text:
    A00A1696.
    WELDON v. THE STATE.
    (543 SE2d 56)
   Phipps, Judge.

Ronnie Weldon was convicted of sale of cocaine, possession of cocaine with intent to distribute, and obstruction or hindering a law enforcement officer. He was sentenced to serve 45 years in prison. We reverse Weldon’s convictions and remand the case for a new trial because we find that the trial judge abused his discretion in the manner in which he attempted to control Weldon’s disruptive behavior.

When Weldon was brought into the courtroom for trial he moved for appointment of new counsel because he claimed that the public defender assigned to represent him had never visited him during the 11 months he had been incarcerated and had neither investigated his case nor properly prepared a defense. The judge denied the motion based on representations from the public defender and an investigator that the public defender or another attorney from the public defender’s office had visited Weldon once and that the investigator had visited Weldon at least three times. Weldon asserted that he did not want the public defender to represent him, that he wanted a new attorney and that his rights would be violated if he was forced to go to trial under the circumstances. The judge repeatedly admonished Weldon and threatened to bind and gag him, but Weldon refused to sit quietly, stating that he feared the record would reflect that he had acquiesced in the trial.

The jury panel was brought in. When asked if he was ready to proceed, Weldon protested the trial and requested a new lawyer. In the presence of the jury, the judge again denied Weldon’s requests and admonished him several times. The judge said, ‘We can do this two ways, you can sit here and behave or I’ll have you bound and gagged in front of this jury and you won’t be able to open your mouth until I tell you you can.” When Weldon refused to allow the lawyer to pick a jury for him, the judge responded, “Go get the chain and the gags.” Then he ordered Weldon removed from the courtroom and said to the jury, “[L]adies and gentlemen, you see the problem I have.”

The jury was sent out, and Weldon was returned to the courtroom bound and gagged. The gag was removed so that Weldon could discuss with the judge whether he would sit quietly. But Weldon refused to agree to remain quiet.

When the jury panel was brought back into the courtroom for voir dire, Weldon had been unhandcuffed and ungagged. Almost immediately, Weldon interrupted the proceedings by restating his request for a new attorney. The judge then ordered Weldon gagged in the presence of the jury.

Thereafter, he sat gagged through a portion of the voir dire. After the jurors had identified themselves, the judge explained to the jury the role of the court in maintaining courtroom decorum and stated his reasons for binding and gagging Weldon. In part, the judge stated that he “ha[d] made every effort to ask the defendant to be quiet and give him the full opportunity to talk when it’s his turn to talk.” The judge detailed his findings regarding visits with the defendant by the public defender’s office. Then the judge asked the prosecutor to read into the record legal authority regarding the court’s options in controlling an obstreperous defendant.

Afterward, still in the presence of the jury, the judge asked Weldon whether he would be quiet and ordered that the gag be removed so that Weldon could answer. After a lengthy discussion between Weldon and the judge in the presence of the jury, Weldon refused to discontinue his protests of the trial, and the judge ordered Weldon removed from the courtroom. Weldon disrupted the proceedings with verbal protests. The record does not show that he made any threats or engaged in any violent conduct.

After the jury had been selected, Weldon was returned to the courtroom. After a lengthy admonition from the judge in the presence of the jury, Weldon promised to speak only when court procedures allowed for defense presentations. He was allowed to stay in the courtroom and participate in the proceedings as co-counsel until he left with the judge’s permission during the presentation of the defense’s case. Weldon did not return until the verdict was announced.

1. Both the state and federal constitutions protect the right of an accused to be tried by an impartial jury. And

[i]t is well established that the accused, while in the presence of the jury, should be free of indicia of guilt such as wearing shackles or prison garb, or being surrounded by uniformed security personnel, or anything else that might infringe upon the presumption that he is innocent. . . . One accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on the grounds of official suspicion, indictment, continued custody or other circumstances not adduced as proof at trial.

However, circumstances may arise which necessitate action by the trial judge to control an obstreperous or disruptive defendant. Illinois v. Allen is the seminal case on the constitutionality of measures to control a disruptive defendant. Citing Allen, the Georgia Superior Court Benchbook, Part I: Criminal, provides guidelines for a judge faced with a disruptive defendant. Out of the presence of the jury, the judge should patiently explain and warn the defendant of the possible consequences of such conduct and the steps that may be taken against the defendant, including: (a) being cited and punished for contempt; (b) being excluded from the courtroom until the judge is assured of proper conduct and (c) being bound and gagged but allowed to remain in the courtroom. Abuse of discretion is the test on appeal.

Although binding and gagging a defendant may be constitutionally acceptable in certain circumstances, the United States Supreme Court and the courts of this State have observed that it is likely to have a significant prejudicial impact upon the jury and generally is less preferable than removing the defendant from the courtroom. In Allen, the United States Supreme Court explained:

Trying a defendant for a crime while he sits bound and gagged before the judge and jury would to an extent comply with that part of the Sixth Amendment’s purposes that accords the defendant an opportunity to confront the witnesses at trial. But even to contemplate such a technique, much less see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort. Not only is it possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold. Moreover, one of the defendant’s primary advantages of being present at the trial, his ability to communicate with his counsel, is greatly reduced when the defendant is in a condition of total physical restraint.

Although the record shows beyond dispute that Weldon was obstreperous in unceasingly proclaiming that he was entitled to a different lawyer and that his rights were being violated, we cannot find that the trial judge properly exercised his discretion in the manner in which he attempted to control Weldon. The record does not indicate that binding and gagging were used as a last resort among reasonable and less prejudicial alternatives, which included removing him from the courtroom until he was willing to be present without disruption.

The beginning of the proceedings suggests the immediacy with which the judge resorted to binding and gagging Weldon. As Weldon attempted to inquire why he had been brought to court, the following dialogue occurred:

[WELDON]: Excuse me, Judge Johnston —.
[THE COURT]: You will be heard from when I ask you. Let me tell you something. You’re going to sit down and keep your mouth shut until I ask you to talk. If you don’t, I’ll have you chained and put in handcuffs, do you understand that? [WELDON]: I understand that, sir, but I —.
[THE COURT]: Then keep your mouth shut until I ask you to be heard from. The way the order of the court works is that we hear from the State first, then we hear from the defendant. Is that clear?
[WELDON]: All right. But what —.
[THE COURT]: Is that clear?
[WELDON]: Yes, sir, but I’m like what is this —.
[THE COURT]: Then be quiet.
[WELDON]: I’d like to know what’s going on, you know what
I’m saying.
[THE COURT]: I’m going to tell you in a minute, be quiet.

The judge then proceeded to conduct a similar transactions hearing before answering Weldon’s question whether he was in court for a trial.

We find that the necessity for measures to control Weldon’s outbursts probably was heightened by the judge’s response to his motion for new counsel. When the defendant seeks new counsel on the basis of ineffectiveness of currently appointed counsel, “the trial court, in order to insure that the defendant’s Sixth Amendment right has been and will continue to be afforded, should conduct ‘a hearing as to the basis of the defendant’s motion. . . .’ [Cit.]” “[T]he Sixth Amendment requires more than ‘a perfunctory, surface inquiry to determine the truth and scope of (the) allegations.’ [Cit.]”

The judge’s inquiry into Weldon’s claims was perfunctory at best. He merely asked the public defender and an investigator for the public defender’s office whether and how many times they had visited with Weldon and whether the charges had been explained to him. But the record shows that in addition to asserting that the public defender had never visited him, Weldon complained that he wished to have evidence and witnesses subpoenaed for his defense and that he had wanted to file a motion to suppress. A more thorough inquiry into Weldon’s complaints might have served either to demonstrate their merit or to assure Weldon that his attorney was adequately prepared to defend him.*

Finally, we find that the judge’s extensive discussions of Weldon’s conduct, admonishment of him and orders to restrain him, all of which took place in the presence of the jury, and the judge’s comment to the jury about Weldon’s conduct exacerbated the damage likely done to the jury’s impartiality and Weldon’s presumption of innocence by Weldon’s own conduct. Unnecessarily, it seems, the jury repeatedly was allowed to hear lengthy colloquies wherein Weldon impugned the preparation and professionalism of his trial counsel and wherein the judge continuously threatened him with being bound and gagged or removed. In the jury’s presence the judge suggested several times that Weldon was being unreasonable, lacked knowledge of the legal process and was being untruthful in his allegations that trial counsel had never visited him.

Moreover, we are concerned with how the jury might have been affected by an unnecessarily high level of physical control exhibited over Weldon in its presence — removing him with orders to chain and gag him, gagging him in the presence of the jury, admonishing him while he sat gagged, removing the gag for his response to “will you be quiet and only talk when I ask you or when it’s your turn to talk?”, removing him from the courtroom when he did not promise to be quiet, evoking a promise upon his return that he would be quiet and stating that if he did not the judge would remove him again.

The combination of these factors compels us to find that the trial court abused its discretion in the manner in which it attempted to control Weldon’s disruptive behavior. Thus, we reverse and remand for a new trial.

2. We will discuss other issues raised by Weldon in this appeal insofar as they may affect subsequent proceedings below.

(a) After Weldon agreed to discontinue his protests of the trial, the judge allowed him to participate in his defense as co-counsel and to examine witnesses. He contends that the court erred in allowing him to proceed while acting as his own attorney and with appointed counsel.

