text:
    A98A1947.
    PALACIOS v. ABERCROMBIE.
    (510 SE2d 908)
   Judge Harold R. Banke.

Cynthia M. Palacios, as next friend and natural guardian of her son Domenic Palacios, appeals the grant of summary judgment to Rhonda Abercrombie, doing business as the Long Branch Day Care. Palacios enumerates three errors on appeal.

This case arose when nine-year-old Domenic tripped and fell while playing tag in the yard of the day care center, cutting his right knee. The injury required medical treatment.

Palacios sued, alleging that Domenic’s injury resulted from Abercrombie’s negligence in allowing a dangerous condition to remain on her premises where children under her care were known to play. The complaint further alleged the cut was the result of Domenic falling on a metal tent stake.

Abercrombie successfully moved for summary judgment on Palacios’ claims. The trial court concluded that no admissible evidence supported Palacios’ claim that a tent stake caused the injury. Held:

1. We must reject Palacios’ contention that the trial court failed to view the evidence in a light most favorable to her as the nonmovant.

The true ground of liability in premises liability cases is the owner’s superior knowledge of the dangerous condition. Clemmons v. Griffin, 230 Ga. App. 721, 722 (498 SE2d 99) (1998). Thus, to prevail, Palacios had to show fault on Abercrombie’s part and Domenic’s ignorance of the danger. Steinberger v. Barwick Pharmacy, 213 Ga. App. 122, 123 (1) (444 SE2d 341) (1994). An injury, without more, does not create the presumption of negligence. Clemmons, 230 Ga. App. at 722.

The evidentiary record consists solely of the depositions of Domenic Palacios and Rhonda Abercrombie. Domenic testified that he was running during a game of tag when he tripped and fell. He admitted that he did not know what, if anything, his knee hit, but the top of his foot may have stubbed the ground, causing the fall. He denied seeing a tent stake before he fell, but believed a tent stake cut his knee because his friend’s mom, Gail Moore, said it was a tent stake and the doctor said it could not have been anything else. Domenic admitted, however, that Mrs. Moore did not see him fall and did not tell him why she thought a tent stake caused his injury.

Although it is undisputed that a tent had been located near the area where Domenic fell, Palacios presented no evidence from which the trial court could infer Abercrombie’s superior knowledge of the alleged hazard. Abercrombie testified that before she opened the day care she cleared things like large rocks and sticks and did not leave rusted metal or large rocks with sharp edges where the children would play. While she admitted that her mother told her that Stan Southers said that he dug up a metal pipe or stake in the play area the day of Domenic’s injury, Abercrombie denied seeing what he allegedly discovered.

“Evidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment.” (Punctuation omitted.) Hall v. Cracker Barrel &c., 223 Ga. App. 88, 92 (1) (476 SE2d 789) (1996). The testimony in the depositions repeating statements by third parties Mrs. Moore, Mr. Southers, or the unidentified doctor is inadmissible hearsay, lacking in probative value, and cannot be considered in summary judgment proceedings. Hassell v. First Nat. Bank, 218 Ga. App. 231, 234 (2) (461 SE2d 245) (1995).

Review of the record shows that no competent evidence was presented sufficient to establish a genuine issue of material fact on whether Abercrombie was responsible for Domenic’s injury. The competent evidence merely establishes that Domenic was injured when he tripped while playing tag and cut his knee when he fell to the ground. Thus, summary judgment was appropriate.

2. The record refutes Palacios’ claim that the trial court erred by focusing on the cause of Domenic’s injury, an issue purportedly not raised in Abercrombie’s motion. The trial court’s order focused on the total absence of evidence refuting Abercrombie’s testimony that she lacked knowledge of any hazardous condition, an issue clearly raised in her motion. See Steele v. Rosehaven Chapel, 233 Ga. App. 853, 855 (505 SE2d 245) (1998). It also noted the lack of any admissible evidence of the existence of a tent stake, a fact fatal to Palacios’ claim. Brown v. Amerson, 220 Ga. App. 318, 320 (469 SE2d 723) (1996) (speculation which raises a possibility is insufficient to create an issue of fact precluding summary judgment); see Hassell, 218 Ga. App. at 234.

Decided January 19, 1999.

B. Dean Grindle, Jr., for appellant.

Goodman, McGuffey, Aust & Lindsey, Leslie S. Sullivan, for appellee.

3. We must also reject Palacios’ contention that the trial court misapplied controlling legal authority on summary judgment practice. In this procedural posture, factual inferences are appropriate only when they arise from admissible evidence. Id. Here, all evidence of a tent stake was hearsay or double hearsay.

Judgment affirmed.

Johnson, C. J., and Smith, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A98A2122.
    THE STATE v. BLACK.
    (510 SE2d 903)
   McMurray, Presiding Judge.

Defendant was charged in an accusation with driving under the influence of alcohol, obstruction, reckless driving, failure to maintain lane and speeding. The trial court granted defendant’s motion in limine to exclude evidence of his refusal to take a state administered breath test based on the arresting officer’s failure to read verbatim the implied consent notice mandated by OCGA § 40-5-67.1 (b) (2). The State appeals. Held:

The General Assembly amended OCGA § 40-5-67.1 (b), effective March 27,1998, to state that an implied consent notice “shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.” Ga. L. 1998, pp. 210, 212. Although the offenses for which defendant is charged allegedly occurred on November 2, 1997, this amendment applies retroactively in the case sub judice. See State v. Moncrief, 234 Ga. App. 871, 872 (4), 873 (5) (508 SE2d 216). Accordingly, the controlling issue is whether the implied consent warnings given defendant satisfied the applicable statutory requirement under OCGA § 40-5-67.1. See State v. Sneddon, 235 Ga. App. 739 (510 SE2d 566). To this extent, defendant complains that the arresting officer’s implied consent warnings were deficient because the arresting officer changed the word “tests” to “test” in OCGA § 40-5-67.1 (b) (2)’s next to the last sentence and thereby changed the Code subsection’s meaning. We do not agree.

Decided January 19, 1999

Barry E. Morgan, Solicitor, Lawton W. Scott, Assistant Solicitor, for appellant.

James M. Mullís, for appellee.

The arresting officer’s testimony reveals that he used the word “test” instead of “tests” in the next to the last sentence of his implied consent warnings to defendant because the officer only asked defendant to submit to one type of state administered test — i.e., a breath test. Under such circumstances, we find that the arresting officer’s implied consent warnings to defendant satisfied the applicable statutory requirements under OCGA § 40-5-67.1. See State v. Hopkins, 232 Ga. App. 705 (503 SE2d 590). The trial court therefore erred in granting defendant’s motion in limine to exclude evidence of his refusal to take a state administered breath test.

Judgment reversed.

Blackburn and Eldridge, JJ, concur.

       The arresting officer testified that he advised defendant as follows: “Georgia law requires you to submit to state-administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. And your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.10 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state test, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances of your own expense and from qualified personnel of your own choosing. Will you submit to the state-administered chemical test of your breath... under the Implied Consent law?”


author: McMURRAY, Presiding Judge.

text:
    A98A2459.
    SAMPSON v. JONES.
    (510 SE2d 902)
   McMURRAY, Presiding Judge.

Plaintiff Sampson appeals the denial of his motion for new trial on the general grounds following a jury verdict for defendant Jones in this motor vehicle-pedestrian collision case. Plaintiff was attempting to cross a multi-lane street via a crosswalk at an intersection controlled by a traffic light and was struck by a vehicle driven by defendant, who was attempting to accomplish a right on red turn after coming to a stop at the light. Held:

Decided January 19, 1999.

Edwards & Youmas, Lonzy F. Edwards, for appellant.

Robert S. Slocumb, for appellee.

In reviewing the trial court’s ruling on the motion for new trial based on the general grounds, the proper standard of appellate review is the “any evidence” test, so that the evidence must be construed most favorably towards the party opposing the motion for new trial. Jordan v. Stephens, 221 Ga. App. 8, 10 (3) (470 SE2d 733); Central Nat. Ins. Co. v. Dixon, 188 Ga. App. 680, 681 (1) (373 SE2d 849). The evidence is conflicting in that plaintiff represents that he safely entered the crosswalk after waiting for all traffic to come to a halt at the red light. Defendant’s evidence is that plaintiff “jetted out” into the path of his vehicle as he proceeded to make a right on red turn so as to be in violation of OCGA § 40-6-91 (b). Furthermore, plaintiff’s testimony suggests that he did not wait for the proper signal from the traffic light, but instead entered the crosswalk when faced with solely a green arrow signal contrary to the provisions of OCGA § 40-6-21 (a) (1) (C). Finally, plaintiff’s admission that the last time he saw defendant’s vehicle before it hit him was while it was slowing down to stop at the intersection could have been viewed by the jury as suggesting a lack of due care for his own safety and could have been viewed as impeaching plaintiff’s assertions that he safely entered the crosswalk since defendant’s vehicle was in the curb side lane and was the first vehicle plaintiff would step in front of after entering the crosswalk.

Construed pursuant to the above standard, the trial evidence could be viewed as failing to show negligence on the part of defendant or as showing plaintiff’s own lack of due care for his safety as the proximate cause of his injuries. We find that the jury’s verdict was authorized by the evidence presented at trial. The trial court did not err in denying plaintiff’s motion for new trial.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A99A0752.
    SIMMONS v. GEORGIA BUREAU OF INVESTIGATION.
    (510 SE2d 618)
    Decided January 5, 1999
    Reconsideration denied January 20,1999.

