text:
    A92A1457.
    GUZMAN v. THE STATE.
    (424 SE2d 849)
   Sognier, Chief Judge.

Annie Ortiz Guzman was charged with attempted possession of cocaine as a result of a reverse sting operation conducted by the Richmond County Sheriff’s Department. She was convicted by a jury, and she appeals from the judgment of conviction and sentence entered by the trial court.

On the night of March 22, 1991, Sheriff’s Investigator Larry Tarver was posing as a drug dealer on an Augusta street known as a center of drug activity. He was equipped with a body microphone and pieces of wax modelled into chunks resembling crack cocaine. Investigator Allen Rollins was videotaping Tarver’s activities from a surveillance vehicle parked nearby. After Tarver completed his transactions, other officers posted nearby would stop and arrest the perpetrators several blocks away.

Tarver’s testimony and Rollins’ videotape established that appellant drove by Tarver in a station wagon with her children in the back seat, circled the block, and returned to Tarver. She asked whether he had seen a man named Jerome, and when he responded negatively, she asked if she could “get half a slab for fifty.” (The deputies explained that “slab” is a street term for a large piece of crack cocaine usually sold for about $50 to $100.) Tarver replied that he only had small pieces for sale and handed one piece to appellant. She placed it to her lips (which Tarver explained was a common practice used by drug purchasers to test the product because cocaine will deaden nerve endings), shook her head, returned the piece to Tarver, and drove away. She was arrested by the backup officers a few blocks away.

Appellant testified that earlier in the day a man had snatched a bracelet from her wrist as she stood in line at a local health center. Another woman standing in the same line identified the thief as a local drug dealer named Jerome and suggested to appellant that she drive around a certain neighborhood that night and pretend to be seeking drugs in an effort to find Jerome. Appellant, who had no prior criminal record, testified that she had no money with her and did not intend to buy any drugs. Tarver testified that he neglected to follow the standard procedure for the undercover operation of asking to see appellant’s money before he showed her the fake cocaine, and the arresting officer confirmed that appellant had no money on her person or in her car when the arrest was made.

1. Appellant contends in two enumerations that the trial court erred in ruling on her argument that the deputies had acted unlawfully. The court granted the State’s motion in limine to preclude appellant from arguing or presenting evidence that the deputies had acted unlawfully under either OCGA §§ 16-13-30 (i) or 16-13-30.2 (a) by distributing or possessing with intent to distribute a counterfeit or imitation controlled substance. The court also refused to charge the jury on the elements of such offenses.

We find no error. It appears from the record that the wax pieces used in the reverse sting operation fell within the definition of an “imitation controlled substance” (OCGA § 16-13-21 (12.1)) rather than a “counterfeit substance” (OCGA § 16-13-21 (6)). However, the deputies did not engage in conduct prohibited by OCGA § 16-13-30.2 (a) because they possessed the wax pieces for the purpose of identifying and arresting drug buyers, not with the intention to distribute the substance as cocaine.

2. Appellant also enumerates as error the trial court’s denial of her motion for directed verdict of acquittal. “The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. [Cit.] [That is, we must consider whether the] evidence set forth above was sufficient to authorize a rational trier of fact to find appellant guilty of [attempted possession of cocaine] beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); [cits.].” Garrett v. State, 184 Ga. App. 715, 716 (3) (362 SE2d 423) (1987).

Appellant contends she was entrapped by the illegal acts of the deputies. “ ‘Entrapment exists where the idea and the intention to commit the act originate with a police officer, who, by undue persuasion and deceitful means, induces the defendant to violate the law. But there is no entrapment where the officer merely furnishes an opportunity to a defendant who is ready to commit the offense.’ [Cit.]” Orkin v. State, 236 Ga. 176, 195 (223 SE2d 61) (1976). Given our holding in Division 1 concerning the legality of the deputies’ possession of the wax pieces, we find no merit in appellant’s argument that they entrapped her by acting unlawfully and deceitfully. Moreover, by her own admission, appellant approached Tarver and inquired about a drug purchase. “It does not constitute entrapment where a defendant approaches a police officer with an offer to commit a crime, if that officer then plays a role in order to provide the defendant with an opportunity to commit the intended offense. [Cit.]” Id. Accordingly, a finding of entrapment was not demanded as a matter of law. See id. at 195-196 (8).

“ ‘An attempt to commit a crime consists of three elements: first, the intent to commit the crime; second, the performance of some overt act towards the commission of the crime . . .; and third, a failure to consummate its commission.’ [Cit.]” Howell v. State, 157 Ga. App. 451, 454 (4) (278 SE2d 43) (1981). The overt act must be one that would be proximately connected with the completed crime, and “there must be an apparent possibility to commit the crime in the manner proposed.” Fears v. State, 152 Ga. App. 817, 821 (264 SE2d 284) (1979). Impossibility of commission of the underlying crime a defendant is charged with attempting is not a defense to the charge of attempt “if such crime could have been committed had the attendant circumstances been as the accused believed them to be.” OCGA § 16-4-4; see Howell, supra at 456.

The fact that Tarver offered only imitation cocaine to appellant does not relieve appellant of culpability for attempting to possess cocaine because there is no evidence she was aware the substance was not cocaine. See OCGA § 16-4-4; see also Howell, supra at 454-456 (4). However, we are constrained to hold that appellant’s actual inability to complete the drug purchase because she had no money with her does fall within the definition of impossibility set forth in OCGA § 16-4-4. The “attendant circumstances” that precluded completion of the offense of cocaine possession were as appellant “believed them to be,” id. — that is, the evidence unequivocally establishes that appellant had no cash on her person or in her car when she asked Tarver about a cocaine purchase and examined the piece he offered her. Since Tarver testified that he was posing as a drug dealer and selling imitation cocaine for money to persons who were then arrested by his colleagues, there is no indication he would have given the substance to appellant without receiving money from her in return or that she expected or requested him to do so. Indeed, he acknowledged that he gave her the sample to test only after neglecting to follow his established procedure of asking to see the money first. Appellant knew she could not complete the act of possessing cocaine by buying it from a dealer, which was the manner of commission the State alleged, and thus there was no overt act done with “apparent possibility to commit the crime in the manner proposed.” Fears, supra. Compare Howell, supra; Riddle v. State, 145 Ga. App. 328, 333 (2) (243 SE2d 607) (1978), overruled in part on other grounds, Adsitt v. State, 248 Ga. 237, 240 (6) (282 SE2d 305) (1981) (impossibility not a defense when battery was avoided only because victim was able to get away).

“[W]hen there is no conflict in the evidence and it clearly demands a verdict of acquittal as a matter of law there is a duty upon the trial judge to grant a motion for a directed verdict of acquittal and his failure to do so will constitute reversible error on appeal.” Merino v. State, 230 Ga. 604, 605 (198 SE2d 311) (1973). Having found that impossibility is a complete defense to the charged crime, we must hold the trial court erred by denying appellant’s motion for directed verdict of acquittal because the evidence did not meet the standard set forth in Jackson v. Virginia, supra.

Judgment reversed. Cooper, J., concurs.

McMurray, P. J., concurs in judgment only.

Decided November 4, 1992.

Sam B. Sibley, Jr., for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Daniel W. Hamilton, Assistant District Attorneys, for appellee.


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A92A1575.
    JORDAN v. THE STATE.
    (424 SE2d 852)
   Sognier, Chief Judge.

Curtis Jordan was convicted in a bifurcated trial of aggravated assault and possession of a firearm by a convicted felon. He appeals from the denial of his motion for new trial.

1. Appellant contends the evidence was insufficient to support the verdict as a matter of law. The testimony presented at trial by several eyewitnesses established that on the night of June 1, 1990, appellant and Kenny Lewis went in appellant’s Chevrolet Blazer to the “Bottom,” a commercial area in downtown Soperton where several bars were located and where patrons often congregated outside the establishments. Appellant and John Leon Strong began arguing, and Strong beat appellant. Lewis testified that when he tried to break up the fight, Strong’s friend Henry' Lee Cummings stopped him. Soperton Police Officer Kemp, who was patrolling the area on foot, separated the two men and arrested Strong, whom he booked and released.

Appellant and Lewis left the Bottom, went to appellant’s home, and then returned to the Bottom about 30 minutes later. Lewis testified that as appellant drove past Strong’s parked truck, Strong called out to appellant “oh, you’ve come back for some more.” Lewis stated that appellant stopped, got out of the Blazer, and fired one shot, hitting Strong in the head. When appellant jumped back into the Blazer and drove away, Lewis saw a revolver in his hand. Lewis testified that when a police patrol car began chasing them a few blocks later, appellant threw the gun out his window and then stopped the Blazer a half block away.

Lewis, bystander Tom Polk, and Cummings, who was seated in the passenger seat of Strong’s truck when Strong was shot, recalled hearing only one gunshot. Officer Kemp also testified that he ran to the scene when he heard a single shot. Polk and Kemp both testified that they looked into Strong’s truck and saw no weapon, and Cummings also stated he did not see Strong with a weapon when the shooting occurred. Strong’s brother testified that as a result of the shooting Strong is totally disabled, cannot walk or talk, and does not recall the shooting.