Although the Georgia Constitution no longer provides a criminal defendant the right to act as co-counsel in his trial, trial courts have the discretion to allow such hybrid representation. However, as when the defendant elects to proceed pro se, the record in such a case should reflect that “[the defendant’s] choice to proceed as co-counsel was ‘made after [he] was made aware of his right to counsel and the dangers of proceeding without counsel.’ [Cits.]” The record does not show that Weldon was so advised. At any future trial of this case, the record should show that such advice was given to Weldon before he is allowed to participate as counsel.

Decided November 28, 2000.

William J. Mason, for appellant.

Ronnie Weldon, pro se.

J. Gray Conger, District Attorney, Eddie B. Bassett, Assistant District Attorney, for appellee.

(b) Next, Weldon argues that the trial court erred in admitting into evidence guns, scales, plastic bags and razors seized at the house where he was arrested. Essentially, Weldon contends those items were not relevant to the prosecution of his charges because he did not live at the house, his name was not listed on the search warrant which precipitated the seizure and the items were not found in proximity to him or to a quantity of drugs.

This argument is without merit. The evidence showed that when officers executed the search warrant, Weldon locked them outside and entered a bathroom where he was found washing cocaine down a sink and flushing down the toilet a substance that appeared to be cocaine. A reasonable juror could have inferred that Weldon was a participant in the illegal drug activity taking place inside the house. And items such as small plastic bags, razors, scales and guns were relevant to the scope of the illegal activity, i.e., whether it was only possession of drugs or distribution as well.

(c) We need not address the remaining errors enumerated by Weldon because it is unlikely that resolution of them would affect subsequent proceedings below.

Judgment reversed and case remanded.

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

       United States Const., Sixth Amendment; Ga. Const. 1983, Art. I, Sec. I, Par. XI.

       (Citations and punctuation omitted.) Mapp v. State, 197 Ga. App. 7 (397 SE2d 476) (1990).

       397 U. S. 337, 343-344 (90 SC 1057, 25 LE2d 353) (1970).

       Council of Superior Court Judges of Georgia, Criminal Benchbook, § 13.11 (July 2000 supp. to 1995 ed.).

        Pace v. State, 212 Ga. App. 489, 490 (1) (442 SE2d 307) (1994).

       See Allen, supra, 397 U. S. at 344; Sanders v. State, 242 Ga. App. 487, 490 (1) (c) (530 SE2d 203) (2000) (prejudicial impact); Fletcher v. State, 252 Ga. 498, 501, n. 2 (314 SE2d 888) (1984) (preferable to remove defendant).

       (Emphasis supplied.) 397 U. S. at 344.

       The record begins with this dialogue and does not show any previous obstreperous behavior by Weldon.

        Heard v. State, 173 Ga. App. 543, 544 (1) (327 SE2d 767) (1985).

       Id. at 545.

       The attorney had not filed a suppression motion.

       The Georgia Superior Court Benchbook provides, “if restraining devices are visible, the jurors should be instructed that such restraint is not to be considered in weighing evidence or determining the issue of guilt.” Council of Superior Court Judges of Georgia, Criminal Benchbook, § 13.11 (b) (ii) (July 2000 supp. to 1995 ed.); but see Kitchen v. State, 263 Ga. 629, 630 (1) (436 SE2d 645) (1993) (trial court did not commit reversible error by failing to give unrequested curative instruction where restraint was otherwise lawful).

        Hance v. Kemp, 258 Ga. 649, 650 (1) (373 SE2d 184) (1988).

       Id.

       See Mason v. State, 146 Ga. App. 557, 558 (3) (247 SE2d 118) (1978).

       See McKeever v. State, 196 Ga. App. 91, 94 (5) (395 SE2d 368) (1990) (weapons relevant to intent to conceal and protect illegal substance which defendant was charged with possessing and distributing).


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A00A1847.
    HOOD v. THE STATE.
    (543 SE2d 71)
   Blackburn, Presiding Judge.

Following a jury trial, Stanley Hood appeals his conviction for possession of a firearm by a convicted felon, contending that, although he is admittedly a convicted felon, the evidence was insufficient to show that he possessed the firearm in question. For the reasons set forth below, we affirm.

Decided November 28, 2000.

Juwayn N. Haddad, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Hood] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The . . . verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State. See Jackson v. Virginia.

Viewed in this light, the record shows that, in the early morning hours of December 20, 1996, Hood went to the apartment of an ex-girlfriend. Hood, who was intoxicated, knocked on the door and yelled. Hood’s ex-girlfriend then called the police, and Officer Brian Whelchel responded. When Officer Whelchel arrived at the scene, he saw Hood standing alone outside the apartment door. As Officer Whelchel approached, Hood removed a black object from his coat pocket and held it by his side. Officer Whelchel drew his weapon and told Hood to drop the object in his hand. Hood did as he was told, and Officer Whelchel arrested him and took him to the patrol car. Officer Whelchel then returned to the area where Hood was originally standing and found a black handgun on the ground.

This evidence was sufficient to support Hood’s conviction. See Jackson, supra. And this outcome is not altered by Hood’s contention that he never had a gun and that Officer Whelchel’s version of the facts was erroneous. In essence, Hood argues that we should believe him, not Officer Whelchel. Such an argument, however, will not be considered by this Court, as matters of credibility must be decided by a jury. Kovacs, supra. Accordingly, Hood’s conviction must stand.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997).

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


text:
    A00A1921.
    BAKER v. THE STATE.
    (543 SE2d 70)
    Decided November 28, 2000.

      Melinda I. Ryals, for appellant.

      C. Paul Bowden, District Attorney, Holli G. Martin, Assistant District Attorney, for appellee.
   Blackburn, Presiding Judge.

Following a jury trial, Sterling Baker appeals his conviction for the armed robbery of a Suwannee Swifty convenience store, contending that the trial court erred by: (1) admitting inappropriate character evidence and (2) denying his motion for mistrial regarding remarks made by the prosecutor during closing arguments. For the reasons set forth below, we affirm.

1. Baker contends that the trial court improperly admitted testimony about his character into evidence. We disagree.

During its case, the State called Donna Dubois, the manager of the Suwannee Swifty store who had interviewed Baker for a cashier position. When asked why she did not hire Baker, Dubois stated that he was not “good quality material to hire.” Dubois then elaborated that the basis for this conclusion was Baker’s lack of prior experience as a cashier, not the quality of his character. As the witness’s answer did not relate to Baker’s character, only his qualifications for a job, his enumeration is meritless.

2. Baker contends that the trial court erred by denying his motion for a mistrial following an improper closing argument by the prosecutor. Although the transcript does contain Baker’s objection, the closing arguments, themselves, were not transcribed.

Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f). . . . When this is not done, there is nothing for the appellate court to review.

(Citations omitted.) High v. Zant. Therefore, due to the omission of closing arguments from the transcript, we cannot review Baker’s enumeration of error.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        High v. Zant, 250 Ga. 693, 698 (11) (300 SE2d 654) (1983).


text:
    A00A1954.
    EIDSON v. THE STATE.
    (543 SE2d 100)
   Blackburn, Presiding Judge.

Marion Albert Eidson appeals, following a jury trial, his convictions of two counts of burglary, two counts of armed robbery, and two counts of kidnapping. Eidson contends that the trial court erred by denying his motion for directed verdict of acquittal, because the testimony of his alleged accomplice was not corroborated. Because we find there were sufficient corroborating facts and circumstances, we affirm.

On appeal from a criminal conviction,

we view the evidence in a light most favorable to support the verdict, and an appellant no longer enjoys the presumption of innocence; moreover, we determine the sufficiency of the evidence and do not weigh the evidence or determine witness credibility. Grant v. State, 239 Ga. App. 608, 609 (1) (521 SE2d 654) (1999). We review a denial of a motion for a directed verdict of acquittal under the standards set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and determine whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.

Hamilton v. State.

So viewing the evidence, the record shows that David Howard testified that Eidson called to ask him to participate in robbing the home of Frances Walker, the mother of Eidson’s girlfriend. Eidson told Howard that he could run in and grab a sack full of money, supposedly drug money, because just two women lived in the house. Howard refused to participate but suggested that Eidson talk to Jeffrey Parham.

On December 24, 1998, Eidson called Howard’s home and asked to speak to Parham about the robbery. Howard gave the phone to Parham. Later that evening, Howard saw Eidson and his girlfriend, Lisa Aaron, drive up to his house, and he saw Parham go outside to speak with them. When Parham came back inside the house, he told Howard that he was leaving with Aaron and Eidson to rob the house. When Parham returned the next day, he told Howard they had robbed the house.

Walker, the mother of co-defendant Aaron, testified that, in the early morning hours of December 25, 1998, she was at her home with her daughter Michelle Martinez and her three grandchildren when she heard a loud knock on the door. Martinez answered the knock and told Walker that a man at the door wanted to speak with her. Walker, barely opening the door, saw Parham, whom she did not know at the time. Parham told her that he needed to talk to her because “her daughter and her boyfriend” had been in a serious accident. Walker opened the door a little wider, and Parham forced his way in, brandishing a crowbar. Once inside, Parham forced the two ladies and the grandchildren into the kitchen. He then demanded their money and jewelry. After Parham got the jewelry, a scuffle ensued, and he ran from the house.

Martinez’s testimony regarding the robbery was similar to Walker’s testimony. In addition, she testified that she followed Parham outside and saw him running in the direction of a nearby convenience store. Martinez called 911 after Parham ran out the door. She suggested to the police officers responding to the call that they look for Aaron’s burgundy Cutlass because of Parham’s story about the accident. Soon after, one of the officers spotted a car matching Martinez’s description. He stopped the car, which was driven by Aaron with Eidson as the passenger.