      Gladys H. Pollard, for appellant.

      Thurbert E. Baker, Attorney General, Dennis R. Dunn, Susan L. Rutherford, Senior Assistant Attorneys General, Bryan K. Webb, Assistant Attorney General, for appellee.
   McMurray, Presiding Judge.

Appellant Simmons received a notice of proposed adverse action from his employer state agency, the Georgia Bureau of Investigation, based on evidence that Simmons “willfully misappropriated state funds by converting Purchase of Evidence Purchase of Information (PEPI) funds to [his] own personal use. . . .” Simmons’ subsequent dismissal was appealed to the State Personnel Board, where the administrative law judge (ALJ) determined that “Appellant did engage in misconduct by borrowing PEPI [funds] from subordinates for his personal use[, and further concluded that] the sanction [of dismissal] imposed by the [employer state agency] is appropriate for the misconduct engaged in by the Appellant.” Upon further administrative review, the ALJ’s findings of fact and conclusions of law were adopted by the State Personnel Board. Applying the “any evidence” standard of review, the Superior Court of DeKalb County affirmed Simmons’ dismissal. This direct appeal followed. Held:

Appeals from decisions of the superior courts reviewing decisions of state and local administrative agencies shall be by application in the nature of a petition for discretionary appeal. OCGA § 5-6-35 (a) (1) and (b). Our jurisdiction is invoked only by following the appropriate procedure, and where that procedure is not followed this Court has no jurisdiction to consider the merits of the appeal. Summerset v. Dept. of Offender Rehabilitation, 167 Ga. App. 730, 731 (307 SE2d 678); Dept. of Offender Rehabilitation v. Meeks, 165 Ga. App. 269 (299 SE2d 757). In the case sub judice, appellant failed to comply with the mandatory procedures for seeking discretionary appeal from the superior court’s affirmance of adverse administrative action. Consequently, the appeal in Case No. A99A0752 must be dismissed.

Appeal dismissed.

Andrews and Ruffin, JJ., concur.


text:
    A98A2276.
    In THE INTEREST OF A. F., a child.
    (510 SE2d 910)
   McMURRAY, Presiding Judge.

A. F. was adjudicated delinquent after the juvenile court found he committed an act which, had he been an adult, would have supported a conviction for criminal damage to property in the second degree. OCGA § 16-7-23 (a) (1). On appeal, he asserts eight enumerations of error which all relate to the sufficiency of the evidence supporting the juvenile court’s ruling.

1. “In juvenile proceedings, the standard of proof on charges of a criminal nature is the same as that used in criminal proceedings against adults — proof must be beyond a reasonable doubt.” (Citations and punctuation omitted.) In the Interest of J. T. M., 200 Ga. App. 636, 637 (409 SE2d 256). In order to sustain a “conviction for criminal damage to property in the second degree, the State was required to offer probative evidence which would sufficiently allow the [factfinder] to conclude [A. F.] intentionally caused in excess of $500 damage to the property of another person without that person’s consent. OCGA § 16-7-23 (a) (1). Our cases detail several proper methods for proving the value of the damage. A lay witness may give her opinion as to that value so long as she states the facts on which she bases her opinion or otherwise shows she had the opportunity to form a correct opinion. Yarber v. State, 144 Ga. App. 781 (242 SE2d 372) (1978). The cost of an item, so long as it is coupled with other evidence of its condition before and after the damage, may allow the [factfinder] to determine the value of [the] damage to everyday items. Id. Compare Pate v. State, 158 Ga. App. 395, 396 (2) (280 SE2d 414) (1981) (evidence of cost or purchase price alone is insufficient). Evidence of the cost to repair an item may also suffice. Holbrook v. State, 168 Ga. App. 380 (1), 381 (308 SE2d 869) (1983).” Bereznak v. State, 223 Ga. App. 584 (1) (478 SE2d 386).

In this case, the only evidence of damage in excess of $500 was the victim’s testimony that she obtained an estimate to repair her van in the amount of $605 from “the dealer.” She acknowledged that the damage to her van was not repaired for this price. The victim’s testimony about the repair estimate she obtained was inadmissible hearsay. In the Interest of J. C., 163 Ga. App. 822 (1) (296 SE2d 117). Since this hearsay was the only evidence establishing the amount of damage to the victim’s van, A. F.’s adjudication of delinquency for committing an act which would have supported a conviction for the offense of criminal damage to property in the second degree were he an adult must be vacated. Curtis v. State, 190 Ga. App. 173, 175 (2) (378 SE2d 516). The failure of A. F.’s counsel to object to the victim’s hearsay testimony does not alter this conclusion. “ ‘Since ordinary hearsay testimony is not only inadmissible but wholly without probative value, its introduction without objection does not give it any weight or force whatever in establishing a fact.’ [Cits.]” Duke v. State, 205 Ga. 106, 110 (52 SE2d 455). See also Calhoun v. State, 213 Ga. App. 375, 376 (4) (a) (444 SE2d 405).

Decided January 20, 1999.

Larry H. Tatum, for appellant.

Daniel J. Porter, District Attorney, Dawn H. Taylor, Assistant District Attorney, for appellee.

2. The evidence is sufficient to support an adjudication of delinquency for committing an act which would support a conviction for the offense of criminal trespass to property under OCGA § 16-7-21 (a) were he an adult. This is a lesser offense included within criminal damage to property in the second degree. Jennings v. State, 226 Ga. App. 461 (486 SE2d 693). Consequently, we remand with direction that an adjudication of delinquency and a disposition thereof be entered for committing an act which would have supported a conviction for the offense of criminal trespass to property were he an adult. Hogan v. State, 193 Ga. App. 543 (1) (388 SE2d 532); Choate v. State, 158 Ga. App. 8 (279 SE2d 459). This result does not violate A. F’s due process right to be notified of the charges against him. “A defendant is on notice of . . . lesser crimes which are included in the crime charged as a matter of law, OCGA § 16-1-6. . . .” McCrary v. State, 252 Ga. 521, 524 (314 SE2d 662).

3. A. F. next contends the evidence was insufficient to support his adjudication of delinquency because the State’s case was based on the uncorroborated testimony of an alleged accomplice. “In numerous decisions our courts have held that corroboration of an accomplice is not necessary to sustain a misdemeanor conviction.” (Citations and punctuation omitted.) Dabney v. State, 154 Ga. App. 355 (2) (268 SE2d 408). Since we have vacated A. F.’s adjudication of delinquency for acts which would constitute a felony, were he an adult, this enumeration is without merit. OCGA § 16-7-21 (d).

4. We find no merit in A. F.’s remaining enumerations of error.

Judgment vacated and case remanded with direction.

Blackburn and Eldridge, JJ, concur.


author: Johnson, Chief Judge.

text:
    A98A2167.
    JOHNSON v. THE STATE.
    (510 SE2d 918)
   Johnson, Chief Judge.

Hazel Johnson appeals her conviction of voluntary manslaughter. Johnson testified that she and Cato Mathis were living together in a trailer. They attended a party at a friend’s home. Mathis was drinking and smoking marijuana. Johnson was also aware that Mathis was using “dope.” As Johnson and Mathis were driving home, he began to curse her and accuse her of wanting to be with another man. Johnson told Mathis to move out of her trailer. When they got home, Mathis slapped Johnson. Johnson handed Mathis his clothes and started to pack his belongings. Mathis continued to yell at Johnson and struck her in the head with his fist. Johnson got a pistol from a drawer and again demanded that Mathis leave. Mathis grabbed Johnson’s arm, and a struggle began. Johnson either broke free or was pushed away by Mathis; she fell backwards, striking her head on the television set or a drawer. Johnson heard a loud noise but could not see anything as she suffered a “blackout.” As she began to see, she observed that Mathis had fallen backwards. Johnson screamed and ran from the bedroom. She told her daughter to call the police, an ambulance, and Mathis’ sister. She testified that she did not intentionally fire the gun.

Prior to trial, Johnson told several law enforcement personnel that the shooting was accidental. However, during the course of police interrogation, her statements did not remain consistent. Johnson initially stated that after she and Mathis went home, a “tussle” occurred and a gun went off; she could not remember where the gun came from or who had the gun at the time. Johnson made another statement substantially the same as her first. In this statement, Johnson said that she did not know whether she or Mathis got the gun first; Mathis grabbed her, she must have pushed him off, and the gun just went off. She also said that if she shot Mathis, she did not mean to do so. Upon further interrogation by a GBI special agent and after again claiming that she did not know who had the gun when it fired, Johnson changed her statement once more. She stated that Mathis pushed her and then went to the closet to get his clothes. She took the gun off the dresser and it went off as she was lowering it. Mathis was standing approximately nine to ten feet from her when he was shot. Johnson did not tell the special agent that Mathis had been using drugs or that he had refused to leave her home.

The police found no furniture out of place in the room. The pistol was found lying on a table on the opposite side of the bedroom from Mathis’ body. A firearms examiner testified that the pistol had three different safety mechanisms and that the pistol and its safety mechanisms were functioning properly. He also testified that it would take 4.2 pounds of force to pull the trigger on this pistol with its hammer cocked. It would take 11.2 pounds to pull the trigger when its hammer was not cocked. The pistol had one spent round and five live rounds when it was found. The live round immediately preceding the spent round had an indentation on the primer indicating that it too had been struck by a firing pin.