Evidence adduced during the trial of the weapons charge established that a deputy sheriff who searched the area where appellant was stopped after the shooting found a .38 caliber Smith & Wesson revolver in a ditch. Lewis testified that the revolver police retrieved looked similar to the one he saw in appellant’s hand after he shot Strong. A certified copy of appellant’s prior felony conviction in Florida was admitted into evidence.

We find this evidence satisfies the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) and was sufficient to authorize the jury to conclude beyond a reasonable doubt that appellant did not act in self-defense and was guilty of the charged crimes. See Powell v. State, 201 Ga. App. 188 (1) (410 SE2d 378) (1991); Murray v. State, 180 Ga. App. 493-494, 495 (4) (349 SE2d 490) (1986). Although no witness testified with absolute certainty that appellant had been in possession of the revolver introduced into evidence, the conviction for firearm possession was authorized because the testimony from eyewitnesses who saw appellant with a gun constituted direct evidence of possession of a firearm.

2. Appellant contends the trial court failed to adhere to the procedure set forth in McKaskle v. Wiggins, 465 U. S. 168, 177-179 (104 SC 944, 79 LE2d 122) (1984) concerning limitations on the role of standby counsel once a defendant decides to represent himself. Our review of the transcript persuades us that McKaskle is not applicable because appellant waived his right to represent himself. See id. at 182-183. Rather than unequivocally asserting his right of self-representation, appellant repeatedly stated that he did wish to have counsel, and he solicited and acquiesced in standby counsel’s assistance on several occasions. Indeed, appellant’s only objection to the court’s appointment of the public defender to represent him was that he believed the court had not given the public defender ample time to prepare the case. Nonetheless, even if we construe appellant’s statements midway through the trial as an expression of his intention to represent himself, the trial court did follow the requirements of McKaskle by explaining to the jury that appellant was representing himself and that the public defender was remaining in the courtroom to assist the court; by continuing to ask appellant whether he wished to question witnesses or present arguments; and by permitting appellant to present objections and closing argument. See id. at 178-179.

3. Appellant contends he was denied effective assistance of counsel because the public defender appointed to represent him was not given a sufficient continuance. On the morning of the trial, appellant informed the court that he had released his retained counsel and had been unable to procure a replacement. The court then appointed the public defender to represent appellant. After the jury was selected, appellant requested a continuance for the public defender to prepare for trial, and the court granted a recess of two-and-one-half days. When the trial reconvened, appellant repeatedly interrupted the proceedings to complain that his counsel had not been given adequate time to prepare. In response, the public defender detailed for the court the preparation he had undergone for the trial, which included reviewing the State’s complete file, discussing the case with appellant and Lewis, researching applicable law, and subpoenaing witnesses.

Decided November 4, 1992.

To establish that counsel’s representation was constitutionally insufficient, appellant must show 1) counsel’s performance was deficient; and 2) counsel’s errors prejudiced the defense — i.e., that they were so serious as to deprive the defendant of a fair trial. Davenport v. State, 172 Ga. App. 848, 851-852 (325 SE2d 173) (1984). We find that neither element has been shown in this case. Appellant has not identified any errors in the public defender’s conduct of the trial, and our review of the record has not disclosed any evidence of constitutionally inadequate performance. Since the State allowed appellant’s counsel to review the entire prosecution file, counsel was able to read the witness statements of all witnesses in the State’s file, and the transcript demonstrates that at trial he cross-examined them thoroughly. Given the preparation counsel outlined, and considering that this case was relatively uncomplicated, the trial of both charges having been completed in one day, we do not find that the continuance granted was so inadequate as to preclude counsel from preparing sufficiently for trial. Compare Johnson v. State, 185 Ga. App. 475 (364 SE2d 609) (1988) with Williams v. State, 144 Ga. App. 410 (1) (241 SE2d 261) (1977).

Moreover, appellant has not shown prejudice. The only thing he contends counsel was unable to do was to obtain his Blazer from the bank that had repossessed it. Appellant maintains the vehicle was essential to his defense of self-defense, apparently because he believes the Blazer has holes from bullets fired at him by Strong. However, the testimony of the numerous witnesses completely contradicts this theory of the evidence. Additionally, appellant could have cross-examined any of the eyewitnesses on this point, but he did not do so. Accordingly, the trial court did not err by rejecting appellant’s claim of ineffective assistance of counsel.

4. The record is devoid of support for appellant’s characterization of the events upon which his third enumeration of error is based, and accordingly that enumeration is without merit.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.

Harold D. McLendon, for appellant.

Ralph M. Walke, District Attorney, for appellee.


text:
    A92A1630.
    POWELL v. WOODRIDGE CONDOMINIUM ASSOCIATION, INC.
    (424 SE2d 855)
   Sognier, Chief Judge.

Marsha Powell brought suit against Woodridge Condominium Association, Inc. seeking damages for injuries incurred when she slipped and fell on a stair on common property owned by the association. The trial court granted summary judgment to the association, and Powell appeals.

The record establishes that appellant leased a unit at Woodridge and moved there eight weeks before the incident in issue. Appellant stated in her deposition that because there was no assigned parking at that time, she parked her car in the upper lot behind her unit. A set of stairs made of railroad ties connected her unit with the upper parking lot. Appellant stated that she traversed the stairs twice a day every work day for eight weeks. She deposed that she was aware there was no handrail and that the stairs were “[y]our typical weathered railroad tie [steps].” She acknowledged that prior to her fall she considered the steps to be unsafe and knew that they were “splintered, cracked, [and] uneven,” but that she did not report the alleged dangerous condition to appellee. It. is uncontroverted that appellee had not been notified by anyone else that the railroad tie steps were hazardous. Appellant deposed that on the day of her fall, the stairs were dry, the lighting was adequate, and there were no distractions. She was descending the stairs with her usual caution when her left heel caught in a crack in one of the ties and she fell, dislocating her elbow and fracturing a bone in her wrist. Appellant deposed that although she continued to park in the upper lot after her fall until she was assigned a parking space elsewhere, she did not use the stairs again but instead would travel between her unit and the upper parking lot via the adjacent street. In her affidavit filed in response to appellee’s motion for summary judgment, appellant averred that prior to her fall she had “no knowledge or appreciation of the danger that the heel of my shoe would sink into a crack in one of the railroad crosstie steps.”

“The decisive issues are: ‘(1) fault on the part of (appellee), and (2) ignorance of the danger on the part of the (appellant). (Cit.)’ [Cit.]” Shackelford v. DeKalb Farmer’s Market, 180 Ga. App. 348, 349 (1) (349 SE2d 241) (1986). We need not discuss the first issue because we agree with appellee that the second issue is dispositive of this appeal.

Where the case involves a static dangerous condition, the rule is well established that “the basis of the proprietor’s liability is his superior knowledge and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.” (Citations and punctuation omitted.) O’Brien v. Fairfield Communities, 204 Ga. App. 543, 544 (1) (421 SE2d 723) (1992). Appellant’s testimony that she knew prior to her fall that the weathered railroad ties with their splinters and cracks were unsafe established that her knowledge was equal to appellee’s. We do not agree with appellant that a question of fact for the jury was created by her averral that she did not know that when wearing shoes with heels she could step into one of the cracks and fall. While “it is a plaintiff’s knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely [her] knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which [she] observes and avoids,” Telligman v. Monumental Properties, 161 Ga. App. 13, 16 (288 SE2d 846) (1982), that principle is not applicable here because the evidence reflected appellant’s knowledge of both the general unsafe nature of the railroad tie steps and the specific hazard created by the steps, i.e., their splintered, cracked, and uneven state. Compare id. at 14-17 (2) (plaintiff’s knowledge that general icy weather conditions existed did not constitute knowledge of presence of the specific icy patch on which she fell); Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139 (351 SE2d 477) (1986) (plaintiff’s knowledge of the general danger posed by a pile of construction debris did not constitute knowledge of the hidden danger posed by a sharp object contained in that debris which caused her injury).

While we have recognized that “knowledge of the defect” does not necessarily equal “knowledge of the danger,” see generally Robinson v. Western International Hotels Co., 170 Ga. App. 812, 814-815 (318 SE2d 235) (1984), “[t]he crucial question is whether [appellant] should have had a full appreciation of the danger, and in the exercise of ordinary care she should have avoided the injury to herself. . . . [Cits.]” (Punctuation and emphasis omitted.) Food Giant v. Witherspoon, 183 Ga. App. 465, 469 (359 SE2d 223) (1987). Given the absence of any factors that either interfered with appellant’s appreciation of the danger posed by the cracked railroad tie steps (e.g., poor lighting, compare id., or weather conditions, compare Shackelford, supra) or distracted her from exercising due care for her own safety (e.g., traffic, compare Globe Oil Co., USA v. DeLong, 182 Ga. App. 395, 396-397 (1) (356 SE2d 47) (1987)), even when construed most favorably to appellant, the evidence demonstrates that appellee was not liable to appellant because she had equal knowledge of the specific hazardous condition presented by the cracked railroad tie steps. See generally Pierce v. Fieldale Corp., 194 Ga. App. 303 (390 SE2d 298) (1990); Pound v. Augusta National, 158 Ga. App. 166 (279 SE2d 342) (1981).

