be established by circumstantial evidence. McGee v. State, 165 Ga. App. 423, 425 (3) (299 SE2d 573). In the case sub judice, Ms. Dawkins’ testimony that Ms. Stephens fled in terror from gunfire defendant directed at the car she was about to enter is sufficient circumstantial evidence that he placed Ms. Stephens in “a reasonable apprehension of immediately receiving a violent injury,” as alleged in the indictment. See Holbrook v. State, 168 Ga. App. 380, 381 (2) (308 SE2d 869). Consequently, the trial court did not err in denying defendant’s motion for directed verdict as to Count 2 of the indictment. Cox v. State, 205 Ga. App. 375 (1) (422 SE2d 68).

3. Defendant’s third enumeration contends the trial court erred in denying his motion for directed verdict of acquittal as to Count 4 of the indictment, which alleged that he committed aggravated assault by shooting Linda Freeman. He argues that there is no evidence that any of the seven shots attributed to him was the one which hit Ms. Freeman.

Defendant admitted shooting at the car. It is undisputed that Ms. Freeman was struck by bullets and sustained crippling wounds. Travis Wright testified that he saw she was struck in the left side of the head and slumped over, before he used her pistol to return defendant’s fire. This sequence of events is sufficient, beyond a reasonable doubt, to authorize the jury’s determination that the bullet which injured Ms. Freeman came from defendant’s rifle rather than from the pistol fired by Travis Wright. “The act of intentionally firing a gun at another, in the absence of justification, is sufficient to support a conviction for aggravated assault under [OCGA § 16-5-21 (a) (2)]. Steele v. State, 196 Ga. App. 330, 331 (2) (396 SE2d 4). [In the case sub judice, t]he evidence adduced below authorized a rational trier of fact reasonably to find proof of [defendant’s] guilt of aggravated assault beyond a reasonable doubt, under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).” Belins v. State, 210 Ga. App. 259 (1) (435 SE2d 675). It follows that the trial court did not err in denying defendant’s motion for directed verdict of acquittal as to Count 4.

4. Defendant’s fourth enumeration contends the trial court erred in not recharging justification without a request when it recharged the definition of aggravated assault. However, the record reveals that the trial court made direct inquiry as to any exceptions to the recharge. Defendant’s counsel responded: “None from the defendant, Your Honor.”

“The general rule in this [S]tate is that defendants in criminal cases are not required to except to the jury charge to preserve error for appeal. Code Ann. § 70-207 (a) [now OCGA § 5-5-24 (a)]. If, however, the trial court asks if there are [exceptions] to the charge, defense counsel must . . . state his objections or reserve the right to [except] on motion for new trial or on appeal. Jackson v. State, 246 Ga. 459 (271 SE2d 855). . . .” Rivers v. State, 250 Ga. 303, 308 (7), 309 (298 SE2d 1). Or defendant may state his immediate objections, “and may also reserve the right to raise additional objections on motion for new trial or on appeal.” McCoy v. State, 262 Ga. 699, 700 (2), 701 (425 SE2d 646). In the case sub judice, in reply to the trial court’s direct inquiry, defendant had no immediate objections to the recharge and failed to reserve the right to raise objections to the recharge in a subsequent motion for new trial or on appeal. Consequently, defendant has failed to preserve this enumeration for appellate review. Russell v. State, 264 Ga. 121, 122 (3) (441 SE2d 750). Compare Paradise v. State, 212 Ga. App. 166, 169, 170 (4) (a) (441 SE2d 497).

Judgment affirmed.

Pope, C. J., concurs. Smith, J., concurs specially.

Smith, Judge,

concurring specially.

I concur in Divisions 2, 3, and 4 and in the judgment. I am troubled, however, by the issue raised in Division 1 of the majority opinion.