A forensic pathologist who performed the autopsy on Mathis’ body testified that Mathis died from a gunshot wound to the head. There were no soot deposits, gunshot residue, or stippling around Mathis’ wound, and the gun was fired no closer than 18 to 24 inches from Mathis’ head.

1. Johnson contends that the trial court erred in failing to grant a new trial as the verdict was contrary to the evidence. On appeal the evidence must be viewed in the light most favorable to support the verdict, and 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. Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997).

A person commits voluntary manslaughter when he causes another person’s death under circumstances which would otherwise be murder and acts solely as a result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. OCGA § 16-5-2 (a). A person’s intent and whether she acted in the heat of passion with adequate provocation or with justification depend largely on the credibility of witnesses. This was for the jury to assess. See Brown v. State, 225 Ga. App. 218, 219 (483 SE2d 633) (1997).

It was for the jury to determine how and why this weapon was fired and, if Johnson intentionally shot Mathis, whether that shooting was in the heat of passion or with justification. A jury has unlimited discretion to accept or reject a defendant’s testimony as a whole, or to accept it in part and reject it in part. See Wilson v. State, 214 Ga. App. 378, 380 (2) (447 SE2d 709) (1994). It is clear from the verdict that the jury at least partially rejected Johnson’s testimony.

Even assuming that the jury based its finding of guilty solely on circumstantial evidence, we are satisfied that there exists sufficient evidence to support Johnson’s conviction. To support the verdict, circumstantial evidence must exclude only reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Under this rule, the state is not required to remove every possibility of innocence of the crime charged. Ross v. State, 214 Ga. App. 697, 698 (448 SE2d 769) (1994).

Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the jury rationally could have found that the circumstantial evidence excluded every reasonable hypothesis except that of the defendant’s guilt of voluntary manslaughter; the jury was authorized by the evidence presented to exclude other possible hypotheses as unreasonable. Ross, supra at 699. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Johnson was guilty of voluntary manslaughter. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Johnson asserts that the trial court erred in failing to give her requested charge on accident. As the trial court properly refused to give the requested instruction, this contention is without merit.

Johnson’s admission in open court that she armed herself with a revolver which was loaded because she thought Mathis would see the gun and leave “was not even slight evidence that [s]he acted accidentally, with ‘no criminal scheme or undertaking, intention, or criminal negligence.’ OCGA § 16-2-2.” Johnson v. State, 223 Ga. App. 294, 295 (2) (477 SE2d 439) (1996); compare Brooks v. State, 262 Ga. 187, 188 (3) (415 SE2d 903) (1992). Further, Johnson did not testify that she believed herself to be in imminent danger of death or serious bodily injury before she armed herself. By arming herself to enforce her order that Mathis leave the trailer, Johnson showed utter disregard for Mathis’ safety and criminal negligence that precluded a charge on accident. See Stewart v. State, 261 Ga. 654 (2) (409 SE2d 663) (1991).

Even assuming without deciding that the requested accident charge was both authorized by and adequately adjusted to the evidence, it is not complete. See Roberson v. State, 265 Ga. 658, 661 (4) (461 SE2d 212) (1995). The requested charge, which purports to be based on the Suggested Pattern Jury Instructions for Criminal Cases, fails to charge the jury that any evidence as to misfortune or accident should be considered by the jury in connection with all other evidence in the case. This is a substantial component of the suggested pattern jury instruction on accident or misfortune. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, Part 3, Sec. M, pp. 31-32. As the request to charge was incomplete, the trial court did not err in refusing to give it. Requests to charge must be entirely correct and accurate. See Heffernan v. Home Depot U.S.A., 226 Ga. App. 167, 168 (2) (486 SE2d 51) (1997).

The jury was properly charged that they had to find the killing intentional in order to convict the defendant of voluntary manslaughter. See Brooks, supra at 189 (3). As the jury believed Johnson guilty of voluntary manslaughter, it could not have believed Mathis’ death to be the result of accident. See generally Connor v. State, 268 Ga. 656, 658 (3) (492 SE2d 669) (1997).

3. Johnson contends that her defense counsel was inadequate. Applying the two-prong test and the presumptions regarding counsel’s performance found in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), we find this contention is not supported by the record.

(a) Johnson’s contention that her lawyer failed to file any discovery or other pretrial motions is factually inaccurate. Cursory examination of the record reveals that Johnson’s counsel filed a discovery motion to produce her oral and written statements and to furnish a copy of any scientific reports or tests in the prosecution’s possession. He also filed a request for discovery of exculpatory information, a demand for a list of witnesses, and requests for jury instructions. We find no deficiency in trial counsel’s performance in the pretrial investigative stage of this case.

(b) Johnson claims her counsel was ineffective as he was not prepared to challenge the admission in evidence of the spent cartridge and the cartridge preceding it which were found in the cylinder of the pistol. However, she fails to present any conceivable theory which would have precluded the admission in evidence of these two evidentiary items. The Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value; evidence of doubtful relevance or competency should be admitted and its weight left to the jury. See Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395) (1990). If evidence is duly admissible under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evidentiary theories. See Boatright v. State, 192 Ga. App. 112, 116 (6) (385 SE2d 298) (1989). It is not deficient to fail to assert a frivolous objection. See Pendleton v. State, 184 Ga. App. 358, 359-360 (1) (361 SE2d 663) (1987). Johnson has failed to overcome the strong presumption that her trial counsel’s performance was not deficient. See Luallen v. State, 266 Ga. 174,176 (3) (a) (465 SE2d 672) (1996).

(c) Johnson claims that her counsel’s performance was inadequate because he did not, prior to trial, challenge the admission of her pretrial statements. See generally Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). This claim is without merit. The lack of a Jackson-Denno hearing is not prejudicial per se, and counsel may, in appropriate circumstances, engage in a reasonable trial strategy to forgo such a hearing. See, e.g., Hightower v. State, 227 Ga. App. 74, 79 (d) (487 SE2d 646) (1997) (physical precedent only). Johnson has made no showing on appeal that her statements were inadmissible. Further, the trial court charged the jury on the issue of admissibility of a defendant’s post-arrest statement, and Johnson enumerated no error as to this charge. See also Hubbard v. State, 224 Ga. App. 614, 615 (481 SE2d 601) (1997). In the absence of contrary evidence, defense counsel’s actions are presumed to be part of sound trial strategy. See Thomas v. State, 268 Ga. 135, 139 (12) (485 SE2d 783) (1997).

(d) Johnson asserts that her counsel was inadequate because he failed to have witnesses available to lay the foundation for admission of the GBI crime lab report. She argues that this failure caused her to be unable to show that Mathis had cocaine and other drugs in his system at the time he allegedly attacked her and to establish that Mathis was large in size and weighing in excess of 280 pounds.

Decided January 21, 1999.

Straughan & Straughan, William T. Straughan, for appellant.

Timothy G. Vaughn, District Attorney, for appellee.

We question the probative value of evidence that Mathis had drugs in his system at the time of the incident. Johnson did not affirmatively testify that she believed herself in imminent danger of death or serious bodily injury from Mathis’ attack, but rather, that she armed herself so that he would leave her trailer. At trial, Johnson testified that Mathis was smoking marijuana and using “dope” just before the incident. She testified that Mathis was a medium-sized man and that he was a little taller and much larger than she. The medical examiner testified that Mathis was well-built, well-nourished, weighed 290 pounds and was 73 inches tall; he had muscular extremities. Pretermitting the issue whether trial counsel’s performance was deficient in failing to obtain the admission of the crime lab report is whether counsel’s performance was prejudicial to her defense. See generally Strickland, supra. Johnson has failed to show a reasonable probability that the result of the proceedings would have been different if the crime lab report had been admitted. See Cofield v. State, 204 Ga. App. 776, 778 (1) (420 SE2d 597) (1992).

(e) Johnson’s contention that the cumulative effect of trial counsel’s performance establishes inadequacy of counsel also is without merit. The cumulative error doctrine is not recognized in Georgia. Carl v. State, 234 Ga. App. 61, 65 (2) (g) (506 SE2d 207) (1998). Each claim of inadequacy must be examined independent of other claims, as we have done, utilizing the two-prong standard of Strickland. Id.

Judgment affirmed.

Smith and Barnes, JJ, concur.


text:
    A98A2383.
    SANTANA v. THE STATE.
    (510 SE2d 916)
   Johnson, Chief Judge.

Jason Dennis Santana was found guilty of possessing more than one ounce of marijuana in violation of the Georgia Controlled Substances Act. He appeals. We affirm.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that Santana was arrested at the Atlanta Airport following a customs search upon his arrival from Jamaica. One parcel of luggage that Santana presented for inspection and claimed to be his contained more than ten pounds of marijuana. The luggage bore two identification tags handwritten by Santana. These tags contained Santana’s name, home address and home telephone number. The luggage also had an airline baggage claim tag that contained Santana’s name, flight number and ticket number. The corresponding baggage claim check was attached to Santana’s airline ticket, which was in his possession.

During an interview, Santana claimed the luggage and the marijuana were his. He stated that a man in Jamaica gave him the marijuana. However, Santana later claimed that the luggage belonged to his traveling companion and that he had no idea how his handwritten baggage identification tags became attached to the suitcase. He had no idea how the airline-issued baggage claim tag with his name and airline ticket number became attached to the parcel containing marijuana. He also had no idea how the matching claim check for the airline-issued baggage claim tag became attached to his ticket envelope.