Eidson, Aaron, and Parham were arrested and indicted. Parham pleaded guilty and testified at Eidson’s trial. This appeal addresses only Eidson’s convictions.

Parham testified at trial that Eidson called him on December 24 to see if he was interested in helping to rob the home of his girlfriend’s mother. Eidson told him that the house had a sack full of money and that it would be a simple job — just run in and grab the money from the two women who lived there. Eidson also told him that he could not do it himself because the women knew him. Parham agreed to do it, so they planned to meet at Howard’s home. Later that evening, Eidson and Aaron drove up in a burgundy car. Parham testified that the plan was to drop him off a few doors away from the home, he would rob the house, and then the three would meet at a nearby convenience store to split the money. Eidson gave him a crowbar to use in the robbery. After forcing his way into the house and robbing Walker and Martinez of their jewelry, Parham ran to the convenience store. When Aaron and Eidson failed to show, Parham left.

The jury convicted Eidson of kidnapping, armed robbery, and burglary. Eidson argues that the trial court erred by denying his motion for directed verdict of acquittal, because his convictions were impermissibly obtained based on the uncorroborated testimony of Parham, his alleged accomplice. We disagree.

Although the testimony of a single witness is generally sufficient to establish a fact, in “felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient.” OCGA § 24-4-8. Nonetheless,

Decided November 28, 2000.

Robert L. Mack, Jr., Patricia F. Angelí, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

the sufficiency of the corroboration evidence is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting a defendant with the crime, the verdict is legally sufficient. The necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime.

(Emphasis supplied.) Scott v. State.

Here, Howard’s, Walker’s, and Martinez’s testimony provided legally sufficient corroboration to Parham’s testimony that Eidson was a party to the crimes. Howard provided testimony regarding Eidson’s plan to recruit someone to enter the house and grab the money. Howard’s and Parham’s testimony regarding what Eidson told them in order to recruit them were similar. Howard also testified that Parham told him the next day that they had gone through with it. Walker’s and Martinez’s descriptions of the events corroborated Parham’s. For example, Martinez saw Parham run toward the convenience store where Parham testified that he and Eidson had planned to meet. Parham testified that Eidson had given him a crowbar to use during the robbery, and Walker and Martinez testified that Parham used a crowbar. This evidence sufficiently connected Eidson with the crimes.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

        Hamilton v. State, 243 Ga. App. 10 (532 SE2d 118) (2000).

       Aaron did not testify at trial.

         Scott v. State, 243 Ga. App. 334, 335-336 (533 SE2d 428) (2000).


author: Phipps, Judge.

text:
    A00A1966.
    SOLID WASTE MANAGEMENT AUTHORITY OF CRISP COUNTY v. TRANSWASTE SERVICES, INC.
    (543 SE2d 98)
   Phipps, Judge.

Transwaste Services, Inc. (Transwaste) filed this complaint against the Solid Waste Management Authority of Crisp County (the Authority) seeking a recovery for services rendered by Transwaste to the Authority under a contract styled Waste Collection and Transportation Agreement (WCTA). The Authority filed a counterclaim seeking to set off its liability to Transwaste on the claims asserted in the complaint against Transwaste’s liability to the Authority for breach of certain guarantees made by Transwaste under another contract known as the Waste Service Agreement (WSA). The question is whether the Authority has waived its right of set-off. The trial court answered this question in the affirmative, as do we.

The Authority operates a solid waste processing facility. Under contracts with various governmental units, the Authority agreed to collect and dispose of solid waste produced throughout the state. Under the WCTA, the Authority subcontracted to Transwaste various duties owed by the Authority under its contracts with the governmental units. Under the WSA, Transwaste guaranteed that the total tonnage of waste delivered to the Authority by Transwaste and the governmental units would be sufficient to operate the facility on a break-even basis.

On March 12, 1999, Transwaste gave notice that the Authority was in default of payment obligations to it under the WCTA. On May 11, the Authority executed a promissory note payable to Transwaste on August 31 in the principal sum of $962,018.33. Services rendered by Transwaste to the Authority through December 31, 1998, provided the consideration for the note. On June 3, 1999, the Authority and Transwaste entered into an Interim Operating Agreement (IOA) to govern their rights and duties from January 1 through August 31, 1999. One of the provisions of the IOA states:

This agreement is entered into with a full reservation of all of the rights of the parties under the terms of the existing agreements, except that the Authority waives any rights which it may have to contest its legal liability under the Promissory Note . . . and/or to contest the dollar amount of its indebtedness hereunder.

On September 27, Transwaste brought this action against the Authority. In Count 1 of its complaint, Transwaste seeks to recover the $962,018.33 principal balance due on the note, unpaid interest, and attorney fees. In Count 2 of the complaint, Transwaste seeks to recover $1,290,336.33 for services rendered to the Authority for the period not covered by the note (i.e., after December 31, 1998).

The Authority, which is in a state of insolvency, answered the complaint and filed a counterclaim against Transwaste to recover $1,989,441.40 allegedly owed by Transwaste as a result of its breach of its break-even guarantee under the WSA from July 1 through December 31, 1998. The Authority claims that it is entitled to an equitable set-off of this debt against Transwaste’s claims.

The trial court granted Transwaste’s motion for judgment on the pleadings on Count 1 of its complaint because of the provision in the IOA under which the Authority waived any right to contest its legal liability under the promissory note.

The doctrine of set-off was created by courts of equity to allow the defendant to set off its liability to the plaintiff on the cause of action set forth in the complaint against an entirely different cause of action on which the plaintiff was liable to the defendant. Historically, equity has taken jurisdiction to enforce a set-off primarily in cases involving an insolvent or nonresident plaintiff, due to the possibility that the defendant in those instances would be unable to perfect service on the plaintiff or obtain a collectible judgment against the plaintiff in a separate suit. In Georgia, the right of set-off, both at law and in equity, is preserved by statute.

But this is a right which may be waived. The question is whether the Authority, in executing the IOA, waived its right to set off the debt owed by it to Transwaste under the promissory note and WCTA against Transwaste’s claimed indebtedness to the Authority for breach of the WSA. The IOA was executed in 1999. The Authority claims that Transwaste breached the WSA in 1998. Therefore, the Authority’s claim against Transwaste for breach of the WSA was in existence when the IOA was executed. Under the waiver language in the IOA, the parties could not reasonably have intended that the Authority could avoid paying part or all of the sums represented by the note on its due date by setting off sums allegedly owed by Trans-waste to the Authority on a preexisting claim for breach of contract. We thus conclude that although the Authority has reserved its right to bring suit for breach of the WSA, it has waived its right to delay enforcement of the note through the device of set-off.

The Authority has asserted no grounds in law or equity to relieve it from its contractual waiver. Although insolvency by Transwaste might present grounds for allowing the Authority to utilize the set-off doctrine, the Authority’s own insolvency does not. Nor does any need hy the Authority for protection from asset-levying creditors constitute a defense to Transwaste’s suit on the note. Matters such as this should be raised in bankruptcy proceedings rather than here.

Decided November 28, 2000.

Sell & Melton, Edward S. Sell III, Jeffrey B. Hanson, Neil A. Halvorson, for appellant.

Jones, Cork & Miller, Hubert C. Lovein, Jr., Watson, Spence, Lowe & Chambless, Evans J. Plowden, Jr., for appellee.

Judgment affirmed.

Johnson, C. J., and Ellington, J., concur. Smith, P. J., not participating.

       See McLendon v. Galloway, 216 Ga. 261, 262 (1) (116 SE2d 208) (1960).

       See id.; Lester v. Goodyear Tire &c. Co., 156 Ga. App. 171 (2) (274 SE2d 143) (1980).

       OCGA §§ 13-7-1 et seq.; 23-2-76.

       20 AmJur2d 236, Counterclaims, Recoupment & Setoff, § 12 (1995).


author: Ruffin, Judge.

text:
    A00A1993.
    HENDERSON v. THE STATE.
    (543 SE2d 95)
   Ruffin, Judge.

A jury found David Lee Henderson guilty of aggravated assault for stabbing Orlando Woodard. On appeal, Henderson contends that the trial court erred in permitting the State to cross-examine defense witnesses about prior convictions, failing either to have a portion of the trial transcribed or to allow him to supplement the transcript, and failing to exercise discretion in sentencing. Finding Henderson’s contentions lack merit, we affirm.

1. Woodard testified that, on September 15, 1998, Henderson stabbed him after the two of them “exchanged words.” Henderson admitted stabbing Woodard, but claimed that he did so in self-defense. Two other defense witnesses, Orlando Weems and Robert Crowder, supported Henderson’s version of events. To impeach Weems’s and Crowder’s testimony, the State tendered copies of their prior convictions for drug offenses. The State also cross-examined both witnesses regarding the circumstances of their arrests. In two enumerations of error, Henderson asserts that the trial court erred in allowing the State to question the witnesses about the drug offenses as such testimony was irrelevant.

“A witness’s credibility may be impeached upon showing conviction for a crime of moral turpitude, or upon introducing a certified copy of a prior felony conviction.” As Weems and Crowder were convicted of felonies, the certified copies of those convictions were relevant to their credibility. But the impeachment was accomplished by the State’s tendering of the certified convictions, and the State’s additional questions regarding the circumstances of the arrests constituted improper bolstering. However, Henderson did not object to the admission of the evidence on this basis, and his failure to do so precludes appellate review of this issue.