It is certainly true that OCGA § 24-9-61.1 (a) places the decision whether to allow a victim to remain in the courtroom squarely within the trial judge’s discretion. Georgia case law provides little guidance, however, as to what would constitute an abuse of discretion. In my view, the cases cited by the majority are not exactly on point. In both Barfield v. State, 170 Ga. App. 796, 797 (2) (318 SE2d 219) (1984) and Miller v. State, 155 Ga. App. 54, 55-56 (4) (270 SE2d 466) (1980), the defendant was charged with aggravated battery under OCGA § 16-5-24 (a) by causing “bodily harm to another ... by seriously disfiguring [her] body.” In those cases the physical condition of the victim was an essential element of the offense. In Watts v. State, 200 Ga. App. 54, 56 (6) (406 SE2d 562) (1991), the victim testified (and was then permitted to remain in the courtroom). It is clear, therefore, that her physical condition was in no way comparable to that of the victim in this case.

This court has found no abuse of discretion in allowing the State to exhibit to the jury a three-year-old victim of aggravated assault, for the purpose of displaying the scar from his wound, Cail v. State, 194 Ga. App. 584, 585 (1) (391 SE2d 444) (1990), or in permitting the State to display an infant to the jury, where the defendant was charged with aggravated cruelty to children and aggravated battery. Harmon v. State, 208 Ga. App. 271, 272-273 (2) (430 SE2d 399) (1993). On the other hand, we have found an abuse of discretion when relatives of the victim repeatedly disrupted courtroom proceedings with uncontrolled emotional outbursts, Price v. State, 149 Ga. App. 397-400 (1) (254 SE2d 512) (1979), and when relatives of the victim were permitted to sit at the prosecution table without a showing by the State that their presence was necessary for an orderly presentation of the case. Walker v. State, 132 Ga. App. 476 (208 SE2d 350) (1974).

Although not as prejudicial, perhaps, as the situation in Price, supra, the presence in this case of the comatose victim slumped in a wheelchair throughout the trial surely could not have been ignored by the jury. It was likely to disturb and stir them despite having absolutely no probative value. Nevertheless, I can agree with the majority that the trial court did not abuse its discretion in permitting her presence.

The court gave careful consideration to the issue, and endeavored to balance the rights of the victim with those of the defendant. Ultimately, concluding that his discretion was very broad, he allowed the victim to remain but placed sensible restrictions on her presence: no medical attention could be administered to her in the courtroom and she could stay only if she was absolutely quiet. In addition, he gave direction to the State, cautioning it that the victim could be pointed out — introduced, so to speak — to the jury, but not “constantly” referred to during the trial.

It appears clear to me, however, that the real error lies in the prosecution’s disregard of this last instruction from the court. The State exceeded the limits set by the court. Indeed, it exceeded the bounds of both responsible prosecutorial conduct and simple fairness. It certainly did far more than point out or “introduce” the victim to the jury; it in fact did refer to this victim “constantly.” In addition, the State had two different witnesses point out the victim. I believe this was unacceptable in light of the court’s direction. It prejudiced and inflamed the jury, and it resulted in “wrong or oppression” sufficient to warrant interference by this court. Lemley v. State, 245 Ga. 350, 353-354 (3) (264 SE2d 881) (1980).

Unfortunately, however, the defense objected only once to the State’s actions in this regard, and that objection was not made on the ground that the State had exceeded the limits set by the court. Any error inherent in the State’s conduct therefore was not preserved for review. As a result, I am constrained to agree with the majority that the judgment must be affirmed.

Decided November 9, 1994.

Kathleen R. Kaye, Morris S. Robertson, for appellant.

Ralph M. Walke, District Attorney, L. Craig Fraser, Assistant District Attorney, for appellee.


text:
    A94A2529.
    STEPHENS v. ERNIE’S STEAKHOUSE OF STONE MOUNTAIN, INC. STEPHENS v. SIGMA DEVELOPMENT, INC.
    A94A2625.
    (450 SE2d 275)
   Birdsong, Presiding Judge.