1. Santana contends the trial court erred in excluding the testimony of Lorene Chandley. At trial, Santana’s counsel told the court that Chandley would testify that she dated David Weinstein, the individual with whom Santana allegedly traveled to Jamaica. Chandley would testify that on an occasion when she and Weinstein went to Jamaica, she saw Weinstein switch bags with an apparently unsuspecting passenger. When she investigated further, she formed a belief that Weinstein was smuggling marijuana from Jamaica. She further believed that Weinstein set up Santana on this occasion. The trial court excluded her testimony as irrelevant.

While a defendant is entitled to introduce relevant and admissible testimony showing that another person committed the crime for which he is being tried, “the proffered evidence must raise a reasonable inference of the defendant’s innocence, and must directly connect the other person with the corpus delicti, or show that the other person has recently committed a crime of the same or similar nature. [Cits.]” Klinect v. State, 269 Ga. 570, 573 (3) (501 SE2d 810) (1998). Chandley’s proffered testimony regarding Weinstein’s involvement in drug smuggling and his “setting up” Santana is mere speculation. She had no knowledge of any of the events surrounding Santana’s trip with Weinstein. In addition, Chandley’s proffered testimony dealt with an incident that occurred one and one-half years earlier. There was no evidence drugs were involved in the prior incident, and it was clear Weinstein did not know and was not traveling with the individual involved in the prior incident.

The evidence proffered did not logically tend to prove or disprove either that Weinstein committed the crime charged here or that Santana did not commit the crime. The suggestion that Weinstein may have owned the luggage and its contents was no more than supposition, based on motives which were gleaned from hearsay or inferred from prior acts which did not demand such an inference. See Guess v. State, 264 Ga. 335, 337 (5) (443 SE2d 477) (1994). Furthermore, the evidence offered would have served merely to divert the jury’s attention from the following pertinent facts of the case: Santana produced the parcel to be inspected, it contained his handwritten luggage tags and the airline bar codes, his ticket contained the airline bar code for the luggage, he admitted the luggage and marijuana were his, and he failed to offer any evidence linking Weinstein to the bag. See McNeil v. State, 202 Ga. App. 900 (415 SE2d 922) (1992). We find no error in the trial court’s exclusion of the proffered testimony.

Decided January 21, 1999.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

2. Santana enumerates as error the trial court’s refusal to continue his motion for new trial and the denial of his motion for new trial. Since Santana does not specifically address either of these two enumerations in his appellate brief, they are deemed abandoned. See Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Smith and Barnes, JJ., concur.


text:
    A98A2408.
    ROBERTSON et al. v. THE STATE.
    (510 SE2d 914)
   Johnson, Chief Judge.

Wade Robertson was indicted for possession of marijuana with intent to distribute and possession of a firearm by a convicted felon. Kelly Robertson was indicted for possession of marijuana with intent to distribute. The defendants moved to suppress evidence seized in the search of their home, claiming the officer who applied for the search warrant omitted from his affidavit material information regarding the reliability of the informant upon whose information the affidavit was based. We granted the Robertsons’ application for interlocutory appeal from the order denying their motion to suppress.

During the hearing on the motion to suppress, the police officer who applied for the search warrant testified that he arrested the informant for driving while under the influence of drugs or alcohol. While the DUI charge was pending, the informant telephoned the officer and told him he knew someone who was selling narcotics and that he was willing to give the officer the information if the officer would “help” him with the DUI charge. The officer knew that the informant had been convicted of burglary and possession of marijuana and was on probation or parole. The officer said he could not promise the informant anything, but he would make the judge aware of his cooperation and assistance. The informant then gave the officer information resulting in three arrests, including the two arrests at issue here.

According to the officer, the informant told him that he had been in the Robertsons’ residence and saw what he described as two pounds of marijuana in a desk drawer. The informant was “enraged” when he made the call, telling the officer that he was angry at Wade Robertson because he had made a sexual advance at the informant’s “old lady.”

The officer swore out an affidavit for search warrant based on the informant’s information. Specifically, the officer stated in the affidavit that a previously reliable source told him that he had been in Wade Robertson’s home and saw there a quantity of marijuana. The officer wrote that Robertson was “representing the material to be marijuana, for sale.” The officer also indicated that the informant had given him information about a drug offense three months earlier which resulted in an arrest. The officer further stated that he corroborated the informant’s information by driving by the Robertsons’ residence and observing that the exterior of the premises and the car parked out front matched the description given by the informant. Moreover, the officer confirmed with the county “911” system that Wade Robertson lived there. The officer did not include in the affidavit any information about the informant’s criminal history, the informant’s anger with Wade Robertson, or the fact that the informant was attempting to get “help” from the police on a pending criminal charge. The affidavit was the only information provided to the issuing magistrate.

The Robertsons contend that, by failing to give the magistrate any of this information about the informant, the officer denied the magistrate the opportunity to accurately assess the informant’s reliability and veracity. We agree.

Probable cause may be predicated on an informant’s tip only if, under the totality of the circumstances, including the informant’s veracity and basis of knowledge, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Smith v. State, 218 Ga. App. 12, 14 (460 SE2d 114) (1995). “While establishment of the informant’s veracity and basis of knowledge is no longer an absolute requirement since [Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983)], veracity and basis of knowledge are still major considerations in the probable cause analysis, and this court continues to hold that an affidavit submitted in support of a search warrant must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.” (Citations and punctuation omitted.) Id.; State v. Teague, 192 Ga. App. 839, 840 (386 SE2d 718) (1989).

Because an informant’s reliability is a major consideration, officers seeking warrants should provide the magistrate with any information they have relevant to an informant’s reliability or motivation, including matters such as criminal records and payments made to the informant. See Perkins v. State, 220 Ga. App. 524, 525 (2) (469 SE2d 796) (1996). If material information is knowingly or recklessly omitted from the affidavit, the reviewing court should include it with other information provided the magistrate to determine whether probable cause to issue the warrant existed. Id.; see Hockman v. State, 226 Ga. App. 521, 523 (1) (487 SE2d 102) (1997) (physical precedent only).

The officer’s failure to inform the magistrate about the informant’s criminal background, pending criminal charges and the possible revocation of his probation or parole, and his personal animosity toward Wade Robertson resulted in the magistrate being deprived of the opportunity to independently determine the reliability of the informant. Compare Kessler v. State, 221 Ga. App. 368, 370-371 (471 SE2d 313) (1996), where the officer knowingly omitted only the fact that the informant was a felon.

The material omissions here are not offset by any independent corroboration by the officer of illegal activity. In order for the corroboration to be meaningful enough to show reliability, the information corroborated must include a range of details relating not just to easily obtained facts and conditions, but to future actions of third parties not easily predicted. See State v. Bryant, 210 Ga. App. 319, 321 (436 SE2d 57) (1993). The information corroborated generally needs to be a prediction of future behavior, or something similar, that is inside information not available to the general public; otherwise, the corroboration is not sufficiently meaningful to show reliability. Id. The minor corroboration here, namely regarding the outward appearance of the house and the presence of a parked car, is not sufficient to show reliability. See id.; Teague, supra. If we consider the information omitted from the affidavit along with that included in the affidavit, probable cause did not exist for the issuance of the warrant. Because the magistrate did not have a substantial basis for concluding that probable cause existed, the trial court erred in denying the Robertsons’ motion to suppress. See Pailette v. State, 232 Ga. App. 274, 276 (501 SE2d 603) (1998).

Judgment reversed.

Smith and Barnes, JJ., concur.

Decided January 21, 1999.

Gilbert J. Murrah, for appellants.

J Brown Moseley, District Attorney, Robert R. Auman, Assistant District Attorney, for appellee.


author: Judge Harold R. Banke.

text:
    A99A0209.
    HAYES v. THE STATE.
    (510 SE2d 912)
   Judge Harold R. Banke.

Tommy Lee Hayes was convicted of one count of operating a motor vehicle after being declared an habitual violator. On appeal, he enumerates two errors.

At trial, the State sought to admit Hayes’ entire driving record, notice of his habitual violator status, and a copy of the return receipt showing that Hayes signed for the notice. Hayes objected to admission of his driving record and the notice because it listed the three driving offenses which provided the basis for his habitual violator status. The State withdrew the driving record, and the trial court admitted the notice and acknowledgment of receipt. Held:

1. Hayes maintains that the trial court erred in admitting the notice which contained evidence of his prior driving record. We disagree.

In this prosecution, the State was required to prove that Hayes had been declared an habitual violator, his license was revoked, he received notice of the revocation, and he operated a motor vehicle in this State without a valid license. Ragan v. State, 264 Ga. 190, 191 (1) (442 SE2d 750) (1994). While the admission of Hayes’ entire driving record would have been error, we cannot say the admission of the notice, which listed only the three offenses on which his habitual violator status was based, was an abuse of discretion. Id.; Keller v. State, 231 Ga. App. 546, 548 (4) (499 SE2d 713) (1998). Moreover, Hayes did not demonstrate how its admission prejudiced him and we fail to see that it did. Ragan, 264 Ga. at 192 (3).

2. Hayes contends that reversal is required because the trial court impermissibly shifted the burden of disproving his justification defense during argument on the State’s objection during closing that Hayes misstated the burden of proof on justification. We disagree.