2. During the sentencing phase of the trial, the State tendered certified copies of Henderson’s four prior convictions. Under OCGA § 17-10-7 (c), the trial court sentenced him as a recidivist to 20 years, which is the maximum sentence. According to Henderson, the trial court stated that, under the recidivist sentencing provisions, it had no discretion in sentencing. However, the transcript of the sentencing hearing does not contain any such statement. Henderson alleges that the court’s statement was not transcribed, and he moved to supplement the transcript to include the alleged statement. The trial court denied the motion. At the motion hearing, the trial court stated, “I know I have discretion, but I’m not going to exercise it. He’s going to be sentenced to twenty years to serve.”

On appeal, Henderson argues that the trial court erred in failing to have the entire sentencing hearing transcribed or to allow him to supplement the record. Pretermitting whether error occurred, however, Henderson’s claims of error present no basis for reversal.

When a trial court has sentenced a recidivist to the maximum penalty under the mistaken belief that it had no discretion to suspend or probate any part of the sentence, we have remanded for resentencing. Here, however, even if the trial court mistakenly believed it had no discretion at the sentencing phase, this was clearly not the case at the motion hearing, when the trial court stated that, although it had discretion in sentencing, it would not exercise it to probate or suspend any part of Henderson’s sentence. Accordingly, remanding the case would be an exercise in futility as “[t]his court will not disturb a sentence within the statutory limits.” And Henderson “has no cause for complaint that the court, in the exercise of its discretion, declined to probate or suspend a portion of the recidivist sentence.”

Decided November 28, 2000.

Lloyd J. Matthews, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       Weems pled guilty to one count of possession of cocaine, and Crowder pled guilty to one count of selling counterfeit cocaine and one count of possession of cocaine.

       (Footnote omitted.) Kyler v. State, 270 Ga. 81, 83 (7) (508 SE2d 152) (1998).

       See Vincent v. State, 264 Ga. 234, 235 (442 SE2d 748) (1994) (where witness does not attempt rehabilitation by explaining circumstances of conviction, additional questions regarding circumstances constitute bolstering).

       See Hehir v. State, 237 Ga. App. 389 (515 SE2d 406) (1999).

       OCGA § 16-5-21 (b).

       See OCGA § 5-6-41 (d).

       See Bradshaw v. State, 237 Ga. App. 627, 629-630 (2) (516 SE2d 333) (1999).

        Scott v. State, 240 Ga. App. 586, 588 (3) (524 SE2d 287) (1999).

        Muhammad v. State, 242 Ga. App. 540, 542 (2) (529 SE2d 418) (2000).


text:
    A00A2226, A00A2227.
    CLINCH COUNTY BOARD OF EDUCATION v. HINSON; and vice versa.
    (543 SE2d 91)
   Phipps, Judge.

David Hinson was employed by the Clinch County Board of Education as Media and Technology Coordinator. At the request of school administrators, Hinson placed a videocamera in a girls’ locker room during high school basketball games in an attempt to apprehend a thief. Although no thefts occurred, videotapes captured images of female students changing their clothing and recorded their conversations. Following disclosure of the tapes’ existence, the county school superintendent suspended Hinson and recommended that his contract of employment be terminated. A hearing requested by Hinson under the Fair Dismissal Act was conducted by a tribunal composed of active and retired school administrators from various Georgia counties. Based on its findings of fact, the tribunal recommended that Hinson’s contract of employment be terminated. The county board of education approved the tribunal’s findings and recommendation, as did the state board acting in its appellate capacity. On further appeal, however, the superior court reversed.

In Case No. A00A2226, the county board of education appeals. The board charges the superior court with error in failing to give deference to the local board’s decision under the applicable standard of appellate review. In Case No. A00A2227, Hinson cross-appeals. He contends that the local board’s decision should have been reversed for reasons not given by the superior court in its order. Finding merit in the appeal but not the cross-appeal, we hold that the superior court erred in reversing the board’s termination of Hinson’s employment.

Hinson was employed by the Clinch County Board of Education for a number of years. He was a system-wide media and technology coordinator. He was regarded as a very effective administrator, and his evaluations were uniformly excellent.

During a girls’ basketball game at Clinch County High School, a thief gained entrance to the locker room used by the visiting team and stole money and jewelry worth almost $2,000. The suspected point of entry was near the locker room entrance. The theft was discussed in a meeting between School Resource Officer Lonnie Webb (a Clinch County deputy sheriff), high school principal Dr. Kay Hinson (Hinson’s wife), and assistant principal Donald Tyson. At the meeting, Webb suggested that an attempt be made to apprehend the thief by placing a videocamera in the visiting girls’ locker room during a basketball game. Webb advised Dr. Hinson that this would be legal so long as the camera was aimed at the locker room entrance.

Hinson was asked to meet with Dr. Hinson, Tyson, and Webb and, at the meeting, was informed of Webb’s plan. Hinson was given no legal advice, but was told that the videocamera should be focused on the locker room entrance and asked if this was feasible. After Hinson, Tyson, and Webb went to the locker room and determined that a videocamera could be positioned in a locker so as to focus on the entranceway, a decision was made to proceed with the plan. Although Hinson characterized the decision as a “collective” one, Dr. Hinson acknowledged that the final decision-making authority was hers.

One afternoon, Hinson and Webb installed Hinson’s personal videocamera inside a wire-mesh locker in the visiting locker room and caused it to record activities in the locker room before, during, and after a girls’ basketball game. Hinson repeated this procedure during another girls’ basketball game two weeks later. Altogether four two-hour tapes were made, two on each date. The camera was focused so as to record benches and lockers used by players and cheerleaders, as well as the locker room entrance. The videotapes showed some of the female students removing their outer garments and dressing for the game. Some students were captured by the camera in underclothing. The camera was visible to some but not all of the students. During the latter game, a cheerleader for the visiting team unplugged the camera, but Hinson reconnected it before recording the final tape. None of the female students had any prior knowledge of the videotaping or gave their prior consent.

On direct examination, Hinson testified that he meant to aim the camera at the entrance to the locker room and did not intend to record any images of female students using the lockers. But during cross-examination, he testified that he knew female students would be undressing in the locker room and intended to capture them on videotape because he was unsure whether one of them might have been the thief.

Without erasing the tapes, Hinson put them in a storage room adjacent to his office to which a limited number of school personnel had access. The tapes thereby became available to be used by teachers for retaping. A student found one of the tapes in a teacher conference room, viewed it, and disclosed the contents to his mother. The school superintendent later obtained the tape. Upon reviewing the tape, the local board of education turned the matter over for criminal investigation. After the remaining tapes were found by a Georgia Bureau of Investigation investigator in Hinson’s office and in the adjacent storage room about two years after the recordings were made, Hinson was indicted by a grand jury on felony eavesdropping charges. Although a subsequent grand jury dismissed the charges, the cheerleader who had unplugged the camera filed suit against the school board and others because of the taping. When Webb’s involvement in the videotaping was disclosed, he was dismissed.

Hinson’s claim that he did not know that the students would be dressing in the area where the camera was focused was found by the tribunal to be lacking in credibility. In this regard, the members of the tribunal noted that they had visited the locker room with the consent of the parties and observed that a videocamera located where Hinson placed it surely would record the benches intended for use by students dressing. The tribunal and later the local board concluded that the acts and omissions of Hinson in causing or participating in causing the videotapes to be made, retaining the videotapes, and failing to ensure that they were erased, destroyed, or otherwise safeguarded constituted “incompetency” under OCGA § 20-2-940 (a) (1) and “other good and sufficient cause” justifying termination of his employment under OCGA § 20-2-940 (a) (8). The state, board noted these findings and determined there was evidence supporting the local board’s decision.

The superior court concluded otherwise and reversed. The court ruled that in videotaping the girls’ locker room Hinson had merely carried out a task assigned to him by school administrators; that there was no evidence of any policy, directive, or training that would have required Hinson to erase the tapes; and that the evidence was insufficient to support a finding that he was custodian of the tapes. Relying on an out-of-state case, the court also held that Hinson could not be dismissed for unfitness or incompetence absent evidence showing that his conduct produced disruption or impairment of discipline or of the teaching process and that his retention posed a significant danger of harm to either students, school employees, or others who might be affected by his actions. The court found no such evidence. The court also determined that the local board of education had abused its discretion by arbitrarily and capriciously singling out Hinson for dismissal without disciplining any other tenured employee of the board.

1. Sitting as an appellate body, the superior court is bound to affirm the decision of the local board if there is any evidence to support it. In matters such as this, the superior court should not interfere with a local board’s administration of its schools unless the board has grossly abused its discretion or acted arbitrarily or contrary to law.

(a) In ruling that Hinson was merely performing an assignment given him by school administrators, the court ignored evidence that he had violated one of their instructions by focusing the videocamera at dressing areas as well as at the locker room entranceway.

(b) Although in his position as media and technology coordinator Hinson was not generally responsible for storage and security of videotapes, he made the decision as to what to do with these videotapes after recording them. Some of the videotapes were found in his office approximately two years after they were made. This constitutes evidence that he was their custodian.

(c) The fact that Hinson’s decisions concerning retention and storage of the videotapes did not violate any policy or directive does not preclude his dismissal. The school could hardly be expected to have a preestablished policy concerning disposition of videotapes depicting female students undressing in high school locker rooms.

(d) The superior court erred in holding that Hinson could not be dismissed for incompetence unless the evidence showed that his actions disrupted or impaired discipline or teaching or that he posed a significant danger to others. Oakland Unified School Dist. v. Olicker, the out-of-state case cited by the court in support of this, is of course not binding in Georgia. While the Olicker factors are certainly relevant in determining whether actions by a teacher support a charge of incompetence, they are not absolute prerequisites to a finding of incompetence under Georgia law. Moreover, the factors identified in Olicker apply to teachers, and the responsibilities for the position occupied by Hinson show that he was an administrator.