Decided November 4, 1992.

Siler & Associates, William A. Dinges, for appellant.

Lokey & Bowden, Kevin S. Graham, for appellee.

We do not agree with appellant that a different result is demanded by the cases she cites, e.g., Grier v. Jeffco Mgmt. Co., 176 Ga. App. 158 (335 SE2d 408) (1985), which involve situations where the lack of an alternative to the dangerous route offset the plaintiff’s knowledge of the danger. Those cases are not applicable here because appellant’s testimony revealed there was another route she could have taken to her unit (of which she availed herself after the fall) and established that the route she chose was not one of necessity, but of convenience. See Lindsey v. Housing Auth. of Atlanta, 181 Ga. App. 814 (354 SE2d 13) (1987). Appellant’s arguments regarding the applicability of Thompson v. Crownover, 259 Ga. 126 (381 SE2d 283) (1989) are controlled adversely to her by Hall v. Thompson, 193 Ga. App. 574, 575 (1) (388 SE2d 381) (1989).

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A92A1152.
    JORDAN v. LAMBERTH, BONAPFEL, CIFELLI, WILLSON & STOKES, P.A.
    (424 SE2d 859)
   Birdsong, Presiding Judge.

After Lamberth, Bonapfel, Cifelli, Willson & Stokes, P.A. sued Hilliard Rhodes Jordan, Jr., for breach of an agreement to pay legal fees and expenses, Jordan filed a counterclaim contending that Lam-berth, Bonapfel failed to resolve certain of Jordan’s tax liabilities and seeking compensatory and punitive damages. Thereafter Lamberth, Bonapfel moved for summary judgment on its claim against Jordan and moved to dismiss his counterclaim because he did not support the counterclaim with an affidavit as required by OCGA § 9-11-9.1. Lamberth, Bonapfel supported its motion for summary judgment with an affidavit from a member of the firm that set out the terms of the agreement with Jordan and Jordan’s failure to make the payments required by the agreement. Lamberth, Bonapfel’s motion to dismiss the counterclaim asserted that as the counterclaim alleged a claim of professional negligence, Jordan’s counterclaim should be dismissed because he did not comply with OCGA § 9-11-9.1. Jordan did not respond to the motion for summary judgment and to dismiss his counterclaim, and thereafter, the trial court granted Lamberth, Bonapfel’s motion. Jordan now appeals contending that OCGA § 9-11-9.1 did not apply to his counterclaim and that the trial court erred by granting summary judgment. Held:

1. Jordan asserts that OCGA § 9-11-9.1 (a) applies to “any action for damages alleging professional malpractice” and not to counterclaims, that his counterclaim was not a professional malpractice action, and that in actions between professionals over an area in which they possess expertise, no affidavit under OCGA § 9-11-9.1 is required. Consequently, he argues that the trial court erred by applying OCGA § 9-11-9.1 to this action.

(a) “OCGA § 9-11-9.1 [applies] to the assertion of a counterclaim by a defendant. OCGA § 9-11-9.1 (a) states that ‘[i]n any action for damages alleging professional malpractice,’ the plaintiff must file an expert’s affidavit with the complaint. In Housing Auth. of Savannah v. Greene, 259 Ga. 435, 437 (2) (383 SE2d 867) (1989), the Georgia Supreme Court stated that ‘(u)nder the Civil Practice Act, an “action” is defined as meaning “the judicial means of enforcing a right” (cit.),’ and held that third-party complaints come within the scope of that definition. Therefore, the Greene court held OCGA § 9-11-9.1 to be applicable to third-party complaints. Counterclaims, as well, are encompassed by the quoted definition of an ‘action’ and are similarly subject to the affidavit requirement. Further, in McLendon & Cox v. Roberts, 197 Ga. App. 478, 479 (398 SE2d 579) (1990), we acknowledged that OCGA § 9-11-9.1 ‘extends to any litigant who alleges harm as a result of the defendant professional’s negligent performance of professional services. (Cit.)’ ” Hardman v. Knight, 203 Ga. App. 519, 520 (417 SE2d 338). Therefore, Jordan’s assertion that OCGA § 9-11-9.1 does npt apply to counterclaims is without merit.

(b) Jordan’s second assertion is that his counterclaim does not allege a professional malpractice action. Review of Jordan’s answer and counterclaim shows he claimed that resolution of Jordan’s tax return “situation” for two years was to be part of the services to be rendered by Lamberth, Bonapfel; that Lamberth, Bonapfel did not resolve the tax situation; and that as a result of Lamberth, Bonapfel’s failure, Jordan suffered certain damages which he sought to recover in his counterclaim. As this counterclaim alleges that Lamberth, Bonapfel, pursuant to its agreement with Jordan, had a duty to perform professional services for him which Lamberth, Bonapfel breached and Jordan was injured thereby, the counterclaim asserts a claim of professional negligence. Hardman v. Knight, supra. Moreover, “OCGA § 9-11-9.1 ‘applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.’ ” Housing Auth. of Savannah v. Greene, supra at 436. Therefore, the trial court did not err by applying the requirements of OCGA § 9-11-9.1 to Jordan’s counterclaim.

Decided November 5, 1992.

Jordan & Jordan, Hill R. Jordan, pro se.

Lamberth, Bonapfel, Cifelli, Willson & Stokes, Stuart F. Clayton, Jr., for appellee.

(c) Jordan asserts that OCGA § 9-11-9.1 should not be applied to this action because the parties are professional with expertise in the matter before the court. This argument ignores the basis for the affidavit requirement of OCGA § 9-11-9.1, which is “ ‘to reduce the number of frivolous malpractice suits being filed,’ 0-1 Doctors [Mem. Holding Co. v. Moore, 190 Ga. App. [286,] 288 [(378 SE2d 708)].” Gadd v. Wilson & Co., 262 Ga. 234, 235 (416 SE2d 285). Because the parties’ knowledge of the subject matter would do nothing to evaluate the merits of an action they were determined to bring, this argument is also without merit. Moreover, since the OCGA § 9-11-9.1 affidavit was required by the General Assembly in cases alleging professional negligence, the trial court had no authority to create an exception when an affidavit was otherwise required.

2. Jordan asserts that the trial court erred by granting summary judgment on Lamberth, Bonapfel’s claim against him because it contained claims of negligence or omission which are particularly within the province of the jury. This argument is patently without merit. This complaint asserted a claim of -breach of contract. The affidavit attached to the motion for summary judgment, which was unrebutted, established the terms of the agreement, Jordan’s breach, and consequently Lamberth, Bonapfel’s right to recover against Jordan. Hyman v. Horwitz, 148 Ga. App. 647, 648-649 (252 SE2d 74). Under the circumstances, this was sufficient to satisfy the requirements of OCGA § 9-11-56, and the trial court did not err by granting the motion for summary judgment.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A1295.
    WAGNER v. THE STATE.
    (424 SE2d 861)
   Birdsong, Presiding Judge.

Julius Wagner appeals his conviction for obstruction of an officer. He contends the evidence is insufficient because there was no evidence that the officer was acting “in the lawful discharge of his official duties.” OCGA § 16-10-24 (b).

The indictment charged appellant with obstruction “by physically resisting a lawful arrest.” The State’s evidence shows that Officer Roach went in a Shoney’s restaurant in answer to a call. He spoke with an employee and then approached appellant, who was sitting at a table, and asked him to come outside. Appellant was eating; the officer asked him a second time to come out. Appellant finished swallowing his tea and got up and walked outside. Thirty to forty seconds elapsed from the time the officer approached him until he went outside; he had given the officer no trouble. In the parking lot, the officer asked appellant his name. With an expletive, appellant refused. The officer said, “Sir, just tell me your name.” Appellant’s response was the same. Although the officer saw no weapons, he asked appellant to put his hands on the top of the patrol car. Appellant complied. The officer patted him down but found no weapons, then opened the car door and asked appellant to get in. At this point appellant “got violent,” and a struggle ensued. The officer testified appellant was under arrest for “disorderly conduct” when he asked him to get in the police car.

The only other witness was a patron in the restaurant. Appellant was sitting ten or twelve feet from him. A couple sitting behind appellant moved to another table. Appellant walked toward the salad bar and told the waitress not to clean the table off, that he would be right back. He went outside and leaned into a car and came back in and sat down and continued eating; then the officer came in and talked to the hostess; then he approached appellant and asked if he would mind stepping outside. Nothing unusual occurred inside the restaurant between appellant and the officer. Once they got outside, they appeared to be talking civilly at first; then there was a heated exchange and appellant began shoving the officer.