Hayes’ sole defense was that his driving was justified, notwithstanding his habitual violator status, because he was traveling to Augusta for medical tests at the time of his arrest. The record shows that during closing Hayes inquired “What could the State have done to disprove Mr. Hayes’ testimony? Well let’s see, you got the — could’ve brought in a doctor.” At that point, the State objected, correctly arguing that while it bore the burden of disproving the affirmative defense, it did not have to disprove Hayes’ testimony that he was in pain. See Austin v. State, 218 Ga. App. 90, 91 (2) (460 SE2d 310) (1995).

Decided January 21, 1999.

John D. Staggs, for appellant.

Tommy L. Hayes, pro se.

Richard A. Malone, District Attorney, for appellee.

During argument on this issue, the trial court erroneously stated, “The State does not have to disprove the justification.” Id. Shortly thereafter, the court also agreed with Hayes that the State bore the burden of disproving the justification defense. Notwithstanding the trial court’s initial and apparently inadvertent misstatement, during the jury charge the trial court correctly instructed that the State bore the burden of disproving the justification defense beyond a reasonable doubt. Taylor v. State, 231 Ga. App. 73, 74 (2) (498 SE2d 552) (1998); Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed.), p. 35.

We note that the difficult-to-follow, contradictory statements made during argument on State’s objection were not directed at the jury. Considering that fact, the evidence, and the trial court’s subsequent clear and correct instructions on the proper rule of law specifically directed at the jury, we find that the error, standing alone, was harmless. Reddin v. State, 223 Ga. App. 148, 153 (6) (476 SE2d 882) (1996).

Judgment affirmed.

Blackburn and Barnes, JJ, concur.


text:
    A98A2136.
    HENDERSON v. THE STATE.
    (510 SE2d 879)
   Judge Harold R. Banke.

Sandy W. Henderson challenges the denial of his plea in bar alleging double jeopardy violations.

Henderson was originally charged in Harris County Superior Court with the offenses of habitual violator, driving under the influence (“DUI”), and open container. After learning that one of the DUIs on Henderson’s record was void, the State consented to the entry of an order of nolle prosequi on the habitual violator charge. The State also agreed to transfer the remaining misdemeanor charges, of DUI and open container, to probate court for disposition.

When Henderson appeared for trial in probate court, he filed various motions to suppress and in limine. He also moved to quash the DUI charge, arguing that the accusation failed to allege the charge with sufficient specificity to allow him to properly prepare his defenses. The State did not oppose the motion to quash, but shortly after that motion was asserted, it moved to transfer the case back to superior court, postponing trial on the open container charge. The parties subsequently filed written briefs on this issue.

Decided January 12, 1999

Reconsideration denied January 22, 1999

Virgil L. Brown & Associates, Virgil L. Brown, Larkin M. Lee, Eric D. Hearn, Bentley C. Adams III, for appellant.

Between the time that Henderson filed his motions and the State responded to the motion to quash, it is undisputed that three witnesses were sworn. The probate judge testified that she could not remember a specific instance where she did not swear in the witnesses before hearing motions. She also testified that to save time she swore in the witnesses first so they could testify at the motions hearings as well as at trial. None of the witnesses testified.

When the probate court transferred the case back to superior court, the State indicted Henderson for DUI and open container. Henderson then filed the plea in bar at issue here. After hearing argument, the superior court summarily rejected Henderson’s double jeopardy argument, and Henderson lodged this appeal. Held:

Double jeopardy bars prosecutions in bench trials when the accused was previously prosecuted for the same crime based upon the same material facts and the initial trial was improperly terminated after the first witness was sworn but before findings were rendered by the trier of facts. OCGA § 16-1-8 (a) (2).

Here, the initial proceeding was not recorded. However, the probate court’s order on Henderson’s motion to quash specifies that the trial had not yet started. Moreover, the transcript in superior court on Henderson’s plea in bar indicates that the probate judge who presided over the initial proceeding was hearing motions when the witnesses were sworn, rather than commencing trial. In light of this evidence, we cannot say that the superior court erred in finding that the trial never commenced. See Andrew v. State, 216 Ga. App. 819, 820 (456 SE2d 227) (1995). “Contrary to defendant’s argument, the swearing of the witness does not conclusively establish that the trial had commenced because sworn testimony is often given during pretrial proceedings.” Id. In this case, jeopardy had not yet attached.

Judgment affirmed.

Johnson, C. J., and Smith, J, concur.

J. Gray Conger, District Attorney, Mark C. Post, Assistant District Attorney, for appellee.

       Although the State ordinarily does not participate in trials in probate court, an assistant district attorney appeared on its behalf at the request of an arresting officer.


text:
    A98A1992.
    PINCKNEY v. THE STATE.
    (510 SE2d 923)
   Johnson, Chief Judge.

A jury found Antone Pinckney guilty of one count of armed robbery and two counts of aggravated assault. He appeals from the convictions and the denial of his motion for new trial.

1. Pinckney contends the trial court erred in allowing the state to introduce evidence that his co-indictee pled guilty to the crimes. We agree that the trial court erred in admitting the evidence, reverse the convictions, and remand the case for a new trial.

Pinckney and Eric Overton were arrested together in connection with the armed robbery of a grocery store and the aggravated assaults of store customers and employees. The two men were jointly indicted and, before trial, Overton pled guilty to one count of armed robbery and five counts of aggravated assault. At trial, outside the presence of the jury, the state put Overton on the stand in order to see what his testimony would be, since he had indicated that he was not going to say anything if called as a witness in Pinckney’s trial.

While on the stand outside of the jury’s presence, Overton admitted that he pled guilty to armed robbery and aggravated assault, but otherwise refused to answer any questions about the crimes. The trial court instructed Overton that because he pled guilty to the offenses, he no longer had any right against self-incrimination regarding the crimes. The trial court ordered Overton to testify and informed him he could be held in contempt if he refused to answer the questions. Overton reiterated that he would not testify. The prosecutor informed the court that he would nonetheless call Overton as a witness.

When the jury returned, the prosecutor called Overton to the stand and asked him whether he pled guilty to the crimes charged in the indictment “that charged both you and Antone Pinckney with those offenses.” Overton responded that he did, but added that he was only talking about himself and no one else. The prosecutor then asked Overton what he was wearing at the time he committed the crimes and whether Pinckney was with him at the time he was arrested for the crimes. Overton refused to answer these questions and gave no other testimony.

In general, a guilty plea of a joint offender is not admissible in evidence at the trial of another joint offender. See Hendrix v. State, 202 Ga. App. 54, 55 (4) (413 SE2d 232) (1991), overruled on other grounds, Duke v. State, 205 Ga. App. 689, 690 (423 SE2d 427) (1992); Neal v. State, 160 Ga. App. 834, 837 (3) (288 SE2d 241) (1982). See generally OCGA § 24-3-52. This rule does not apply where the joint offender is present at trial and testifies as a witness subject to cross-examination. See Brown v. State, 132 Ga. App. 200 (2) (207 SE2d 682) (1974); Mindock v. State, 187 Ga. App. 508 (2) (370 SE2d 670) (1988) (physical precedent only). Nor does it apply where the joint offender’s guilty plea is admitted with instructions that it not be used as evidence of the defendant’s guilt. See Hendrix, supra; Greer v. State, 188 Ga. App. 808 (1) (374 SE2d 337) (1988).

Although Overton briefly took the stand as a witness for the state, the trial court did not allow Pinckney to conduct any cross-examination of Overton. Thus, the testimony here did not come within the first exception. We note that the testimony Overton did give only concerned the guilty plea. Had he testified about relevant matters besides the plea, and had he been subject to cross-examination, his credibility could have been challenged and the danger of prejudice would not be so great. See James v. State, 196 Ga. App. 569, 570 (396 SE2d 306) (1990).

Furthermore, the trial court in this case gave no limiting instruction at the time the testimony was givén and during the charge instructed the jury that it was not required to use the fact that the co-indictee pled guilty against Pinckney. That is not the same as instructing the jury that the testimony cannot be used as substantive evidence of Pinckney’s guilt. See generally Foster v. State, 178 Ga. App. 478, 479 (1) (343 SE2d 745) (1986) (physical precedent only). The instruction given was not sufficient to provide Pinckney with a fair trial. Compare Hendrix, supra.

Under the circumstances presented in this case, it is clear that the purpose of the testimony was to increase the probative value of other testimony tending to show that Pinckney was the other of the two persons who committed the crimes. See Dorminy v. State, 178 Ga. App. 653, 654 (344 SE2d 475) (1986). The use of such testimony to that end is impermissible. Id. at 655; see generally Mindock, supra.

Even given the substantial evidence of Pinckney’s guilt, we do not agree with the state that the error was harmless. To let the jury know that Pinckney’s co-indictee pled guilty is extremely prejudicial and denies him his right to a fair trial; the only inference to be drawn from Overton’s testimony is that because his co-indictee pled guilty, Pinckney must also be guilty, since he was apprehended at the same time and place as Overton, who admitted being one of the two men who committed the crimes. See Mindock, supra. Pinckney’s conviction must be reversed. See Boatwright v. State, 193 Ga. App. 141, 142 (2) (387 SE2d 386) (1989). Under these circumstances, it was error to deny Pinckney’s motion for a new trial. The case is remanded for a new trial.

Decided January 22, 1999.

Bruce S. Harvey, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Keith A. Carnesale, Assistant District Attorneys, for appellee.

2. In light of the foregoing, we do not reach Pinckney’s remaining enumerations of error.

Judgment reversed and case remanded for new trial.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


author: Andrews, Judge.

text:
    A97A1002, A97A1334.
    CITY OF ARCADE v. EMMONS et al.
    (510 SE2d 925)
    Decided January 25, 1999.