Even if the evidence was insufficient to establish Hinson’s incompetence, given his otherwise exemplary career record, the local board did not abuse its discretion in finding the existence of “other good and sufficient cause” for his termination. As recognized by the state board, the tribunal and local board dismissed Hinson for both incompetence and other good and sufficient cause. The state board affirmed the local board’s decision.

Decided November 28, 2000

Helms & Helms, Jack J. Helms, Jr., for appellant.

Barham, Dover, Bennett, Miller & Sherwood, Douglas L. Mutert, Berrien L. Sutton, for appellee.

Harben & Hartley, Sam S. Harben, Jr., Daniel R. Murphy, amici curiae.

(e) Under the evidence, it cannot be said that the local board singled out Hinson for greater discipline than others similarly situated. The evidence shows that Hinson and Webb were solely responsible for the positioning of the videocamera so as to capture the images of female students undressing in the locker room. Evidence was presented showing that tenured employees other than Hinson who were aware of the taping assumed that the videocamera would not be positioned in such manner. Both Hinson and Webb were dismissed from their employment.

2. The issues presented in the cross-appeal either have been resolved in Division 1, are moot, or have not been preserved for review in this court because they were not raised in superior court. The superior court did not err in failing to reverse the board’s decision based on the grounds asserted in the cross-appeal.

Judgment affirmed in Case No. A00A2227. Judgment reversed in

Case No. A00A2226.

Johnson, C. J., and Ellington, J., concur. Smith, P. J., not participating.

       See OCGA § 20-2-940 (e) (1).

        Ransum v. Chattooga County Bd. of Ed., 144 Ga. App. 783, 785 (5) (242 SE2d 374) (1978).

       See D. B. v. Clarke County Bd. of Ed., 220 Ga. App. 330, 333 (1) (469 SE2d 438) (1996); Terry v. Houston County Bd. of Ed., 178 Ga. App. 296, 297 (342 SE2d 774) (1986).

       102 Cal. Rptr. 421, 428-429 (25 Cal. App. 3d 1098) (1972).

       See Young v. Scott, 212 Ga. App. 572, 574 (1) (442 SE2d 768) (1994). Although Hanson incorporated the statement of facts in his state board brief into his superior court brief, the only issues raised before the superior court were whether the local board’s decision was arbitrary and whether there was evidence to support its findings and conclusions.


author: Barnes, Judge.

text:
    A00A2297.
    AALON et al. v. THE STATE.
    (543 SE2d 78)
   Barnes, Judge.

Abdulrazar Aalon and Mustaf Mohamed appeal their convictions of entering an automobile. They argue that the trial court erred in denying their motion for a mistrial due to a violation of the rule of sequestration, in allowing the State to introduce evidence of a prior similar transaction without giving proper notice first, and in denying their motion for new trial because insufficient evidence supports the verdicts. For the reasons that follow, we affirm.

We view the evidence on appeal in the light most favorable to the verdict and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997).

Viewed in the light most favorable to the verdict, the evidence at trial established that, in the early morning hours of October 20, 1998, two residents of a DeKalb County apartment complex looked out their separate apartment windows at the parking lot below. They saw three men gathered around another neighbor’s car. One eyewitness testified that he saw the three men going back and forth from their car to the neighbor’s car. One of the men retrieved a hanger from his car and was trying to get into the car through the driver’s side window, and the other two men were going from tire to tire trying to fit a lug wrench onto the wheel lugs.

The other eyewitness testified that when he looked out, he saw one man in the driver’s seat of his neighbor’s car, one at the open trunk, and the third kneeling on the ground by the right rear side of the car. He asked his wife to call the police and went outside to confront the men, whom he knew. The man kneeling on the ground was trying to take the wheel off the car, and the witness asked him what he was doing and told him to get up off the ground. The man in the car said it was his and he was trying to hook up a stereo system, to which the witness replied, “Man, you ain’t hooking up no doggone system, get out of that car.” The witness testified that he looked in the men’s car and saw a Kenwood compact disc player installed that had been stolen from him a month earlier, along with a CD case on the floorboard with his initials on it. Both witnesses identified the defendants as two of the three men they saw that night.

The victim testified that she went down to her car after the police arrived and identified as hers a piece of stereo equipment found in the trunk of the men’s car. She also testified that the paint on her driver’s side door was chipped and a piece of the door was hanging loose, as if someone had tried to pry it open. Finally, she saw a lug nut that had been removed from one of her wheels, lying on the ground next to a lug wrench. The police arrived, arrested the three men, and took statements from the witnesses.

1. We conclude that the evidence as outlined above was sufficient for a rational trier of fact to find appellants guilty beyond a reasonable doubt of entering an automobile. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The appellants argue that the trial court erred in denying their motion for mistrial based on governmental misconduct and a violation of the rule of sequestration. Support for this motion was based on the following exchange between the investigating detective and defense counsel:

Q. Just prior to your testimony did you discuss the CD case with initials on it with the district attorney?
A. Yes.
Q. Did he tell you that that’s what the prior witness had said?
A. Did who tell me?
Q. Did the assistant district attorney tell you that the prior witness had said in his testimony that there was a CD case with initials on it?
A. He may have.

On redirect examination, the assistant district attorney held the following exchange with the witness:

Q. Let’s clarify, Detective. Counsel asked you previously about whether you and I had a discussion outside the courtroom; is that correct? '
A. Yes.
Q. Did we in fact have a discussion?
A. Yes. . . .
Q. Did you communicate at any time to myself or to anyone else in this courtroom as to whether or not you had to leave at a certain time?
A. Yes.
Q. And did we have a discussion about that?
A. Yes.
Q. Did I ask you whether or not there were certain things you could testify to?
A. Yes.
Q. What did you tell me about the CD case, about any CD case that [the witness] had discussed with you?
A. You asked me if [the witness] told me what he had seen, and I told you what he told me, which was he saw a CD case and a stereo.
Q. In asking you that, sir, did I tell you or did I give you any indication about what any witness in here had testified to?
A. No. Actually, before you asked that question you said that you could not tell me what was testified to.
Q. Do you in fact recall that conversation that you had with [the witness] where he told you about the CD case and the initials on it?
A. Yes, I do.

Decided November 28, 2000.

Sidney L. Moore, Jr., for appellants.

In denying the motion for mistrial, the trial court stated that it was satisfied, through the witness’s sworn testimony, that the assistant district attorney did not discuss any witness’s testimony with any other witness.

The rule of sequestration does not prohibit discussions between an attorney in the case and a prospective witness, as long as the attorney talks to him separately from the other witnesses and does not inform him of previous testimony. Ross v. State, 254 Ga. 22, 28 (4) (a) (326 SE2d 194) (1985). In this case, appellants argue that the district attorney indirectly told or implied to the officer that a witness had testified about initials on a CD case by telling the officer he could not tell him about other witnesses’ testimony and then immediately asking what the witness saw. According to appellants, this explains why the detective testified that the assistant district attorney “may have” told him what the witness said.

When the rule of sequestration is violated, the violation goes to the credibility rather than the admissibility of the witness’ testimony. A party’s remedy for a violation of the rule is to request the trial court to charge the jury that the violation should be considered in determining the weight and credit to be given the testimony of the witness.

(Citations omitted.) Johnson v. State, 258 Ga. 856, 857-858 (376 SE2d 356) (1989). Appellants requested no such charge here, and we find no abuse of discretion in the trial court’s denial of the appellants’ motion for a mistrial. See Quijano v. State, 271 Ga. 181, 183 (2) (516 SE2d 81) (1999).

3. The appellants argue that the trial court erred in allowing the State to present evidence regarding a previous similar transaction without proper notice and a hearing under Uniform Superior Court Rule 31. This similar transaction is the eyewitness’s testimony that he saw his stolen CD player and CD case in the defendants’ vehicle. However, the appellants never raised this objection at trial, and they vigorously cross-examined the eyewitness about his testimony, the investigating detective twice about the witness’s statement, as well as the arresting officer. “By failing to object at trial, [the appellants] cannot raise the issue on appeal.” Williams v. State, 267 Ga. 308, 310 (3) (477 SE2d 570) (1996). We find no error.

Judgment affirmed.

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

J. Tom Morgan, District Attorney, Kristin L. Wood, Assistant District Attorney, for appellee.


text:
    A00A2479.
    HARRIS v. THE STATE.
    (543 SE2d 75)
   Barnes, Judge.

Christopher Lamar Harris appeals his conviction of theft by receiving a motor vehicle. The trial court sentenced him to serve eight years of a ten-year sentence. After reviewing the record, we agree that the evidence against him was insufficient and reverse the conviction.

The evidence at trial established that the car owner saw a man getting into her car as she came out of a video store on July 1, 1999. She tried to stop him, but the man took her keys and drove off in her car. The next day, two Cherokee County narcotics agents in an unmarked car saw the stolen car pass illegally and contacted the Canton police to “check them out.” Officers in a marked police car attempted to pull the car over using their lights and siren, but the car turned onto the expressway and began driving 100 mph. The stolen car then turned off the highway and escaped from the pursuing police and narcotics agents.

After searching the surrounding neighborhoods for approximately 20 minutes, the agents pulled into a driveway and saw the stolen car. The doors to the house and garage were open, and the agents called 911 for backup. Two men ran out of the house. One of the men was Harris, who began running toward the woods but stopped after an agent repeatedly yelled “sheriff’s department.” A detective testified that witnesses identified the driver of the car as Christopher Nixon, Harris’s co-defendant. Evidence that Nixon pled guilty to theft by receiving a stolen vehicle and attempting to elude a police officer and was sentenced to serve two years, was not introduced at Harris’s trial.