After appellant was taken to jail, he told the officer “that he had been drinking vodka that day.” But,, there is no evidence anybody thought appellant was drunk or that such was the reason he was removed from the restaurant. The officer had no warrant for his arrest. During deliberation the jury asked the court why the officer came to the restaurant, but the court told the jury it could not help them. Later the jury asked the definition of lawful arrest and asked whether a person could be arrested without being told he was under arrest. Held:

There is no evidence of any disorderly conduct prior to the arrest for disorderly conduct. The State contends that the fact that an officer was called to a place and spoke to a complainant proves he was in the lawful discharge of his official duties. The State’s position is that no reason need be given for police action in an obstruction prosecution, and no evidence of criminal activity and no proof of lawful police purpose are required before a citizen may be accosted and searched for weapons and his name demanded; and moreover, that he has no right to resist. This is not the law. “If the . . . arrest was legal he had no right whatever to resist it; if it was illegal, he had the right to resist with all force necessary for that purpose.” Smith v. State, 84 Ga. App. 79, 81 (65 SE2d 709).

The jury was puzzled as to why the officer accosted appellant; as no explanation was forthcoming, they had to assume the State did not have to give one. This was wrong. In these cases it is essential that the State prove beyond a reasonable doubt that the obstruction was knowing and wilful, and that it occurred while the officer was “in the lawful discharge of his official duties.” OCGA § 16-10-24 (b). See Hall v. State, 201 Ga. App. 328 (411 SE2d 274); Powell v. State, 192 Ga. App. 688 (3) (385 SE2d 772); Kight v. State, 181 Ga. App. 874 (1) (354 SE2d 202); Carr v. State, 176 Ga. App. 113 (1) (335 SE2d 622). “[A] police officer is not discharging his lawful duty when he arrests an individual without reasonable or probable cause.” Brown v. State, 163 Ga. App. 209, 212 (294 SE2d 305). If there is probable cause to believe a person committed a crime, if a crime is committed in the officer’s presence, or within his knowledge, or if there is a likely failure of justice, an arrest without a warrant is authorized; otherwise not. OCGA § 17-4-1; Pate v. State, 137 Ga. App. 677 (225 SE2d 95); Smith, supra at 82; see Vaughn v. State, 197 Ga. App. 561 (398 SE2d 836); Singleton v. State, 194 Ga. App. 423 (390 SE2d 648); Banks v. State, 187 Ga. App. 280, 282 (370 SE2d 38). As the only evidence of antisocial conduct by appellant prior to arrest is his refusal to give his name, the jury had to conclude this was why he was arrested. But a mere refusal to identify oneself to a police officer is not a crime. We have held a refusal to identify oneself was obstruction where the officer personally observed defendant driving in a reckless manner (Bailey v. State, 190 Ga. App. 683 (379 SE2d 816)), and where defendant was sought for arrest under a warrant. Hudson v. State, 135 Ga. App. 739, 742 (218 SE2d 905). A person might commit obstruction where he knowingly and wilfully hinders an officer in investigating an offense committed by another. But there is no evidence appellant had committed an offense in this case or was hindering an investigation of an offense; therefore, his refusal to give his name could not have amounted to obstruction in the facts of this case. We note that appellant was not charged with obstruction by refusing to give his name to the police officer.

Whether a defendant impeded an officer in carrying out his lawful duties (see Logan v. State, 136 Ga. App. 567, 568 (222 SE2d 124)) is usually a jury question, except where there is no conflict in the evidence and all reasonable deductions and inferences therefrom demand a verdict of acquittal. OCGA § 17-9-1; Carr, supra at 114. The mere fact that someone calls the police is not probable cause. There was no evidence that appellant was unruly or threatened to breach the peace (see Carr, supra at 114-115) or even that the officer thought he was drunk. His sole offense was to refuse to give his name. This was not probable cause for arrest; therefore, the arrest was not lawful and appellant’s physical resistance to arrest, which was the alleged obstruction, did not hinder the officer in the lawful discharge of his official duties. See Brown, supra. A verdict of acquittal was demanded under the evidence made out by the State.

Decided November 5, 1992.

James P. Brown, Jr., for appellant.

Judgment reversed.

Andrews, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the reversal because there is no evidence that a lawful arrest was in progress when the defendant resisted the officer. He was charged in the indictment with committing the felony of obstruction, OCGA § 16-10-24 (b), by “physically resisting a lawful arrest.”

Although it was within the officer’s duties to investigate a citizen complaint, of which there is evidence, there appears no basis for the escalation of that investigation to an arrest of defendant outside of his responsive resistance to that arrest. No evidence supplied the answer to the question, “What was he being arrested for?”

It is a misdemeanor to give a false name to an officer who is lawfully discharging his official duties, OCGA § 16-10-25, but Wagner had refused to give any name. See United States v. Brown, 731 F2d 1491 (11th Cir. 1984), modified on other grounds, 743 F2d 1505 (1984).

There is no evidence that Wagner was being arrested for the misdemeanor of knowingly and wilfully obstructing or hindering the officer in his investigation of the complaint, by refusing to give his name, if this was the State’s theory. See OCGA § 16-10-24 (a). In fact, the officer testified that defendant was under arrest for disorderly conduct at the time he asked defendant to sit in the back seat of the patrol car. The only evidence approaching disorderly conduct up to that point was the use of an expletive and refusal to give his name. If he was charged with such, it was not pursued. Defendant’s oral response does not constitute disorderly conduct. See Cunningham v. State, 260 Ga. 827 (400 SE2d 916) (1991); Hess v. Indiana, 414 U. S. 105 (94 SC 326, 38 LE2d 303) (1973).

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.


author: Johnson, Judge.

text:
    A92A1533.
    SMITH v. THE STATE.
    (424 SE2d 864)
   Johnson, Judge.

Hosea Smith was tried and convicted of rape. He appeals.

1. Smith contends that the trial court erred in refusing to allow evidence regarding the victim’s alleged past sexual behavior.

OCGA § 24-2-3 (b) provides that “[i]n any prosecution for rape, evidence relating to the past sexual behavior of the complaining witness may be introduced if the court . . . finds that the past sexual behavior directly involved the participation of the accused and finds that the evidence expected to be introduced supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution.” (Emphasis supplied.) The trial court held a hearing in camera as required by the statute. Alvin Matthews and Smith himself were allowed to proffer their testimony regarding the victim’s alleged past sexual conduct. Following the hearing, the trial court ruled that the jury would not be allowed to hear the testimony of either man.

Smith asserts that the court erred in excluding Matthews’ testimony that the victim had offered Matthews sexual favors in exchange for drugs or money. This argument is without merit. Matthews’ testimony could not support any inference that Smith reasonably believed that the victim consented to sexual intercourse because it did not refer to any past sexual behavior involving the victim and Smith, and because Smith did not even know about the alleged incident until after he had been charged with the rape.

Smith also asserts that the trial court erred in refusing to permit him to testify regarding the victim’s reputation in the community for offering to exchange sex for drugs or money. In light of Smith’s testimony during the in camera hearing that he was unaware of the victim’s reputation for offering sex in exchange for drugs, we find this assertion to be without merit.

2. Smith contends that the trial court erred in admitting evidence of similar transactions. The State presented four witnesses, each of whom testified that she had been raped by Smith.

Smith first argues that there was no showing that he was prosecuted and convicted of three of these alleged offenses. This argument has no merit. We held in Johnson v. State, 193 Ga. App. 618, 620 (388 SE2d 866) (1989), that “there need not be a charge or conviction relating to the similar offense for it to be admissible[.] [Cit.]”

Smith also argues that there was insufficient similarity or connection between the other offenses and the crime for which he was charged. This argument has no merit.

The victim testified that around 3:00 in the morning she was walking home alone when Smith approached, pointed a gun at her, and told her to get into his car. She knew Smith because he was the brother of one of her friends. After driving her to a dirt road in a remote area, Smith forced her to have sexual intercourse with him twice.

The trial court held a hearing outside of the jury’s presence. Four female witnesses testified that they were raped by Smith in separate incidents occurring between August 1982 and January 1991. Each witness testified that she knew Smith, and each identified him as the perpetrator of the attack; each testified she was alone when Smith approached her; and each testified that Smith threatened her either by saying that he was carrying a weapon or by showing her a weapon. Each testified that the attacks occurred late at night or early in the morning hours. The trial court also noted that three of the four victims were of similar stature. The incidents described by the witnesses are remarkably similar to the incident for which Smith was on trial.

“While generally evidence of other criminal acts committed by an accused is inadmissible because it tends to put the accused’s character into evidence . . . exceptions allow independent crimes to be introduced on two conditions: 1) there must be evidence that defendant was in fact the perpetrator of the independent crime, and 2) there must be sufficient similarity or connection between the independent crime and the charged crime that proof of the former tends to prove the latter. Thereafter, the independent crime may be introduced to prove identity, motive, plan, scheme, bent of mind and course of conduct.” (Citations and punctuation omitted.) Belcher v. State, 201 Ga. App. 139, 140 (1) (410 SE2d 344) (1991). The exceptions to the general rule have been liberally applied in cases of sexual crimes. Perry v. State, 158 Ga. App. 349, 352 (2) (280 SE2d 390) (1981). See also Farmer v. State, 197 Ga. App. 267, 268 (2) (398 SE2d 235) (1990).