      Donna S. Golden, for appellant.

      Decker & Hallman, F. Edwin Hallman, Jr., David C. Moss, Bren

      nan & Wasden, Christopher D. Elrod, Scott R. Tolbert, for appellee.
   Andrews, Judge.

In Emmons v. City of Arcade, 270 Ga. 196 (507 SE2d 464) (1998), the Supreme Court affirmed in part and reversed in part the judgment of this Court in City of Arcade v. Emmons, 228 Ga. App. 879 (494 SE2d 186) (1997), which was a consolidation of the appeals in Case Nos. A97A1002 and A97A1334. As to the issues raised in Case No. A97A1002, the Supreme Court partially reversed this Court and affirmed the judgment of the trial court. As to Case No. A97A1334, the Supreme Court reversed this Court’s conclusion that the trial court was not authorized to enjoin the City from holding a hearing pursuant to OCGA § 12-8-24 (d) and affirmed the trial court on that issue. The Supreme Court did not address this Court’s reversal of the trial court’s findings in Case No. A97A1334 with respect to its contempt order and the award of attorney fees against the City for bringing the contempt motion. Accordingly, the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed in Case No. A97A1002. Judgment affirmed in part and reversed in part in Case No. A97A1334.

Ruffin and Eldridge, JJ, concur.

Ernest Depascale, Jr., amicus curiae.


author: Eldridge, Judge.

text:
    A99A0061.
    TUKES v. THE STATE.
    (511 SE2d 534)
   Eldridge, Judge.

Following a bench trial in the Superior Court of Butts County, the trial judge found Norbert Tukes guilty of trafficking in cocaine. He appeals from the conviction, and we affirm.

1. Tukes first contends that the stop of his vehicle was unsupported by probable cause. We disagree.

The record shows that the arresting officer in this case was on routine traffic patrol. The officer passed Tukes’ car going in the opposite direction, and he observed that Tukes was not wearing a seat belt. The officer turned around and followed Tukes’ vehicle. He observed that Tukes’ county decal was partly obscured by the license plate’s frame. As the officer followed Tukes’ car, the vehicle “drifted from — turned from the slow lane to the middle lane in traffic, vehicles coming up from the rear traveling to his left and then went back into the slow lane without signaling.” The officer then conducted a traffic stop.

“As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. [Cits.]” Whren v. United States, 517 U. S. 806, 810 (116 SC 1769, 135 LE2d 89) (1996); Hines v. State, 214 Ga. App. 476, 477 (448 SE2d 226) (1994). In this case, any one of the traffic violations observed by the officer would have provided probable cause to effectuate a stop of Tukes’ car.

Moreover, “[a] trial court’s order on a motion to suppress will not be disturbed if there is any evidence to support it, and the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. [Cit.]” Hobdy v. State, 222 Ga. App. 625, 626 (475 SE2d 686) (1996). The trial court specifically found that the traffic stop was not pretextual and that there were other vehicles in the immediate area of Tukes’ vehicle when he made the unsafe lane change without using a signal. Compare Bowers v. State, 221 Ga. App. 886, 887-888 (473 SE2d 201) (1996). As these findings are supported by the record, the trial court’s denial of the motion to suppress based upon an allegedly improper traffic stop was not clearly erroneous.

2. Next, Tukes challenges (a) the search of his person as exceeding the scope of a Terry search, and (b) the seizure of the cocaine as pursuant to an illegal arrest. This challenge is meritless.

After the proper stop of Tukes’ vehicle, the officer approached the car and asked Tukes for his license and proof of insurance. Tukes was “acting real fast, his speech was kind of nervous and stammering.” As the officer looked through the driver’s window, he immediately saw a large, bulky object protruding from the inside of Tukes’ pants and covered by his shirt; the object was apparent even when Tukes was sitting behind the wheel of the car. The officer testified that “I thought I was looking at something that Mr. Tukes was so concerned about that he had to hide it under his pants and that I realized that the possibilities are endless. The major safety concern would be a weapon, but it could be contraband, it could be other.” The officer asked Tukes to exit the vehicle.

From the record it appears that Tukes is an obese man, and the bulge from the concealed object became “very obvious” when Tukes exited the car. The object bounced when Tukes walked. The officer asked Tukes if he was concealing something in his pants, and Tukes replied “no.” The officer knew this to be a lie. The officer patted the bulging object. The nature of the object as contraband became immediately apparent to the officer. The officer testified that, while he could not narrow down the specific drug concealed in Tukes’ pants, he knew that the concealed object was contraband based on: (1) his many years of experience in recognizing and recovering contraband; (2) Tukes’ nervous demeanor; (3) Tukes’ obviously false assertion that an object was not concealed in his pants; (4) the package-like feel of the object; and (5) the fact the officer had “encountered similar bulky objects like that[.]”

Thereafter, the officer secured Tukes with handcuffs. From Tukes’ pants, the officer removed a taped package containing 237.7 grams of 81 percent pure cocaine.

(a) “[A] law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted.” (Citations and punctuation omitted.) Hodges v. State, 217 Ga. App. 806, 808 (2) (460 SE2d 89) (1995).

We find that the officer’s initial observation of the bulky object so obviously concealed in Tukes’ pants while Tukes was still behind the wheel, together with Tukes’ nervous demeanor, provided a sufficient basis for the officer to remove him from the vehicle and conduct a patdown of his person for the officer’s safety. Thompson v. State, 230 Ga. App. 131, 132-133 (495 SE2d 607) (1998). Thus, in this case, the Terry patdown was lawful.

Further, under what has been deemed the “plain feel” doctrine, “[i]f a police officer lawfully pats down a suspect’s outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.” Minnesota v. Dickerson, 508 U. S. 366, 375-376 (113 SC 2130, 124 LE2d 334) (1993); Seaman v. State, 214 Ga. App. 878 (449 SE2d 526) (1994). Accordingly, contraband identified through an officer’s sense of touch in the course of a lawful Terry patdown may be seized. Howard v. State, 220 Ga. App. 579, 581-582 (469 SE2d 746) (1996).

Here, the officer testified that, based upon his experience as well as the other factors enumerated above, he knew immediately on touching the bulky object concealed in Tukes’ pants that the object was contraband. It was unnecessary for the officer to “conclusively identify” what type of drug Tukes was carrying in order for the “plain feel” doctrine to make the seizure of the contraband lawful. Id. at 582. “Under the ‘plain feel doctrine,’ the officer was entitled to seize the item and the evidence was properly admitted. He was not compelled to ignore what was apparent to him upon feeling the object and to walk away instead. [Cits.]” Andrews v. State, 221 Ga. App. 492, 493 (471 SE2d 567) (1996). The trial court determined that the seizure of the cocaine was lawful. Based on the record, we do not find such determination clearly erroneous, and the motion to suppress was properly denied.

(b) Contrary to Tukes’ assertion, under the facts of this case, it was proper for the officer to secure Tukes prior to retrieving the contraband from his clothing. Assuming, without deciding, that Tukes was arrested when the officer secured him, the officer knew that Tukes was concealing contraband. “A warrantless arrest is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.” (Citations and punctuation omitted.) Brown v. State, 190 Ga. App. 38, 40 (378 SE2d 357) (1989). By its nature, knowledge sufficient to satisfy the “plain feel” doctrine, i.e., knowledge that a concealed object is contraband, provides sufficient probable cause to arrest. In this case, “[t]he facts and circumstances within the knowledge of the officer [ ] were sufficient to warrant a prudent man in believing that [Tukes] had committed an offense. [Cits.]” Clark v. State, 212 Ga. App. 486, 487-488 (441 SE2d 885) (1994). There was no error.

Decided January 25, 1999

Carey & Dobson, Emerson Carey, Jr., Garland & Milam, Richard G. Milam, for appellant.

Tommy K. Floyd, District Attorney, for appellee.

3. As the officer turned Tukes around in order to secure him with handcuffs, he referenced the package concealed in Tukes’ pants, asking “Marijuana?” Tukes allegedly replied “Cocaine.” Tukes contends that this statement was made without benefit of Miranda warnings and thus was improperly admitted at trial.

Even assuming that the above statement could be considered an in-custody statement made without benefit of Miranda, we do not find reversible error in its admission. Immediately after the statement was made, the officer determined that the concealed package contained cocaine, thereby making the statement simply cumulative of that inevitable discovery. Further, since the cocaine was recovered from the inside of Tukes’ pants, the contested statement was also cumulative as to knowledge and intent. Accordingly, “[t]his enumeration provides no grounds for reversal as any error in admission of these statements was not only cumulative of other admissible evidence, it is harmless because of overwhelming evidence of defendant’s guilt.” (Citation omitted.) Wright v. State, 216 Ga. App. 486 (455 SE2d 88) (1995).

Judgment affirmed.

Pope, P. J., and Smith, J, concur.

       See OCGA §§ 40-8-76.1; 40-2-31 (e); 40-6-123 (b); Buffington v. State, 229 Ga. App. 450 (494 SE2d 272) (1997); Temples v. State, 228 Ga. App. 228 (491 SE2d 444) (1997). See also State v. Wright, 221 Ga. App. 202, 204 (3) (470 SE2d 916) (1996).

         Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

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


text:
    A99A0220.
    SURGIJET, INC. v. HICKS.
    (511 SE2d 194)
   Eldridge, Judge.