Harris explained to a Cherokee County investigator that he and Nixon had been staying at a Cartersville motel. Nixon went out and came back driving the car. Harris said he asked where the car came from, and Nixon said he had borrowed it for $20 from a man staying a few rooms down the hall from them. The two got in the car, drove around for a while, and picked up two women. Harris told the detective that “at one point” he tried to call the car owner at the motel, but did not remember the motel name, did not remember where he got the phone number from, and did not know the owner’s name. The detective testified, “I asked him, ‘Well, how did you try to contact him if you don’t know who you’re calling or where he’s at?’ He said he didn’t remember.”

The car owner testified that when she got her car back, it had been “trashed,” with records all over the inside of the car, a very muddy interior, stereo equipment missing from the trunk, and additional stereo equipment and clothing she had never seen before in the trunk. The front end had been wrecked, and a front tire was dented.

OCGA § 16-8-7 (a) provides:

A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.

All the evidence presented indicates that Harris was a passenger in the stolen car, not the driver. Therefore, we must consider whether the State presented sufficient evidence that Harris knew the car was stolen and that he acquired possession or control of the car.

[R]iding in a stolen van or automobile as a passenger does not support a conviction for theft by receiving unless the accused also, at some point, acquires possession of or controls the vehicle, i.e., has the right to exercise power over a corporeal thing, or there exists some evidence, either direct or circumstantial, that the accused was a party to the crime by aiding and abetting its commission.

(Citations and punctuation omitted.) In the Interest of C. W., 226 Ga. App. 30, 31 (485 SE2d 561) (1997). In Hurston v. State, 202 Ga. App. 311 (1) (414 SE2d 303) (1991), we concluded that the State presented sufficient evidence that the defendant passenger knew the car was stolen by establishing that: the defendant admitted doubting the car belonged to the driver; the steering wheel was damaged; the car was driven without keys; personal papers including the car registration in the owner’s name were strewn about the disheveled interior; and a picture of the owner’s daughter was displayed on a visor. Id. at 312-313 (1). We determined that the State presented sufficient evidence of “possession or control” as required by OCGA § 16-8-7 by establishing that the driver “left [the defendant] alone in the car with the vehicle running when he went into the convenience store.” Id. at 313 (1).

Similarly, we have affirmed passengers’ convictions of theft by receiving where the State showed that the defendant was in the car a few hours after it was stolen; the owner’s personal items were strewn about the car; the steering column was damaged; the car was driven without keys; the defendant fled the scene when stopped by a police officer; and the defendant had in his possession items “that appeared to have been taken from the car.” Sanders v. State, 204 Ga. App. 545, 546 (1) (a) (419 SE2d 759) (1992).

Decided November 28, 2000.

Gregory A. Hicks, for appellant.

Garry T. Moss, District Attorney, Scott T. Poole, Assistant District Attorney, for appellee.

Finally, we affirmed where the evidence showed that the defendant admitted the car was stolen; the car was used in an armed robbery in which the defendant participated, after which a chase ensued; and the steering column was damaged. Johnson v. State, 236 Ga. App. 356, 357 (1) (511 SE2d 921) (1999).

We did not separately address the element of “possession or control” in Sanders and Johnson.

Unlike the cases cited above, in the case before us, the State presented no evidence that the steering column was damaged, the car was driven without keys, the owner’s personal papers were scattered throughout the car, the defendant had stolen property in his possession, or the defendant admitted doubts as to the car’s ownership. The State presented no evidence that Harris exerted possession or control over the vehicle. The evidence presented was that Harris was a passenger, and he ran from the police. “Therefore, lacking evidence that the appellant ever possessed or controlled the [car] under OCGA § 16-8-7 (a) or affirmatively acted as a party to the crime under OCGA § 16-2-20 (b),” his conviction of theft by receiving a motor vehicle must be reversed. In the Interest of C. W., supra, 226 Ga. App. at 32; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment reversed.

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


author: Eldridge, Judge.

text:
    A00A2576.
    JONES v. THE STATE.
    (543 SE2d 72)
   Eldridge, Judge.

A Whitfield County jury convicted John Paul Jones of a single count of child molestation under OCGA § 16-6-4. He was sentenced to fourteen years confinement to serve seven years and the remainder probated. The defendant appeals, contending that the superior court erred in denying his motion for new trial because the evidence was insufficient to support the jury’s verdict; that the sentence was excessive as not tailored to fit the offender; and that the court’s charge on voluntariness as to his confession was inadequately adjusted to his claim that he was in custody and, citing United States v. Satterfield, 558 F2d 655, 657 (2nd Cir. 1976), was silent with respect to the higher standard applicable to waiver of the Sixth Amendment right to counsel when a confession is given by one who is “distraught, upset, weeping and obviously out of control.” Finding that defendant’s claims of error lack merit, we affirm.

The testimony of the victim, a four-year-old child, and the adults to whom the victim made statements and defendant’s confession upon being interrogated by the police show that the defendant lured the victim to his house by accusing her of stealing the toy she was playing with outside her house. Once there, the victim and the defendant’s son followed the defendant into his bedroom. The defendant then used the bathroom off the bedroom. When he reentered the bedroom, his pants were down and only the victim was present. The defendant pulled the victim’s shorts and panties down, laid her on her back on his bed, and had her roll over, on both occasions getting on top of her and rubbing her vagina and anal area, respectively, with his penis. The defendant gave the victim a cookie afterward and a small toy which he placed in her panties. He then sent the victim home with the admonition that she not “tell.” Upon being examined after the incident, the examining physician found a black pubic hair between the victim’s vaginal area and her anus.* Held:

1. On appeal the evidence must be viewed most favorably in support of the verdict; the defendant no longer enjoys the presumption of innocence; we determine evidentiary sufficiency alone, neither weighing the evidence nor determining the credibility of witnesses; and any conflicting testimony of the witnesses is a question of credibility for the jury to resolve. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). Review of the transcript reveals ample evidence upon which any rational trier of fact could find the defendant guilty of the offense of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hendrix v. State, 230 Ga. App. 604, 607 (5) (497 SE2d 236) (1997).

2. Neither is there merit in defendant’s claim that the superior court abused its discretion by imposing an excessive sentence against him. The superior court imposed a sentence to confinement well within statutory limits, a portion of which was imposed to serve and the remainder probated. “ ‘A determinate sentence which falls within statutorily mandated parameters is not subject to attack on Eighth Amendment grounds. (Cit.)’ ” Inglett v. State, 239 Ga. App. 524, 529 (9) (521 SE2d 241) (1999), citing Pollard v. State, 230 Ga. App. 159, 161 (5) (495 SE2d 629) (1998).

3. Last, we conclude that the superior court fully and fairly charged the jury on voluntariness as to defendant’s confession. At trial, the defendant maintained that he was in custody at the time he was interrogated; the police officers to whom he confessed testified to the contrary. Nonetheless, the record reflects that the defendant gave his statement only after the interrogating officers warned him of his Fifth Amendment rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), inclusive of the Miranda right to counsel, and he waived the same by his signature on a rights waiver form. On its own motion, the trial court substantially charged the jury as to the law related to the voluntariness of defendant’s pre-trial statement, pointing to the Miranda rights of an accused, the steps to be taken if the accused requests counsel, and the elements to be considered in determining the voluntariness of any subsequent statement. We find the court’s description thoroughly covered the factors to be considered in weighing the totality of the circumstances and clearly informed the jurors that they should address each factor.

Defendant misplaces his reliance upon United States v. Satterfield, supra, for the proposition that the superior court’s voluntariness charge was deficient because it failed to instruct the jury to determine voluntariness upon finding a waiver of the Sixth Amendment right to counsel. While the court in Satterfield suppressed a distraught accused’s confessions because the government failed to show waiver of the Sixth Amendment right to counsel, the court did so not because of Fifth Amendment voluntariness issues, but because the statements had been made after the accused’s indictment and his Sixth Amendment rights had attached. Id. at 657. “[T]he Sixth Amendment right to counsel clearly does not attach simply because the accused is in custody, or has been arrested. Rather, the Sixth Amendment right to counsel exists to protect the accused ‘during trial-type confrontations with the prosecutor’ and thereafter.” (Citations omitted.) Ross v. State, 254 Ga. 22, 27 (3) (b) (326 SE2d 194) (1985); compare Kirby v. Illinois, 406 U. S. 682, 688-689 (92 SC 1877, 32 LE2d 411) (1972) (Miranda exclusively based upon Fifth and Fourteenth Amendments, the Sixth Amendment right to counsel attaching after adversary judicial proceedings initiated).

Decided November 28, 2000

Ronald G. Shedd, for appellant.

Kermit N. McManus, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.

Inasmuch as adversary judicial proceedings had not begun against the defendant at the time the defendant confessed, the Sixth Amendment right to counsel had not attached. Ross v. State, supra at 26-27, n. 3, citing Brewer v. Williams, 430 U. S. 387 (97 SC 1232, 51 LE2d 424) (1977); McLeod v. Ohio, 381 U. S. 356 (85 SC 1556, 14 LE2d 682) (1965); Massiah v. United States, 377 U. S. 201 (84 SC 1199, 12 LE2d 246) (1964). It follows that there was no error for failure to instruct thereon.