The record shows that the trial court charged the jury prior to the testimony of each of the four witnesses on the law regarding similar transaction evidence. We find that the court properly admitted the testimony of the similar transaction witnesses, and properly instructed the jury as to the limited purposes for which they could consider this evidence.

3. Smith contends that the trial court erred in failing to give two jury instructions, neither of which he requested at trial. Smith’s contentions are not supported by argument or citation of authority, and are thus deemed abandoned. See Court of Appeals Rule 15 (c) (2).

Judgment affirmed.

Carley, P. J., and Pope, J., concur.

Decided November 5, 1992.

Sarah M. Tipton-Downie, D. Duston Tapley, Jr., for appellant.

Richard A. Malone, District Attorney, Melvin E. Hyde, Assistant District Attorney, for appellee.


text:
    A92A1618.
    A92A1619.
    WALTER et al. v. ALLSTATE INSURANCE COMPANY. PECK v. ALLSTATE INSURANCE COMPANY.
    (424 SE2d 866)
   Birdsong, Presiding Judge.

Allstate Insurance Company issued an automobile insurance policy covering Jesse Clifford Walter, Jr., and Andrea Walter for the period September 6, 1990 — March 6, 1991. After the Walters failed to make one of the required premium payments, Allstate sent the required notices about the non-payment, and when payment was not received, cancelled the Walters’ policy effective 12:01 a.m. on October 23, 1990.

At approximately 5:30 p.m. on October 23, 1990, Andrea Walter was involved in an automobile collision with Darlene Peck. The next day, the Walters paid the premium for the policy at an Allstate agent’s office. After the payment was received by mail at Allstate’s home office, the policy was re-activated.

After Peck sued the Walters for damages arising from the automobile collision, Allstate filed an action, against the Walters and Peck seeking a declaratory judgment of its obligations under the automobile insurance policy. Allstate contends it has no responsibility to defend or indemnify the Walters because the collision with Peck occurred after the policy was cancelled and before the policy was reinstated. The Walters and Peck contend, however, that notwithstanding the cancellation notice, the policy was effective at the time of the accident because the policy was reinstated retroactive to the date of cancellation and, in any event, the cancellation was not effective because Allstate failed to give notice to the State Department of Public Safety as required by OCGA § 33-34-11 (a) (1). (OCGA § 33-34-11 was repealed effective January 1, 1991. The notice procedures are now contained in OCGA § 40-5-71, as corrected.)

After Allstate and Peck moved for summary judgment, the trial court denied Peck’s motion and granted Allstate’s motion for summary judgment. The trial court held that the evidence showed that the accident occurred after the policy was cancelled and before the policy was reinstated, and that the Walters’ and Peck’s contention that Allstate’s failure to comply with OCGA § 33-34-11 (a) (1) was not well taken because OCGA § 33-34-11 (a) (3) provides that irregularities giving notice to the Department of Public Safety shall not invalidate a valid cancellation. These appeals followed. Held: -

1. Allstate’s motion to dismiss the appeals because appellants failed to include the required jurisdictional statement is denied. OCGA § 5-6-48 (a).

2. The parties’ motion to consolidate the appeals is granted.

3. The Walters and Peck assert that the trial court erred by granting summary judgment to Allstate and by failing to grant summary judgment to Peck because Allstate did not notify the Department of Public Safety in writing of the cancellation as provided by OCGA § 33-34-11 (a) (1). Although decisions of this court have held that notice to the Department was a condition precedent to an effective policy cancellation (e.g., Dupree v. Georgia Mut. Ins. Co., 188 Ga. App. 857 (374 SE2d 546)), these pre-date the 1990 amendment to OCGA § 33-34-11 which added OCGA § 33-34-11 (a) (3): “Notwithstanding the provisions of paragraph (1) of this subsection, any irregularities in the notice to the Department of Public Safety required by paragraph (1) of this subsection shall not invalidate an otherwise valid cancellation.” Therefore, the decisions appellants rely upon are no longer valid precedent.

Further, we reject appellants’ contentions that before OCGA § 33- 34-11 (a) (3) is applicable, some irregular notice under OCGA § 33-34- 11 (a) (1) must be attempted. We must give the words of the Code section their ordinary signification (OCGA § 1-3-1 (b); Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430)), and by its plain terms OCGA § 33-34-11 (a) (3) applies to “any irregularities.” Thus, the failure to give any notice is “any irregularity.” Moreover, under the facts of this case, in which the policy was reinstated within the 15-day period in which Allstate was required to notify the Department, giving notice would be a useless endeavor. As appellants recognize the purpose of the notice requirement is to eliminate automobile registrations outstanding without insurance coverage (see Sentry Indem. Co. v. Sharif, 248 Ga. 395 (282 SE2d 907)); consequently, giving notice that a policy was cancelled after the policy had already been reinstated, would not serve the purpose of the notice provision. Accordingly, this enumeration of error is without merit.

4. Appellants also contend the trial court erred by finding that the policy was not reinstated retroactive to the date and time of cancellation. This argument is also without merit. Allstate’s records show that the policy was cancelled on October 23, 1990, prior to the collision, and was not reinstated until October 25, 1990, after the accident. Although the records indicate the policy was reinstated retroactively, the undisputed admissible evidence shows that the policy was reinstated retroactive to October 25, and not October 23. Further, appellants’ reliance on cases concerning retroactive reinstatement of life insurance policies in which the loss had not occurred prior to the reinstatement is not warranted.

Decided November 5, 1992.

J. Wyman Lamb, for appellants (case no. A92A1618).

Harris, Van Gelderen & Cruz, Leon Van Gelderen, Kenneth I. Bergman, for appellant (case no. A92A1619).

Chambers, Mabry, McClelland & Brooks, Stuart K. Theodore, for appellee.

Accordingly, we find no error.

Judgments affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A2063.
    THE STATE v. GREENWOOD.
    (424 SE2d 870)
   Birdsong, Presiding Judge.

The State has filed a notice of direct appeal in this criminal case, erroneously under the authority of OCGA § 5-6-37, from the judgment on remittitur of the superior court, which decreed that the judgment of this court in Greenwood v. State, 203 Ga. App. 901 (418 SE2d 160), be made the judgment of the superior court. Thus, pursuant to our judgment in Greenwood, supra, the superior court adjudicated in its judgment on remittitur that defendant Richard Greenwood was not guilty due to insufficiency of the evidence as to Count I (criminal attempt to commit burglary) and Count II (possession of tools for commission of a crime) of the indictment, and ordered that defendant be retried as to Count III (theft by receiving stolen motor vehicle). The State asserts merely because the judgment line in Greenwood, supra (judgment affirmed in part and reversed in part), inadvertently created a discrepancy with the actual holding of this court as unequivocally reflected in the body of our opinion, that the trial court erred in not affirming appellant’s conviction as to Count III of the indictment. Held:

In every case appealed to this court, we are required to examine the record to ensure that we possess the requisite jurisdiction. Atlantic-Canadian Corp. v. Hammer &c. Assoc., 167 Ga. App. 257 (306 SE2d 22). Pretermitting the issue whether that portion of the order from which this appeal is taken is interlocutory and not final within the meaning of OCGA § 5-7-2 is the issue whether the State has authority to appeal this particular type of order in a criminal case in any event. “The authority of the State to appeal an adverse ruling in a criminal case is controlled by statute,” specifically OCGA § 5-7-1. State v. McKenna, 199 Ga. App. 206, 207 (404 SE2d 278). Construing the remedial provisions of OCGA § 5-7-1 liberally as we are required to do (State v. Strickman, 253 Ga. 287, 288 (319 SE2d 864)), we find that the State lacks statutory authority to appeal a judgment on remittitur on the grounds here asserted. Accordingly, we are without appellate jurisdiction and the appeal must be dismissed.

Decided November 5, 1992.

Roger Queen, District Attorney, for appellant.

Frank J. Petrella, for appellee.

Appeal dismissed.

Beasley and Andrews, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A92A2259.
    PAYNE v. THE STATE.
    (424 SE2d 868)
   McMurray, Presiding Judge.