Michael S. Hicks, appellee, filed suit against appellant SurgiJet, Inc. (“SurgiJet”), alleging that SurgiJet breached their employment contract by failing to pay him the wages to which he was entitled through the date of his resignation. SurgiJet answered, denied that it owed Hicks any back wages, and filed a counterclaim seeking reimbursement for overpayment of wages to Hicks during the term of Hicks’ employment. After a bench trial, the trial court entered judgment in favor of Hicks in the principal amount of $20,500, plus $2,934.29 pre-judgment interest, calculated at seven percent, and the cost of the action. SurgiJet was not awarded anything on its counterclaim. SurgiJet appeals from the entry of the judgment.

1. SurgiJet’s enumeration of error and brief were not timely filed. Hicks has filed a motion to dismiss based on the untimely filing. “While we exercise our discretion in this instance to deny [Hicks’] motion to dismiss, we urge compliance with the mandates of our rules in this and other matters, and point out the hazards including dismissal of appeals and contempt citations which await those who fail to do so.” Steedley v. Huntley’s Jiffy Stores, 209 Ga. App. 23 (432 SE2d 625) (1993).

2. SurgiJet alleges that the trial court erred in proceeding with a bench trial without an express or implied waiver of SurgiJet’s right to a trial by jury.

“In civil suits, the right to trial by jury may be implicitly waived by a party’s conduct. One may waive the right to trial by jury by conduct indicative of the fact that the right is not asserted.” (Citations and punctuation omitted.) Bonner v. Smith, 226 Ga. App. 3, 5 (485 SE2d 214) (1997). “A party to litigation cannot voluntarily participate in a trial before a judge without a jury, proceed without reservation to have the trial court hear the case without the intervention of a jury, not object to the trial court’s rendering judgment on the merits, and, then, after an unfavorable judgment is rendered, set aside the judgment because no jury trial was had.” (Citations and punctuation omitted.) Goss v. Bayer, 184 Ga. App. 730, 731 (362 SE2d 768) (1987).

In this case, no written demand for jury trial was made by SurgiJet prior of the call of the case for trial. When this case was called for trial, SurgiJet announced ready, but requested a postponement due to an absent nonparty witness, who SurgiJet alleged was unable to appear for medical reasons. When the motion for continuance was denied, SurgiJet did not request a jury trial and made no objection to proceeding to trial without a jury. SurgiJet waived its “right to a jury trial by [its] conduct in participating in the bench trial and [its] silence in failing to protest or object.” (Citation and punctuation omitted.) Goss v. Bayer, supra at 732.

3. SurgiJet alleges that the trial court erred in awarding prejudgment interest on the principal sum because there was no evidence presented of a demand and refusal to pay the principal sum.

This is an action for breach of contract to recover unpaid wages. The amount of wages due Hicks was contested by the defendant. Therefore, recovery of pre-judgment interest by Hicks would be pursuant to OCGA § 13-6-13. See Braner v. Southern Trust Ins. Co., 255 Ga. 117 (335 SE2d 547) (1985). OCGA § 13-6-13 provides for the recovery of pre-judgment interest as follows: “In all cases where an amount ascertained would be the damages at the time of the breach, it may be increased by the addition of legal interest from that time until the recovery.” Contrary to SurgiJet’s assertion, under the plain wording of the statute, it was not necessary for Hicks to have made a demand for the payment of the salary and to have been denied payment by SurgiJet, in order for Hicks to be entitled to recover prejudgment interest.

An award of pre-judgment interest under OCGA § 13-6-13 was within “the discretion of the trial judge as the trier of fact in this bench trial. [Cits.]” CRS Sirrine v. Dravo Corp., 213 Ga. App. 710, 719 (3) (445 SE2d 782) (1994); see Pulte Home Corp. v. Woodland Nursery & Landscapes, 230 Ga. App. 455 (496 SE2d 546) (1998). We find no abuse of discretion.

4. Lastly, SurgiJet alleges that the trial court abused its discretion in forcing this case to trial only four months after the answer was filed.

OCGA § 9-11-40 (a) provides that all civil cases are “triable any time after the last day upon which defensive pleadings were required to be filed therein; provided, however, that the court shall in all cases afford to the parties reasonable time for discovery procedures, subsequent to the date that defensive pleadings were required to be filed [.]” SurgiJet contends that it made a written request for continuance prior to trial and requested a continuance because it had not completed discovery. However, the record does not support SurgiJet’s contention that a written request for continuance was made in this case. SurgiJet attached to its brief a copy of its motion for continuance, which does not show on its face that it was ever filed. Even if this exhibit was sufficient to show that a written request for continuance was made, we could not consider it because exhibits to briefs on appeal are not part of the record and cannot be considered. In the Interest of J. C. H, 224 Ga. App. 708 (482 SE2d 707) (1997); Jones v. State, 224 Ga. App. 340, 341 (2) (480 SE2d 618) (1997).

Further, SurgiJet did not orally request a continuance based on incomplete discovery when the case was called for trial. As set forth in Division 2, SurgiJet announced ready for trial with the exception of an unavailable out-of-state witness. In support of its motion for continuance, SurgiJet submitted to the trial court a letter from the witness stating that he was unable to attend because of medical reasons. The letter was not filed of record or admitted into evidence and is not part of the record on appeal. The trial court gave SurgiJet’s counsel an opportunity to contact the witness and/or the doctor to obtain a statement from the doctor saying that, in his opinion, the witness was unable to attend trial. SurgiJet’s counsel was unable to contact the witness or the doctor, and the trial court denied the motion.

“ A motion for a continuance based on an absent witness is addressed to the sound legal discretion of the trial court and no error will be assigned unless it appears that the trial court abused that discretion in passing on the motion.’ United Motor Freight Terminals v. Driver, 75 Ga. App. 571, 572 (44 SE2d 156) (1947). OCGA § 9-10-160 provides that all applications for continuances based upon the absence of a witness shall set forth eight different requirements. Where any one of these statutory requirements is not met, there is no abuse of the trial court’s discretion to deny a continuance. Carroll v. Crawford, 218 Ga. 635 (129 SE2d 865) (1963) (construing an earlier version of OCGA § 9-10-160). One of the eight statutory requirements is that the absent witness does not reside outside of the state. OCGA § 9-10-160 (3). As [SurgiJet] readily admit[s] that [the absent witness] resided outside of Georgia, it was not error for the trial court to deny [SurgiJet’s] request for a continuance.” Tucker v. Signature Flight Support-Savannah, 219 Ga. App. 834, 835 (466 SE2d 694) (1996). We find no abuse of discretion in the trial court’s denial of SurgiJet’s motion for continuance.

Decided January 25, 1999.

John R. Jackson, for appellant.

A. Joseph Nardone, Jr., for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


text:
    A99A0319.
    SIMMONS v. THE STATE.
    (510 SE2d 925)
   Eldridge, Judge.

The defendant, Moses Simmons, was convicted by a Chatham County jury for the offense of armed robbery. He appeals from the denial of his motion for new trial.

1. The defendant contends the trial court erred in denying his motion for a directed verdict of acquittal and that the evidence adduced at trial was insufficient to support his conviction for armed robbery.

“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. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation and punctuation omitted.) Wright v. State, 228 Ga. App. 779 (1) (492 SE2d 680) (1997).

Viewed in this light, the evidence shows the following: During the very early morning hours of Sunday, June 29, 1997, Darren Williams was walking home from his mother’s house. Several blocks from his mother’s house, a car with two occupants passed Williams going in the opposite direction. The passenger of the car waved at Williams and Williams waved back. Williams had walked approxi-. mately another block when the same car came up behind him. The passenger door was closest to him. The defendant, who was seated in the passenger seat, jumped out of the car, pulled a gun from his pants, and pointed the gun at Williams demanding that he “give it up.” Williams gave the defendant the contents of his pockets, which consisted of $40, a pager, and a set of keys.

When Williams reached his home, he called the police and reported the incident. Officer Eric Dukarski of the Savannah Police Department responded to the call from Williams. Williams was able to give Officer Dukarski the car’s tag number and a detailed description of the defendant. The tag number matched the tag number of a car stolen from Epluribus Allan on June 28, 1997, between 8:30 p.m. and 11:00 p.m., which was just hours before the armed robbery.

Williams testified that the area within which the armed robbery occurred was well lighted. There were street lights, and during the robbery, the door of the car was open and the dome light of the car was on. He was able to see the defendant clearly. Williams further testified that the defendant did not have his face covered in any manner and that, even though the defendant had on a cap with a white “C” on it, it was not pulled low over his brow and did not obstruct Williams’ vision of the defendant’s face.

At approximately 4:50 p.m. on June 29, 1997, Officer Eduardo Cartaya of the Savannah Police Department was on patrol in his marked police car looking for Allan’s stolen vehicle when he received a dispatch that shots had been fired at 327 Montgomery Crossroads, and that the vehicle involved in the incident matched the description and had the same tag number as Allan’s stolen car. The dispatcher indicated that the car was possibly en route to Chatham Garden Apartments.

When Officer Cartaya received the dispatch, he was in front of the entrance to Chatham Garden Apartments, so he pulled over and waited. Cartaya testified that about 60 to 90 seconds later, he saw the car coming south on Middleground Road and turn in Chatham Garden Apartments. Cartaya pulled in behind the car and called for back-up. Cartaya did not activate his blue lights, because he thought the suspects might be armed. Cartaya testified that the passengers of the car noticed he was following them, and the driver “suddenly hit the accelerator and sped out of the apartment complex,” running the stop sign at the entrance.