Given that the record does not indicate that the defendant requested a voluntariness charge; that though he reserved objections, he interposed no specific objection to the court’s voluntariness charge at trial; that the charge was sua sponte upon defendant’s testimony and not misleading or confusing as properly tailored, see Davis v. State, 181 Ga. App. 28, 29 (2) (351 SE2d 458) (1986) (“[t]he trial court’s duty in delivering charges to the jury is to tailor those charges not only to the indictment but also ... to the evidence at trial. [Cits.]”); and that we find no error clearly harmful as a matter of law, this enumeration is also without merit. Byrd v. State, 156 Ga. App. 522-523 (2) (275 SE2d 108) (1980).

Judgment affirmed.

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

       OCGA § 16-6-4 (a) provides that “[a] person commits the offense of child molestation when he or she does any immoral act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”

       The pubic hair was sent to the State Crime Laboratory for analysis, but results were not available at the time of trial.

       The superior court was authorized to impose a maximum sentence of 20 years confinement upon the single count of child molestation for which defendant was convicted. OCGA § 16-6-4 (b).


author: Miller, Judge.

text:
    A00A1849.
    ELLERBEE v. THE STATE.
    (542 SE2d 146)
   Miller, Judge.

In November 1996, Sherrod Ellerbee was tried before a jury and found guilty of a single count of violating the Georgia Controlled Substances Act. A timely motion for new trial was filed urging the general grounds. In February 2000, this motion was amended to complain of the admission of a similar transaction. In March 2000, the amended motion was denied and a timely notice of appeal was filed. In six related enumerations of error, Ellerbee complains of the admission of his prior conviction for selling cocaine. He further enumerates purported restrictions on his cross-examination and chailenges the sufficiency of the evidence. We affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence revealed that around 1:00 p.m. on April 25, 1996, agents from the Upson County Narcotics Task Force were on routine patrol when one recognized Ellerbee, with two unknown males, standing at the comer of a dead-end street known as a high drug area. Ellerbee was beside a car with something in his hand. He looked at the officers, dropped his hand and took off running. Something fell to the ground, and while one agent pursued Ellerbee, the other recovered 13 individually wrapped green plastic bags, each containing what appeared to be “dime rocks,” that is, $10 worth of crack cocaine. In the officer’s experience, this is how crack cocaine is commonly prepared for distribution and the total quantity (13 rocks) was excessive for individual use.

Proof of a similar transaction was admitted for the limited purpose of showing the identity of the perpetrator and his intent or motive. In February 1994, Tony Brown, then an undercover officer with the City of Newnan police, made a controlled buy of crack cocaine in Upson County. According to Brown, Ellerbee approached Brown’s car and asked him what he needed. When Brown asked for “$20 worth [, Ellerbee] motioned to a second . . . male, who came over . . . and sold [Brown] $20 worth of crack cocaine.” This crack cocaine was packaged in small green plastic bags. With the assistance of counsel, Ellerbee pled guilty to this offense in April 1995 and received five years probation.

1. Procedurally, Ellerbee contends the trial court erred in admitting proof of his earlier conviction for the sale of cocaine, arguing (a) the State failed to give him proper notice under Uniform Superior Court Rule 31.3 (B) and (b) the State failed to present sufficient evidence at the pre-trial hearing on admissibility.

(a) USCR 31.1 requires that the State’s notice of intent to present evidence of similar transactions or occurrences “shall be given and filed at least ten (10) days before trial unless the time is shortened or lengthened by the judge.” Ellerbee’s trial commenced on November 20,1996, and the State filed its notice of intent on October 24, 1996, with a certificate that service of the notice was made that same day by telefacsimile. The USCR 31.3 notice specifies that the extrinsic act is Ellerbee’s prior “SALE OF COCAINE” in Upson County on April 10, 1995 (the date of sentencing). Nevertheless, the notice failed to fully comply with USCR 31.3 (B), which requires that “[c]opies of accusations or indictments, if any, and any guilty pleas or verdicts, if any, shall he attached to the notice.”

In response to Ellerbee’s objection at the pre-trial hearing on the admissibility of the similar transaction, the State’s Attorney did not claim inadvertence or oversight but attempted to put the onus on defense counsel. The State argued that any claimed lack of proper notice was disingenuous because, since the prosecutor had found Ellerbee’s guilty plea on file in the clerk’s office, defense counsel could have found it also, or at least asked his client about the noticed offense.

(i) The prosecuting attorney is an officer of the court and in that capacity has a duty to seek justice and not merely obtain convictions. Both the Court of Appeals of Georgia and the Supreme Court of Georgia have previously

registered] our stern disapproval of tactics which give rise to the appearance that the prosecution, by act or omission, has attempted to subvert or circumvent the right of an accused to have reasonable pretrial “access to evidence,” (cit.), as that right is protected by the Georgia and U. S. Constitutions, the statutes of this State, and the Uniform Superior Court Rules.

The trial court erred in failing to require the State to timely produce the indictment and guilty plea (State’s Exhibit 2) of the similar transaction, as plainly mandated by USCR 31.3 (B).

(ii) Nevertheless, the failure of the State to attach copies of the indictment and guilty plea to fully comply with USCR 31.3 (B) does not require automatic reversal or exclusion of the similar transaction evidence, but is subject to testing for harm. Noncompliance puts the burden on the State to prove that its violation of the rule did not harm the defendant.

The withheld special presentment charged Ellerbee with violating the Georgia Controlled Substances Act by “knowingly sell[ing] Cocaine,” and lists Brown and Cindy O’Neal of the Coweta County Sheriff’s Department as witnesses. The withheld guilty plea, entered with the assistance of counsel, indicates Ellerbee received a five-year sentence, to be served entirely on probation. At the admissibility hearing, the State summarized the expected testimony of Agent Brown, who made the controlled buy of crack cocaine with Ellerbee acting as agent or go-between. The fact that Ellerbee was a party or perpetrator is established by his guilty plea. Defense counsel immediately seized on the factual difference between dropping cocaine from one’s hand and being present at the scene of a drug transaction in opposing the admissibility of the prior sale. Ellerbee did not request a postponement to interview Brown. Although we do not condone the unexcused failure of the State to attach copies of the indictment and guilty plea to the USCR 31.3 notice, we conclude that obvious error was harmless in this instance, because the defense was given actual notice of the particulars and the disposition of the earlier offense.

(b) The fifth enumeration contends the State failed to present sufficient evidence at trial to support its pre-trial prima facie showing. We disagree.

(i) At the USCR 31.3 (B) hearing, the State must make three affirmative showings: (1) that the extrinsic act evidence is submitted for a proper purpose, and not to raise an improper inference about the accused’s bad character; (2) that the accused committed the extrinsic act or offense and (3) that there is a sufficient connection or similarity between the extrinsic act and the crime charged so that proof of the former tends to prove the latter. For purposes of establishing a prima facie case for admissibility at the pre-trial USCR 31.3 (B) hearing, the prosecutor may “state in his place” the relevant facts of the prior conviction. That was done here.

(ii) At the pre-trial hearing, the State assured the court that there would be testimony that, in the instant prosecution, Ellerbee “was in the act of counting out his individual bags as the officers drove up. . . .” At trial, the arresting officer did not include this detail. From this omission, Ellerbee argues the State failed to meet its evidentiary burden to present the trier of fact with evidence establishing both that the accused committed the extrinsic act and that the connection between the extrinsic act and the charged offense tends to prove that Ellerbee committed the latter. In our view, the evidence of eyewitness Brown, relating to the jury the factual circumstances of the prior sale of cocaine, in conjunction with the certified copy of Ellerbee’s guilty plea, is sufficient to meet this evidentiary burden.

2. Substantively, Ellerbee contends the trial court erred in admitting the similar transaction evidence because the State failed to: (a) show a proper purpose; (b) establish the requisite connection between the prior offense and the instant transaction and (c) employ the proper standard for admissibility to show identity. Ellerbee further argues that the probative value of this evidence outweighed its prejudicial effect and improperly put his character at issue.

(a) Regarding proper purpose and the requisite connection between the two acts, Ellerbee mistakenly focuses upon the differences between the prior and instant transactions “rather than correctly focusing on their similarities,” as would establish relevance. “While Uniform Superior Court Rule 31.3 speaks [in terms] of‘similar’ transactions, the issue of admissibility of extrinsic transactions has never been one of‘mere similarity.’ It is, rather, ‘relevance to the issues in the trial of the case.’ ”

Independent crimes are admissible to show motive, intent, plan, identity, bent of mind or course of conduct. In Georgia,

[a] much greater degree of similarity between the charged crime and the uncharged crime is required when the evidence of the other crime is introduced to prove identity than when it is introduced to prove a state of mind. Much more is demanded than the mere repeated commission of crimes of the same class, such as repeated murders, robberies, or rapes. The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.

Evidence that, within the two past years, Ellerbee sold crack cocaine in green plastic wrapping in the same jurisdiction is, in our view, distinctive and unusual enough to be some evidence of identity. Thus, the prior guilty plea to the charge of selling cocaine was substantially relevant to corroborate the in-court identification of Ellerbee as the seller in this transaction. It was also admissible to establish Ellerbee’s bent of mind or guilty knowledge and so rebut an inference of mere presence at the scene of the crime. The trial court did not abuse its discretion since proper purposes and the requisite connection were shown. The first and second enumerations are without merit.

(b) The conclusion that Ellerbee’s prior conviction for the sale of cocaine was more probative than prejudicial is implicit in the trial court’s determination that the similar transaction was substantially relevant for an appropriate limited purpose. Relevant extrinsic acts evidence is not rendered inadmissible despite its incidental tendency to discredit the character of the accused. The fourth enumeration is without merit.