Pamela Stephens appeals the grant of summary judgments to Ernie’s Steakhouse of Stone Mountain, Inc. and Sigma Development, Inc. in this slip and fall case. Ernie’s Steakhouse is the tenant in a shopping center owned by a limited partnership which is predominantly owned by appellee Sigma Development. In September 1992, appellant Stephens fell on a rain-wetted handicap access ramp after leaving Ernie’s Steakhouse. Prior to dining in the restaurant, she waited about 40 minutes outside the restaurant in reasonable proximity to the handicap ramp. It rained while she waited outside and it rained while she was inside the restaurant. When she left the restaurant she was aware that it had been raining and she was aware of the wet painted surface of the ramp; however, the ramp had no standing water on it, it appeared to have “texture” and it did not appear dangerous. She slipped and fell, apparently because of the slick painted surface of the ramp. She presented evidence that employees of Ernie’s Steakhouse had the ramp painted in the spring of 1992, and had selected and applied the paint on the ramp. The paint chosen by Ernie’s employees was BEHR PLUS 10 Siliconized Acrylic Concrete Stain. According to the affidavit of appellant’s expert in concrete and masonry mediums, BEHR’S PLUS 10 Siliconized Acrylic Concrete Stain is well known to him; it is compounded with 100 percent acrylic resins and, as its name indicates, it is “siliconized”; it is labeled “water repellant” and when applied to raw concrete it forms a nonporous and virtually waterproof surface; it will become slick and slippery when moist because of a “filming effect of the moisture upon the essentially non-porous surface”; and it “is not suited for use where a non-skid surface is required unless fine sand or some other suitable texture material is first added to the compound.” The manager of Ernie’s Steakhouse affied that the ramp was painted “so that it would stand out from the surrounding sidewalk”; the restaurant had received no complaints about the condition of the ramp; its employees visually inspected the ramp daily and had no knowledge that the ramp was in a dangerous or slippery condition; and no employee was near the ramp on the night of appellant’s fall. Held:

1. As to Case No. A94A2529, Ernie’s Steakhouse contends that because it had no superior knowledge of a defective or dangerous condition, it cannot be liable. See Walker, Dade &c. Hosp. Auth. v. Clark, 209 Ga. App. 52, 53 (432 SE2d 647), where we reversed the denial of summary judgment to defendants, holding that the hazardous condition was open and obvious, plaintiff had equal knowledge of it and could have discovered it in the exercise of ordinary care. See also Rose v. Kennesaw House, 203 Ga. App. 648, 649 (417 SE2d 379), where the plaintiff had at other times safely traversed a ramp in rainy weather and her knowledge of the inadequacies of the ramp handrail and surface was equal to that of the proprietor.

In this case, the evidence, construed in plaintiff’s favor (King v. Crain-Daly Volkswagen, 207 Ga. App. 583, 584 (428 SE2d 586)), shows plaintiff walked down the handicap access ramp believing it to be safe in the wet condition but, unknown to her and undiscoverable by visual inspection, the ramp was inherently dangerous in wet conditions because of its siliconized surface. The evidence, construed in plaintiff’s favor, shows that even leaving aside the question of the proprietor’s negligence in choosing this paint to coat this handicap ramp, the dangerous properties of this siliconized paint in wet conditions were known to Ernie’s Steakhouse employees, or should have been known to them because of the labeling on the paint can. Since Ernie’s Steakhouse employees did not discover the dangerous condition on the ramp surface despite their daily visual inspections (including, presumably, visual inspections made in wet weather), we cannot say that as a matter of law the plaintiff in this case should have discovered what Ernie’s Steakhouse employees could not. Further, a jury may find that Ernie’s Steakhouse employees were negligent in choosing a paint for a handicap ramp which they knew or should have known causes an invisible but especially perilous condition in wet weather, and they would be held to have superior actual or constructive knowledge of the ramp’s hazardous condition.