Cartaya pursued the fleeing car and “called in” the direction in which it was traveling. About a half mile north, in front of Southside Mobile Estates, the driver of the car attempted to make a U-turn and lost control of the car. The car fishtailed and went into the trailer park. The three occupants of the car jumped out of the car while it was still moving. Other police officers arrived on the scene within minutes, and the officers were able to apprehend two of the passengers, Chancey Smith and Patrick Fields. The third passenger was not apprehended.

Detective N. S. Kenny of the Savannah Police Department interviewed Chancey Smith after his arrest. In his statement, Smith stated that the defendant was the third occupant of the car. At trial, Smith testified that he, Patrick Fields, and the defendant were in the car.

Detective Larry Driver of the Savannah Police Department initially put together two photographic line-ups for Williams to view. One photographic line-up contained a picture of Patrick Fields and the other photographic line-up contained a picture of Chancey Smith. Williams was unable to identify the man who had robbed him at gunpoint from either of these two line-ups. After Detective Driver received the defendant’s name from Detective Kenny, he prepared a third photographic line-up for Williams to view. Within five to fifteen seconds after being shown the third photographic line-up, Williams identified the defendant as the man who had robbed him at gunpoint. Williams also identified the defendant in court as the man who had robbed him at gunpoint.

The defendant argues that, because the stolen items or the gun were not recovered and there was evidence that Fields possessed a weapon, was riding in the stolen car, and was wearing a cap with a “C” on the day the robbery, there was insufficient evidence to convict the defendant of armed robbery. “However, these issues relate entirely to matters within the exclusive province of a jury. Determining the credibility of witnesses and resolving conflicts goes to the weight of the evidence and is for the jury’s consideration.” (Citation and punctuation omitted.) Foster v. State, 203 Ga. App. 328, 330 (416 SE2d 855) (1992). “This Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Citations and punctuation omitted.) Kapua v. State, 228 Ga. App. 193, 195 (491 SE2d 387) (1997). Viewed in the light most favorable to the verdict, the evidence was sufficient to enable a rational trier of fact to find the defendant guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided January 25, 1999

C. Jackson Burch, Emory B. Bazemore, for appellant.

Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

2. The defendant also contends the trial court erred when it denied his motion in limine and allowed evidence that the defendant was a passenger in a stolen car. The defendant argues that such evidence impermissibly injected his character into issue.

The evidence of the defendant’s presence in the stolen car was part of the circumstances surrounding the accused’s arrest. “All circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them.” (Citation and punctuation omitted.) Wilson v. State, 222 Ga. App. 818, 819 (476 SE2d 97) (1996). “Where evidence is relevant for the purpose of showing the circumstances of the arrest, it will not be excluded merely because it incidentally shows the commission of another crime. Although evidence may incidentally put character in issue or may be prejudicial, it may be admitted if otherwise relevant.” (Citations and punctuation omitted.) Franklin v. State, 224 Ga. App. 578, 579 (3) (481 SE2d 852) (1997). Here, the evidence shows that the defendant exited a stolen car and robbed Williams at gunpoint. Only hours later, during a police pursuit of the same stolen car, the defendant jumped out of the car while it was still moving. The evidence of the stolen car was, thus, relevant and admissible.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       In his enumeration of error, Simmons states that the trial court erred in denying his motion for mistrial. This appears to be a stenographic error, because in his brief, Simmons refers only to the portion of the trial transcript in which he moved for a directed verdict, and his sole argument is that the trial court erred in denying his motion for directed verdict. Simmons did not move for a mistrial at any time during the trial. Therefore, we will treat Simmons’ enumeration of error as raising the issue of whether the trial court erred in denying the defendant’s motion for directed verdict.


text:
    A98A2289.
    RAPPENECKER v. L.S.E., INC. et al.
    (510 SE2d 871)
   Judge Harold R. Banke.

Christopher Rappenecker sued L.S.E., Inc., d/b/a Whiskey River (“LSE”) for personal injuries sustained in a parking lot altercation occurring on LSE’s premises. Rappenecker appeals the summary judgment awarded to LSE.

The underlying case arose after Rappenecker accompanied two friends to LSE’s nightclub known as the Whiskey River from 9:30 p.m. to the 2:00 a.m. closing time. While at the Whiskey River, Rappenecker consumed five or six beers and three shots of tequila. When Rappenecker left LSE’s premises with his companions, he occupied the front passenger seat. After leaving through the rear street exit, they circled back to the front entrance to look for a friend who had requested a ride. After they were unable to find the friend, they again drove to the rear exit where an unknown male blocked their departure by standing in front of their car. After someone inside the vehicle yelled at the man to move, he spat into Rappenecker’s face through a car window but moved aside, no longer obstructing their path. As the driver started to proceed, Rappenecker told her to stop so that he could ask the man “why he spit on me.” The driver told police that as Rappenecker got out of her car she heard him call the guy a “punk.” A witness told police that after Rappenecker exited the car she overheard Rappenecker and the guy “mouthing off at each other.” When Rappenecker turned his back and started to return to the car, the man suddenly struck Rappenecker in the back of the head with a beer bottle. Another man joined in the ensuing criminal assault. These two assailants eventually entered guilty pleas to aggravated battery.

In moving for summary judgment, LSE contended that Rappenecker assumed the risk of injury by getting out of the vehicle and unnecessarily confronting his assailants. LSE also argued that Rappenecker had superior knowledge of the risks created by his decisions and conduct. The trial court found that Rappenecker “voluntarily thrust himself into a dangerous situation despite the known risk involved.” Rappenecker appeals the summary judgment granted to LSE. Held:

1. Rappenecker contends that the trial court erred in finding that he assumed the risk of injury from the criminal attack. He claims that he did not intend to fight and did not realize the danger prior to the beating.

Pretermitting consideration of the applicability of the affirmative defense of assumption of risk, we find that Rappenecker’s failure to exercise reasonable care for his own safety entitled LSE to judgment. See Vaughn v. Pleasent, 266 Ga. 862, 864 (1) (471 SE2d 866) (1996); Fagan v. Atnalta, 189 Ga. App. 460, 461 (376 SE2d 204) (1988). Although the issue of a plaintiff’s exercise of due diligence for his own safety is ordinarily a question for the jury, it may be summarily adjudicated where the plaintiff’s knowledge of the risk is clear and palpable. Wells v. C & S Trust Co., 199 Ga. App. 31, 32 (403 SE2d 826) (1991). Where a plaintiff has equal or superior knowledge of a dangerous condition existing on the defendant’s property, there can be no recovery if the plaintiff fails to exercise reasonable care to avoid the danger. Brown v. Carlisle, 214 Ga. App. 483, 484 (448 SE2d 256) (1994).

Here, Rappenecker deliberately opted to leave the safety of the vehicle in order to confront the person who had blocked their path and spit at him. When asked, “[d]id you do anything that was calculated to put you in a precarious situation,” Rappenecker conceded that he probably had “[w]hen I got out of the car.” In injecting himself into a volatile and potentially dangerous situation, it cannot be said that Rappenecker exercised reasonable care for his own safety. Id.

2. Rappenecker contends that the trial court erred in finding that he had equal knowledge of the danger because he did not know his attackers and had no knowledge of prior instances occurring on LSE’s premises. We disagree.

If a proprietor has “reason to anticipate a criminal act,” then the proprietor has “a duty to exercise ordinary care to guard against injury from dangerous characters.” Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (1) (405 SE2d 474) (1991). The basis of liability is a proprietor’s superior knowledge of the existence of a condition that may subject an invitee to an unreasonable risk of harm. Howell v. Three Rivers Security, 216 Ga. App. 890, 892 (456 SE2d 278) (1995).

Here, however, Rappenecker failed to establish that LSE should have reasonably foreseen or anticipated that he would suddenly decide to confront a potentially dangerous character. Doe v. Prudential-Bache/A.G. Spanos &c. Co., 268 Ga. 604, 605 (492 SE2d 865) (1997); see Carlock v. Kmart Corp., 227 Ga. App. 356, 357-358 (1) (489 SE2d 99) (1997). Without question, Rappenecker had knowledge superior to that of LSE of the possible risk of additional trouble with this perpetrator. It was Rappenecker, not LSE, who initiated the unfortunate sequence of events. Sapp v. Effingham County Bd. of Ed., 200 Ga. App. 695, 696 (1) (409 SE2d 89) (1991). Rappenecker failed to offer any evidence that LSE knew about his actions or those of the person he decided to confront. Compare Wilks v. Piggly Wiggly Southern, 207 Ga. App. 842 (429 SE2d 322) (1993) (mugged store patron asserted negligent security claim based on store’s knowledge of prior criminal attacks on its premises). Nor did Rappenecker show that LSE had knowledge of prior similar incidents even assuming arguendo that such incidents existed. See Doe, 268 Ga. at 605. Because Rappenecker did not point to specific evidence giving rise to a triable issue on the matter of LSE’s purported failure to provide adequate security, the trial court properly granted summary judgment to LSE. Walker v. MARTA, 226 Ga. App. 793, 798 (1) (487 SE2d 498) (1997) (physical precedent only).

Judgment affirmed.

Johnson, C. J., and Smith, J., concur.

Decided January 7, 1999

Reconsideration denied January 26,1999 — Cert. applied for.

Buzzell, Graham & Welsh, Stephen M. Welsh, for appellant.

Talbot & Ladson, Thomas W Talbot, for appellee.