Defendant Payne appeals his convictions of the offenses of fleeing and attempting to elude a police officer, obstructing and hindering law enforcement officers, aggravated assault upon a police officer, and theft by taking of a motor vehicle. Held:

1. The first enumeration of error raises the issue of the sufficiency of the evidence to authorize the convictions of defendant. The evidence stated in the light most favorable to the jury’s determination shows that after 2:00 a.m. on the morning of October 5, 1991, the victim of the motor vehicle theft drove his automobile to a convenience store to buy cigarettes, went into the store for approximately five minutes and when he returned his car was gone. The owner of the vehicle did not know defendant and had not given anyone permission to take his car. An off-duty police officer had earlier noticed defendant in the parking lot and felt that he was acting in a suspicious manner. The off-duty officer was using the store’s telephone to request that a unit be dispatched to investigate and looking out the store’s window when he saw defendant run and jump in the car and drive away. The police radio broadcast a lookout for the stolen car and approximately 30 minutes later it was spotted by Officer Reynolds and followed until a roadblock could be established in the path of the stolen car. Lieutenant Whitehead established the roadblock with a marked police car. The strobe and blue light on the patrol car were turned on, there was a nearby street light, and Lieutenant Whitehead was in uniform. As the stolen car approached the roadblock it slowed and came to a stop. As Lieutenant Whitehead approached the stolen car, it accelerated rapidly and went straight at the officer, who screamed for the vehicle to stop and fired his gun into the ground before leaping from the path of the stolen vehicle. The stolen car hit Lieutenant Whitehead’s leg and sideswiped his patrol car as it went past. Lieutenant Whitehead testified that he thought he was about to die or he would not have fired his weapon. Officer Reynolds pursued the stolen car until it crashed on an embankment and then approached on foot. Defendant, who had been driving the vehicle, exited the stolen car and ran for a distance of approximately 100 yards before he was overtaken and stopped by Officer Reynolds. Officer Reynolds testified that he was approximately five yards away when defendant exited the car, and did not fall further behind or lose sight of defendant during the chase on foot.

Defendant presented an alibi defense, that he was outdoors in a residential neighborhood drinking beer with a group of individuals when he moved away‘from the group towards a vacant house and was relieving himself in or near some bushes when he heard footsteps, saw two people heading his way, and that he ran out of fear that he might get hurt. A resident of the neighborhood corroborated defendant’s testimony. While the driver of the stolen car was repeatedly described by the pursuing officers as wearing a jacket, the booking report on defendant describes him as wearing a shirt and makes no mention of a jacket.

Defendant argues that the inconsistencies in the evidence render it insufficient to establish the identity of defendant as the driver of the stolen car. However, the determination of credibility and resolution of conflicts in the evidence are for the jury. This Court does not reweigh the evidence but only determines its legal sufficiency. Holcomb v. State, 198 Ga. App. 547 (1) (402 SE2d 520). After a careful review of the entire record, we find that the evidence is sufficient to authorize any rational trier of fact to find defendant guilty beyond a reasonable doubt of the offenses of fleeing and attempting to elude a police officer, obstructing and hindering law enforcement officers, aggravated assault upon a police officer, and theft by taking of a motor vehicle. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Cooley v. State, 201 Ga. App. 171 (1) (410 SE2d 453).

. 2. Defendant’s remaining enumeration of error contends that the trial court erred in refusing to charge on the offense of reckless conduct as a lesser included offense of the offense of aggravated assault. The charge of aggravated assault upon a police officer was predicated on the incident in which defendant drove the stolen car at Lieutenant Whitehead. The uncontroverted evidence concerning this incident is that the stolen car was brought to a stop before the roadblock established by Lieutenant Whitehead who was in uniform and easily visible. When Lieutenant Whitehead stepped from safety behind his patrol car, the accelerator of the stolen car was “put ... on the floor” and the vehicle accelerated straight toward the officer who reasonably feared for his life. Under these circumstances there is no evidence of the lesser crime of reckless conduct. The action constituted an aggravated assault by the driver of the vehicle upon Officer Whitehead. The trial court did not err in refusing to charge as to reckless conduct. Briard v. State, 188 Ga. App. 490, 493 (5) (373 SE2d 239); Weaver v. State, 185 Ga. App. 573 (365 SE2d 130). Contrary to defendant’s assertion, the recent decision in Turner v. State, 262 Ga. 359 (418 SE2d 52) is not applicable to this case.

Decided November 5, 1992.

Katie Anderson, for appellant.

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

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A2400.
    LEARY v. THE STATE.
    (424 SE2d 903)
    Decided November 5, 1992.

      Michael M. Sheffield, for appellant.

      Robert E. Wilson, District Attorney, Robert W. Houman, Robert M. Coker, Assistant District Attorneys, for appellee.
   McMurray, Presiding Judge.

Defendant Leary appeals his conviction of the offense of robbery. Held:

The sole enumeration of error contends that the trial court erred in failing to grant defendant’s motion for mistrial based on the State having placed the defendant’s character in issue with the playing of a redacted taped statement of the defendant. After the trial court’s curative instruction was given to the jury, defendant failed to renew his objection or motion for mistrial and thus waived his right to appellate review. Perkins v. State, 260 Ga. 292, 295 (6) (392 SE2d 872); Whitaker v. State, 246 Ga. 163, 166 (11), 167 (269 SE2d 436); Quick v. State, 198 Ga. App. 353 (1) (401 SE2d 758); Sneed v. State, 172 Ga. App. 64, 65 (2) (321 SE2d 799).

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.


text:
    A92A0801.
    GREEN v. WILCOX.
    (424 SE2d 801)
   Sognier, Chief Judge.

Jason Green, by his next friend, his mother, Tammie Green, brought a medical malpractice action against Dr. C. R. Wilcox alleging that during Green’s birth Wilcox, an obstetrician, applied injudicious traction in attempting to correct shoulder dystocia, causing permanent partial paralysis of Jason’s right arm. A jury returned a verdict in favor of Wilcox, and Green appeals.

In his sole enumeration of error, appellant contends the trial court erred by refusing his request to strike a juror for cause, forcing him to use a peremptory strike. The prospective juror in issue, Dr. Thomas Moss, is a local family practitioner who acknowledged he was personally acquainted with both parties. Dr. Moss is associated with the family practice teaching service at Floyd Medical Center, the hospital where appellee practices and appellant was born. Responding to questioning by appellant’s attorney during voir dire, Dr. Moss admitted that he had “certain feelings about being sued,” that he felt uncomfortable sitting on the jury in this case, and that “[i]t would be hard” to be fair and impartial under the circumstances of his occupation. When further questioned by the trial court, Dr. Moss first reiterated uncertainty about whether he could be impartial. Finally, however, in response to further questioning by the trial court regarding whether, if he were selected and “charged with the responsibility of determining what the facts are and applying the law to those facts,” Dr. Moss replied: “I could do that.” Following this colloquy, appellant’s counsel requested that the trial court strike Dr. Moss for cause, which request was denied. The record on appeal has been properly supplemented by the inclusion of the clerk’s jury selection list indicating that appellant struck Dr. Moss and exhausted his peremptory strikes, thus satisfying the requirement that appellant show harm. See Collins v. Cooper, 145 Ga. App. 559, 560 (1) (244 SE2d 95) (1978).

We note initially that although subsequent questioning of the panel revealed that Dr. Moss had been represented by appellee’s attorney in a malpractice suit, we cannot consider this additional relationship in deciding appellant’s enumeration, for appellant’s attorney failed to renew his request that Dr. Moss be excused for cause after learning of this relationship. Since the trial court was deprived of the opportunity to rule on the issue of whether this additional factor was significant enough to require excusing Dr. Moss for cause, appellant waived his right to raise this additional factor on appeal. See Bean v. Barron, 176 Ga. 285 (1) (168 SE 259) (1933); see generally Wooten v. McDonald, 198 Ga. App. 293 (401 SE2d 314) (1991). Accordingly, we consider only the issue of whether the trial court erred by denying appellant’s request to excuse Dr. Moss for cause because of his professional relationship with appellee.

Decided October 22, 1992 —

Reconsideration denied November 6, 1992.

Chambers, Mabry, McClelland & Brooks, Eugene P. Chambers, Jr., John E. Hawkins, for appellant.

Shaw, Maddox, Graham, Monk & Boling, C. Wade Monk II, for appellee.

The relationship between Dr. Moss and appellee was one of two doctors in different specialties who knew each other in the professional community. Dr. Moss denied any social or familial relationship with appellee, and appellant’s attorney’s careful questioning of Dr. Moss failed to reveal any relationship other than the professional one. Contrary to appellant’s arguments, the relationship of two professionals working in the same field, even at the same hospital, is not one contemplated by OCGA § 15-12-135 (a) as disqualifying a prospective juror. Poulnott v. Surgical Assoc. of Warner Robins, P. C., 179 Ga. App. 138-139 (1) (345 SE2d 639) (1986). Although Dr. Moss initially indicated that it would be difficult for him to be impartial, “ ‘[t]he trial judge has a discretion in determining whether a juror can decide the case in accordance with the evidence presented during the trial and without bias or partiality or outside influences. Unless there is manifest abuse we cannot require a new trial. (Cit.)’ [Cit.]” Id. at 139 (1). Given Dr. Moss’ responses to the trial court’s questioning and his eventual agreement that he could decide the case based solely on the evidence presented, we do not find such manifest abuse here. See Cone v. Johnson, 251 Ga. 371, 372-373 (2) (306 SE2d 244) (1983); Decubas v. Norfolk Southern Corp., 197 Ga. App. 768-769 (399 SE2d 512) (1990). The trial court did not err by denying appellant’s request to excuse this juror for cause.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


text:
    A92A1164.
    HARTFORD INSURANCE COMPANY OF THE SOUTHEAST v. FRANKLIN et al.
    (424 SE2d 803)
   Sognier, Chief Judge.