As there is specific evidence from which Ernie’s Steakhouse may be deemed to have superior knowledge of the dangerous siliconized properties of the paint chosen by its employees for this handicap ramp, this case is distinguished from Walker, Dade &c. Hosp. Auth., supra at 52, where the plaintiff “presented no evidence of superior knowledge [of the proprietor] of a dangerous or defective condition.” In Rose, supra, the evidence showed the plaintiff had equal knowledge of the defective condition. This case is more akin to Barlow v. Brant, 206 Ga. App. 313, 314 (425 SE2d 309), where the sidewalk was “finished improperly for use by pedestrians in that it was given a smooth finish which becomes slippery when wet instead of a brush finish which would have provided traction for pedestrian use.” Id. at 313. See also Caven v. Warehouse Home Furnishings Distrib., 209 Ga. App. 706, 707 (434 SE2d 532).

We have held time and again that a proprietor is not an insurer of an invitee’s safety, the invitee must use ordinary care for his own safety, and to recover damages for negligence the plaintiff must show the proprietor’s superior knowledge of the defect. The “superior knowledge” principle is invoked as mantra by proprietors, but the “superior knowledge” principle does not remove the proprietor’s “ ‘duty to inspect [his] premises to discover possible dangerous conditions . . . and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises.’ ” Barlow, supra at 315. The proprietor has the duty to take reasonable precautions to make its premises safe, but the invitee also has a duty to exercise ordinary care for his own safety, so, where the proprietor fails to exercise reasonable care to make the premises safe, nevertheless if the invitee by exercising ordinary care could have discovered and avoided the dangerous condition, his knowledge of the danger is deemed equal to the proprietor’s knowledge. The determining factor in most cases is, therefore, whether in the exercise of ordinary care the plaintiff could have discovered a dangerous condition, including one created by the proprietor. See generally Alteman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327). As in Barlow, supra at 314, “reasonable minds could differ concerning whether it was apparent from looking at the [ramp] that it was given a finish that was too slick for pedestrian use” in wet conditions. The jury may find the paint used for this handicap ramp, as in Barlow, created a particular peril in wet conditions, and that plaintiff could not discover this peril from the mere fact that the surface was slick with water from the rain. For this reason, summary judgment to Ernie’s Steakhouse was error.

2. As to appellee Sigma Development (Case No. A94A2625), the lease between Ernie’s Steakhouse and the limited partnership of which Sigma owns 93 percent provides: “[All] pedestrian sidewalks and ramps . . . provided by landlord for general use in common, or tenants of the shopping center, their [agents] and customers shall at all times be subject to the exclusive control and management of landlord . . . and landlord shall have the right from time to time to establish, modify and enforce reasonable rules and regulations [as to such common areas, including the right to construct, maintain, operate, improve, police, inspect, change, and restrict] and to do and perform such other acts in and to said areas and improvements as, in the use of good business judgment, the landlord shall determine to be advisable with a view to the improvement of the convenience and use thereof by tenants of the shopping center, their [agents] and customers; provided that no such changes shall deny or materially interfere with reasonable visibility of, ingress to or egress from the premises.”

Decided November 9, 1994.

Lawson & Daniel, John W. Lawson, for appellant.

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., T. Andrew Graham, Lokey & Bowden, Peter K. Kintz, Jon W. Burton, for appellees.

This provision gives the landlord the right to control traffic and parking facilities of the shopping center as they relate to the convenience and use of the entire shopping center for all tenants and customers. Its terms do not impose a duty on the landlord to inspect the tenant’s maintenance of sidewalks and ramps serving its establishment for safety purposes. “Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.” (Emphasis supplied.) OCGA § 44-7-14. The landlord (owned by Sigma) is not responsible for the negligent use of the premises by Ernie’s Steakhouse, and the fact that the landlord retains exclusive control of the common areas of the shopping center for convenience purposes did not impose on it the duty to inspect the tenant’s maintenance of the ramp. It is undisputed that the landlord had no notice of a defective condition, and no duty to inspect or maintain the ramp is shown. Compare Barlow, supra at 314. The summary judgment to Sigma was correct.

Judgment affirmed in Case No. A94A2625 and reversed in Case No. A94A2529.

Blackburn and Ruffin, JJ., concur.