3. A trial court does not abuse its discretion in limiting a defendant’s cross-examination to relevant matters. Here, the trial court did not impermissibly restrict the scope of Ellerbee’s cross-examination by sustaining the State’s relevancy objection to the extent of a witness’s training in the preparation of photographic lineups, since no such lineup was introduced into evidence by the State.

4. The in-court identification of Ellerbee as the man next to a car in a known drug area, who fled upon espying the police, dropping what was identified as 13 individually wrapped packages of crack cocaine, is sufficient under the standard of Jackson v. Virginia to authorize the jury’s verdict that he is guilty, beyond a reasonable doubt, of selling cocaine as alleged in the indictment.

Judgment affirmed.

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

Decided November 9, 2000

Reconsideration denied November 29, 2000.

Lindsey & Jacobs, Tamara Jacobs, for appellant.

William T McBroom III, District Attorney, Jamie K. Inagawa, Assistant District Attorney, for appellee.

       (Emphasis supplied.)

       Compare Sweatman v. State, 181 Ga. App. 474-475 (1) (352 SE2d 796) (1987) (where failure to attach prior indictment and guilty plea is inadvertent, substantial compliance with USCR 31.3 is sufficient).

        Floyd v. State, 272 Ga. 65, 67 (2) (525 SE2d 683) (2000).

        Carr v. State, 267 Ga. 701, 711 (10), in. 5 (482 SE2d 314) (1997) (quoting Bentley v. State, 210 Ga. App. 862, 863 (2) (a) (438 SE2d 110) (1993)), overruled in part on other grounds, Clark v. State, 271 Ga. 6, 10 (5) (515 SE2d 155) (1999).

       See Walker v. State, 213 Ga. App. 407, 412 (5) (444 SE2d 824) (1994) (State’s USCR 31.3 (B) notice failed to give the date and county of two similar transactions and accused claimed prejudice in not being able to impeach a witness to the other crime with her own conviction. Held: Any deficiency in the notice was harmless because the witness admitted her own conviction.). Accord Howard v. State, 194 Ga. App. 443, 444 (390 SE2d 662) (1990) (State’s USCR 31.3 (B) notice failed to attach copy of guilty verdict for similar transaction but complied with all other procedural requirements, which the trial court considered sufficient notice. Held: Since appellant failed to show any prejudice from the admission of the similar transaction, any error in the failure to attach the guilty verdict to the notice was harmless.).

        Todd a State, 189 Ga. App. 538, 539 (1) (376 SE2d 917) (1988) (whole court).

        King v. State, 214 Ga. App. 311, 315-316 (5) (447 SE2d 645) (1994).

        Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

        Stephens v. State, 261 Ga. 467, 468 (6) (405 SE2d 483) (1991). Accord Traylor v. State, 217 Ga. App. 648, 649 (2) (458 SE2d 682) (1995).

       See Williams v. State, supra, 261 Ga. at 642 (2) (c).

       See Jones v. State, 206 Ga. App. 307 (425 SE2d 384) (1992) (testimony of arresting officers at USCR 31.3 (B) hearing, in conjunction with certified copy of conviction, sufficient). Compare Williams v. State, supra, 261 Ga. at 642 (2) (c) (State must do more than merely introduce certified copy of conviction in order to demonstrate sufficient connection).

       (Citation and punctuation omitted.) Smith v. State, 270 Ga. 68, 69 (2) (508 SE2d 145) (1998).

       (Citations omitted.) Cole v. State, 216 Ga. App. 68, 70 (1) (453 SE2d 495) (1994).

        Williams v. State, supra, 261 Ga. at 642 (2) (b), fn. 2.

       (Citation and punctuation omitted.) Cole v. State, supra, 216 Ga. App. at 70 (1).

       See, e.g., Shaw v. State, 211 Ga. App. 647, 648 (1) (440 SE2d 245) (1994). See also Felker v. State, 252 Ga. 351, 360 (1) (a) (314 SE2d 621) (1984). The third enumeration, arguing the trial court employed an improper legal standard for the admissibility of extrinsic acts as proof of identity, is moot.

        Evans v. State, 209 Ga. App. 606, 607 (2) (434 SE2d 148) (1993) (whole court).

        Brundage v. State, 231 Ga. App. 478, 480 (2) (499 SE2d 408) (1998).

       See, e.g., Menefee v. State, 270 Ga. 540, 543 (3) (512 SE2d 275) (1999).

        Evans v. State, supra, 209 Ga. App. at 607 (2). See also Sisson v. State, 232 Ga. App. 61, 66 (3) (b) (499 SE2d 422) (1998) (the calculus whether relevant and admissible extrinsic acts evidence should nevertheless be excluded as more prejudicial than probative need not be an express determination on the record).

        Farley v. State, 265 Ga. 622, 623 (2) (458 SE2d 643) (1995).

        Shepherd v. State, 245 Ga. App. 386, 388 (3) (537 SE2d 777) (2000).

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

        Dodson v. State, 244 Ga. App. 94, 95 (534 SE2d 815) (2000).


text:
    A00A2044.
    WILLIAMS v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (542 SE2d 199)
   Eldridge, Judge.

This case raises the issue (1) whether the Metropolitan Atlanta Rapid Transit Authority (“MARTA”) comes under the Georgia Employer’s Liability Act (“GELA”) as a “common carrier” under OCGA § 34-7-40 et seq., excluding coverage under the Workers’ Compensation Act (“WCA”) pursuant to OCGA § 34-9-1 et seq., or (2) whether MARTA, under OCGA § 34-9-1 et seq., is a common carrier that comes under the WCA. We find that, while MARTA is a common carrier and operates rail transportation, the General Assembly did not intend that it come under GELA but intended it to come under the WCA, as do all other authorities, whether state or local.

Fred Williams was an employee of MARTA when he received catastrophic injuries arising out of and in the course of his employment as a MARTA employee; he and his wife, Melissa Anne Williams, sued MARTA in tort. MARTA answered and raised an exclusive workers’ compensation defense. The trial court entered a summary judgment for MARTA on this defense.

Plaintiffs contend that the trial court erred in granting summary judgment, because MARTA is a “common carrier by railroad.” We do not agree.

MARTA, by creation and legislative enactment of the General Assembly, is a state-created local public authority. By definition of such an employer, it comes under OCGA § 34-9-1 (3), as do all other authorities; such limited coverage was a condition of an authority’s waiver of sovereign immunity. Although this is a case of first impression, the courts have treated MARTA as subject to the WCA. See Parsons Brinckerhoff/Tudor v. Bowman, 171 Ga. App. 496 (321 SE2d 221) (1984); see also MARTA v. Ledbetter, 184 Ga. App. 518 (361 SE2d 878) (1987); MARTA v. Powell, 198 Ga. App. 811 (402 SE2d 805) (1991).

MARTA is a local authority; as a local authority, MARTA has expressly waived sovereign and governmental tort immunity as a part of its creation and waived tort immunity. See Ga. L. 1965, pp. 2243, 2275, § 22; Ga. L. 1971, pp. 2092, 2101, § 22; Campbell v. Ga. Dept. of Corrections, 268 Ga. 408, 410 (490 SE2d 99) (1997); Glover v. Donaldson, 243 Ga. 479, 481 (254 SE2d 857) (1979).

Decided November 14, 2000

Reconsiderations denied November 29, 2000

Butler & MacDougald, Larry K. Butler, Daniel MacDougald III, David A. Webster, for appellant.

Chambers, Mabry, McClelland & Brooks, Walter B. McClelland, Goodman, McGuffey, Aust & Lindsey, C. Wade McGuffey, Jr., Jennie R. Halenza, Robert J. Routman, for appellee.

Thus, under OCGA § 34-9-1 (3), the WCA defines “employer” as the “State of Georgia and all departments, instrumentalities, and authorities thereof”; authorities are subject to workers’ compensation by express legislative mandate. See Nunnally v. Fulton-DeKalb Hosp. Auth., 171 Ga. App. 12 (318 SE2d 759) (1984); Fulton-DeKalb Hosp. Auth. v. Dean, 169 Ga. App. 277 (312 SE2d 156) (1983). While MARTA, as a local authority, is expressly excluded from sovereign immunity and governmental immunity, such waiver was conditioned upon MARTA’s being governed by the WCA as all other authorities. See generally Campbell v. Dept. of Corrections, supra at 410; Glover v. Donaldson, supra at 481.

Judgment affirmed.

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

       Prior to the passage of OCGA § 34-9-1 (3) in Ga. L. 1980, p. 1145, § 1, in FultonDeKalb Hosp. Auth. v. Gaither, 241 Ga. 572 (247 SE2d 89) (1978), the Supreme Court held that a hospital authority was a local authority with the rights, privileges, and immunities thereof. As a consequence, such an authority could not be liable for workers’ compensation liability absent legislation.


author: Johnson, Chief Judge.

text:
    A99A2352.
    BRANTLEY v. THE STATE.
    (543 SE2d 406)
   Johnson, Chief Judge.

The decision of the Court of Appeals in this case having been affirmed in part and reversed in part by the Supreme Court, Brantley v. State, 272 Ga. 892 (536 SE2d 509) (2000), our decision in Brantley v. State, 242 Ga. App. 85, 86 (1) (b) (528 SE2d 264) (2000), is hereby vacated in part, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Phipps and Mikell, JJ, concur.

Decided November 29, 2000.

Gerard B. Kleinrock, for appellant.

J. Tom Morgan, District Attorney, Maria Murder-Ashley, Gregory J. Lohmeier, Assistant District Attorneys, for appellee.