Bonnie Franklin filed suit individually and as the executrix of the estate of Charles Franklin against Country Rock Cafe, Inc., alleging that the Cafe negligently served alcoholic beverages to a noticeably intoxicated person, Barbara Tidwell, who then left the Cafe in her car and collided with a vehicle driven by Charles Franklin, killing him and injuring Bonnie Franklin. The Cafe filed a third-party complaint against Hartford Insurance Company of the Southeast, seeking indemnification and a defense under a liability policy Hartford issued to the Cafe. Hartford answered and counterclaimed for a declaratory judgment that it was not liable to the Cafe because of an exclusion in the policy. The trial court denied Hartford’s motion for summary judgment on its counterclaim against the Cafe, and we granted Hartford’s application for interlocutory appeal.

Appellee Country Rock Cafe (hereinafter “appellee”) owned and operated a bar and restaurant in Atlanta. Appellant issued to appellee a comprehensive business liability policy containing the following provision: “[T]his policy does not apply ... to bodily injury or property damage for which the insured . . . may be held liable: (a) as a person or organization engaged in the business of . . . selling or serving alcoholic beverages ... if such liability is imposed (1) by, or because of the violation of any statute, ordinance or regulation pertaining to the sale, gift, distribution or use of any alcoholic beverage, or (2) by reason of the selling, serving or giving of any alcoholic beverage to a minor or to a person under the influence of alcohol or which causes or contributes to the intoxication of any person.” Franklin’s complaint against appellee alleged that it was negligent per se for having sold alcoholic beverages to a noticeably intoxicated person in violation of OCGA §§ 3-3-23; 51-1-40.

Appellant moved for summary judgment on the ground that the above exclusion applied to the estate’s and Franklin’s claims against appellee, thereby relieving appellant of any duty to defend or provide coverage to appellee. In response, appellee contended that appellant should be ordered to provide coverage either because the exclusion was void as against public policy or on the basis that appellant should, because of its conduct, be estopped from denying coverage. The trial court denied appellant’s motion and certified the question for immediate review.

1. Appellant first contends the exclusion at issue is unambiguous and unequivocally excludes from coverage all claims Franklin and the estate have asserted against appellee. “Ambiguity in an insurance policy may be defined as duplicity, indistinctness, an uncertainty of meaning or expression. [Cit.]” (Punctuation omitted.) Alley v. Great Am. Ins. Co., 160 Ga. App. 597, 599 (287 SE2d 613) (1981). We agree with appellant that the exclusion at issue unambiguously provides that the insurance policy does not accord liability coverage for one selling or serving alcoholic beverages if liability is imposed either by laws pertaining to the sale or use of alcoholic beverages or by the selling or serving of alcohol to a minor or an intoxicated person or when the alcohol sold causes or contributes to intoxication. Even applying the rule that any exclusion from coverage must be construed strictly against the insurer, Richards v. Hanover Ins. Co., 250 Ga. 613, 615 (299 SE2d 561) (1983), the policy language remains plain and unambiguous, and accordingly the parties are bound by its terms. See id. at 614; see also Ranger Ins. Co. v. Columbus-Muscogee Aviation, 130 Ga. App. 742, 745 (4) (204 SE2d 474) (1974) (policy containing plain and unambiguous policy limitation on insurer’s liability cannot be expanded beyond what is fairly within its plain terms). Since the claim alleged against appellee seeks to impose liability for violation of OCGA § 3-3-23 (sale or service of alcoholic beverages to person under 21 years of age) and OCGA § 51-1-40 (drain shop law), it clearly falls within the scope of the exclusion in the policy issued to appellee. Accord Zurich Ins. Co. v. Uptowner Inns, 740 FSupp. 404 (S. D. W. Va. 1990) (identical policy provision held to be unambiguous and to exclude coverage for claim asserted by one injured by driver who became intoxicated at defendant’s tavern).

2. We likewise agree with appellant that the policy provision at issue is not void as against the public policy of this State. “ ‘A contract cannot be said to be contrary to public policy unless the General Assembly has declared it to be so, or unless the consideration of the contract is contrary to good morals and contrary to law, or unless the contract is entered into for the purpose of effecting an illegal or immoral agreement or doing something which is in violation of law. [Cits.]’ [Cit.]” Department of Transp. v. Brooks, 254 Ga. 303, 312 (328 SE2d 705) (1985). Contracts will not be voided by the courts as against public policy except where the case is free from doubt and an injury to the public interest clearly appears. Emory Univ. v. Porubiansky, 248 Ga. 391, 393 (282 SE2d 903) (1981).

The only element named in Brooks that is at issue here is the question whether the exclusion is contrary to the public policy of the State as reflected in the laws underlying the claim asserted against appellee. Our courts have found insurance policy exclusions to be unenforceable when the General Assembly has enacted legislation requiring insurance coverage for the claim sought to be excluded by the policy provision at issue and the exclusion was deemed contrary to the public interest. See GEICO v. Dickey, 255 Ga. 661 (340 SE2d 595) (1986) (presence of compulsory no-fault liability insurance law precludes enforcement of exclusion that puts insured at unreasonable risk of unanticipated liability); Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (329 SE2d 136) (1985) (same law precludes enforcement of liability exclusion for drag racing). These cases are distinguishable from the case at bar. Although the General Assembly has imposed liability for the service of alcohol to a noticeably intoxicated person who then injures another as a result of the intoxication, no law or policy of this State requires insurance coverage for such a liability. The reasoning in Emory Univ. v. Porubiansky is likewise distinguishable because the instant insurance policy does not shield a party from liability established by statute, but rather excludes such liability from coverage under the policy. Accordingly, we find no fatal conflict between the exclusion at issue and the public policy of this State.

Decided October 22, 1992 —

Reconsideration denied November 6, 1992

Chambers, Mabry, McClelland & Brooks, John C. Stivarius, F. Scott Young, for appellant.

3. Given that a judgment right for any reason will be affirmed, we must consider whether the trial court’s ruling on appellant’s motion for summary judgment can be upheld based on appellee’s argument below that appellant should be estopped from asserting the exclusion. Appellee’s president, Wayne Scruggs, testified by affidavit that he requested “full coverage on the operations of the restaurant and bar,” that the agent told him the business was fully covered, and that the agent did not inform him of any exclusion concerning the sale of alcohol. The insured in Savannah Laundry &c. Co. v. Home Ins. Co., 189 Ga. App. 420 (376 SE2d 373) (1988), presented virtually identical evidence in support of an estoppel argument. We declined to apply the doctrine of estoppel because the insured was under a duty to read and examine the policy and to reject it as unacceptable or renegotiate it if the coverage the insured sought was not provided in the policy. Id. at 422-423 (2).

Even construing all evidence in the case sub judice in favor of appellee as the respondent, the same legal principles applied in Savannah Laundry control the result here. The policy was issued nine months before the accident at issue occurred; therefore, appellee was obligated to examine the policy and reject or renegotiate if it did not receive the coverage Scruggs claims to have requested. Accord De-Jonge v. Mutual of Enumclaw, 800 P2d 313, 314-315 (Ore. App. 1990) (insurer not estopped from denying coverage pursuant to an alcohol sale exclusion for a claim involving the sale of alcohol to a minor who caused an accident in which another person was killed). There is no evidence of any intentional misrepresentations by appellant that would excuse appellee’s failure to examine the policy. See Appling v. Home Fed. Savings &c. Assn., 185 Ga. App. 356, 358-360 (364 SE2d 91) (1987). We decline to follow the California case appellee cites, Aetna Cas. &c. Co. v. Velasco, 240 Cal. R. 290 (1987), because that case established principles which conflict with well-established precepts of Georgia insurance and contract law. Consequently, we hold the trial court erred by denying appellant’s motion for summary judgment.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.

McLain & Merritt, Albert J. Decusati, J. Douglas Sexton, for appellees.


text:
    A92A1495.
    A92A1496.
    COTTINGHAM v. THE STATE. SIMMONS v. THE STATE.
    (424 SE2d 794)
   Johnson, Judge.

Richard L. Cottingham and Steve B. Simmons were jointly tried and convicted of three counts of armed robbery. They appeal from their convictions and the denials of their motions for new trial.

Case No. A92A1495

1. Cottingham contends that the trial court erred in denying his motion for a directed verdict of acquittal as to Count 3 of the indictment charging him with armed robbery of Chris Burnette. Cottingham argues that because Burnette did not testify, there was insufficient evidence to show that Burnette had a reasonable apprehension that an offensive weapon was being used against him. We disagree.

“The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction.” (Citations and punctuation omitted.) Johnson v. State, 201 Ga. App. 88, 89 (1) (410 SE2d 189) (1991). The State presented the testimony of Johnny Drew and Janet Higdon, the victims named in the first two counts of the indictment. Drew and Higdon both identified Cottingham as the man who used a gold-plated .22 caliber revolver to rob them while they were working at a convenience store. They testified that Cottingham pointed the revolver at them and ordered them to open the cash register. After getting $82 from the register, Cottingham also took $60 from Drew and $8 from Higdon. Burnette, a customer, then came into the store to pay for gas. Cottingham grabbed $20 from Burnette’s hand, shoved Burnette against a wall and demanded his wallet. Burnette, however, was not in possession of a wallet. Cottingham, still holding the gun, then ripped the station’s telephone out of the wall and fled the store. The State also presented the testimony of Carolyn Luallen, who claimed that immediately after the incident, Cottingham and Simmons both admitted committing the armed robberies. Reviewing the evidence in the light most favorable to the jury’s verdict, we find that a rational trier of fact could have found Cottingham guilty beyond a reasonable doubt of armed robbery of Burnette. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, the trial court did not err in denying Cottingham’s motion for a directed verdict.

2. Cottingham next contends that the trial court erred in charging the jury that robbery by intimidation is a lesser included offense of armed robbery. Cottingham argues that this portion of the court’s charge misled the jury into believing that robbery by intimidation is simply a method by which armed robbery can be committed. This argument is without merit.

It is generally not error to give an entire Code section in a charge, even though part of the section may be inapplicable to the allegations and the evidence. Bagby v. State, 178 Ga. App. 282, 283-284 (7) (342 SE2d 731) (1986). Here, the court read to the jury the entire text of OCGA § 16-8-41 (a), which defines armed robbery. The last sentence of that subsection (a) states, “robbery by intimidation shall be a lesser included offense in the offense of armed robbery.” The court did not further charge the jury on the definition of robbery by intimidation. While it is true that the portion of the Code section complained of was unnecessary based on the allegations and evidence in the instant case, there is nothing about that portion or the rest of the charge that supports Cottingham’s contention that the jury was led to believe that robbery by intimidation is a way of committing an armed robbery. Accordingly, we find no reversible error. See Smith v. State, 178 Ga. App. 19, 20 (4) (341 SE2d 901) (1986); Slack v. State, 159 Ga. App. 185 (2) (283 SE2d 64) (1981).

3. In his final enumeration of error, Cottingham challenges his sentence. The trial court sentenced Cottingham to serve consecutive terms of twenty years in prison on each of the three counts of armed robbery, and further ordered that those sentences run consecutive to a sentence Cottingham was already serving in Alabama. Prior to sentencing, the trial judge stated, “it [is] not my policy to run any sentence concurrent with any other sentence unless I’ve imposed that other sentence. ... I always make it a policy to impose any sentence consecutive to any sentence that they’re now serving.” Cottingham argues that the trial court abused its discretion in sentencing him based on such a policy. Because the judge’s policy relates only to his refusal to run a sentence concurrent with one imposed by a different court, Cottingham’s argument applies only to that portion of the court’s order which provides that Cottingham’s 60-year sentence is to run consecutive to the Alabama sentence. To the extent that Cottingham challenges the other aspects of his sentence, we will not review those aspects for error as they are within the statutory limits. See Snyder v. State, 201 Ga. App. 66, 70 (10) (410 SE2d 173) (1991). However, we must addfess that portion of the sentence requiring it to run consecutively to Cottingham’s Alabama sentence based on the judge’s statement of his sentencing policy.

Trial courts are vested with broad discretion in determining whether to run sentences they impose consecutive to or concurrent with sentences already imposed by other courts. OCGA § 17-10-10; Daughtrey v. State, 138 Ga. App. 504, 507 (2) (226 SE2d 773) (1976). If a Georgia court remains silent as to whether its sentence is to run consecutive to or concurrent with a sentence already imposed by a court in another state or in the federal system, the sentences are deemed to be consecutive as a matter of law. Wheeler v. Jernigan, 248 Ga. 302 (282 SE2d 891) (1981); Taylor v. Green, 229 Ga. 164 (190 SE2d 66) (1972); Grimes v. Greer, 223 Ga. 628 (157 SE2d 260) (1967). Because of the broad discretion in sentencing vested in trial courts, it is the duty of the courts to exercise that discretion as to all aspects of sentences they impose. Although we have found no Georgia cases which directly address the issue of a trial judge’s mechanical sentencing formula or policy, the Eleventh Circuit and several other circuits have held that a mechanical sentencing formula is an abdication of judicial responsibility and that implementing a rigid sentencing policy is an abuse of discretion. See United States v. Brown, 723 F2d 826 (11th Cir. 1984). See also Nation v. State of Ga., 645 FSupp. 179 (N. D. Ga. 1986). We recognize that in Brown and Nation, the rigid sentencing policy in question was one based solely upon the crime of which the defendant was convicted to the exclusion of all other relevant factors which a sentencing judge must consider in order to properly exercise discretion in sentencing. We note that the trial court’s stated sentencing policy in the instant case was not based on the crime of which Cottingham was convicted, but instead was based on the fact that a prior sentence was imposed by a different court. Nonetheless, we find the reasoning of the federal courts instructive. We hold that a trial court’s use of a mechanical sentencing formula or policy as to any portion of a sentence amounts to a refusal to exercise its discretion and therefore is an abdication of judicial responsibility. Here, the trial court abdicated its judicial responsibility by basing a portion of its sentence on the rigid policy that it would never run a sentence it imposed concurrent with a sentence imposed by another court. In ordering that Cottingham’s sentence in this case run consecutive to the Alabama sentence based solely on the stated policy, the trial court failed to exercise its discretion. Accordingly, we must vacate that portion of the trial court’s sentencing order and remand the case to the trial court for resentencing. Upon remand, the sole sentencing issue which remains to be considered by the trial court is whether Cottingham’s 60-year sentence imposed in the instant case is to run consecutive to or concurrent with his Alabama sentence.

Case No. A92A1496

4. Simmons asserts that the trial court erred in allowing an agent for the Georgia Bureau of Investigation (GBI) to testify as to incriminating statements allegedly made by Simmons. We agree and reverse Simmons’ conviction.

GBI agent Gregory A. Ramey interviewed Simmons at a prison in Tennessee, where Simmons was incarcerated on a charge separate from the instant matter. GBI investigator Jim White and Tennessee prison official David Westbrook were present during the interview. After agent Ramey informed Simmons of his Miranda rights, Simmons signed a form waiving those rights. Simmons then spoke with Ramey about personal background information and his relationship with Cottingham. When Ramey asked Simmons whether he had been with Cottingham on the date of the incident, Simmons stated, “I better talk to an attorney.” At that point, agent Ramey, in Simmons’ presence, made statements to investigator White concerning evidence they had against Simmons. Ramey made these statements despite the fact that White was already aware of the evidence. In response to the officers’ discussion, Simmons allegedly made incriminating statements. Agent Ramey testified at the Jackson v. Denno hearing that his purpose in discussing the evidence with investigator White in front of Simmons was to inform Simmons that the State was building a strong case against him so that Simmons might respond by making an incriminating statement.

“After a suspect in custody has invoked his right to counsel, subsequent interrogation is strictly prohibited unless initiated by the suspect. [Cit.]” Hibbert v. State, 195 Ga. App. 235, 236 (393 SE2d 96) (1990). Here, Simmons did not initiate further discussion with Ramey after invoking his right to counsel. Simmons made his allegedly incriminating statements only after agent Ramey and investigator White began discussing the case in front of him. Thus, the only issue before us is whether the officers’ discussion in the presence of Simmons amounted to interrogation.

“The term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” (Citation and punctuation omitted. Emphasis in original.) Hibbert v. State, supra.

Decided October 20, 1992 —

Reconsideration denied November 6, 1992.

Herbert E. Franklin, Jr., for appellant (case no. A92A1495).

John R. Emmett, for appellant (case no. A92A1496).

Ralph L. Van Pelt, Jr., District Attorney, for appellee.

Agent Ramey should have known that his statements to investigator White were reasonably likely to elicit an incriminating response from Simmons. In fact, Ramey’s admitted intent in discussing the case in front of Simmons was to elicit an incriminating response. “[T]he intent of the police . . . may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response. In particular, where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect.” Rhode Island v. Innis, 446 U. S. 291, 301-302, n. 7 (100 SC 1682, 64 LE2d 297) (1980). Accordingly, we find that Ramey’s actions, designed to elicit an incriminating response, amounted to further interrogation of Simmons. Because Simmons was in custody, had invoked his right to counsel and did not initiate further discussions with the police, agent Ramey’s subsequent interrogation was strictly prohibited. The trial court therefore erred in admitting into evidence testimony as to Simmons’ alleged responses to this prohibited interrogation. The remaining evidence presented against Simmons was not so overwhelming that we can say this error of constitutional magnitude was harmless. Simmons’ conviction therefore must be reversed.

5. Based on our decision in Division 4, we need not address Simmons’ second and third enumerated errors concerning the sufficiency of the evidence as to Count 3 of the indictment.

Judgment of conviction affirmed, sentence affirmed in part, vacated in part, and case remanded with direction in Case No. A92A1495. Judgment reversed in Case No. A92A1496.

Carley, P. J., and Pope, J., concur.

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

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