text:
    76607.
    WILLIAMS v. THE STATE.
    (372 SE2d 840)
   Benham, Judge.

In this appeal from his conviction for burglary, appellant’s only enumeration of error is that the evidence is insufficient to support the verdict. The authority for appellant’s argument on that issue is Vaughn v. State, 136 Ga. App. 54 (220 SE2d 66) (1975), where this court reversed the conviction because the circumstantial evidence, including fingerprints found at the scene of the crime, was not sufficient to exclude every reasonable hypothesis other than that of the defendant’s guilt. The defendant in that case put forth a reasonable hypothesis which was consistent with all the evidence adduced against him.

We find this case more like Mercer v. State, 169 Ga. App. 723 (1) (314 SE2d 729) (1984). There, as here, there was evidence contradicting the defendant’s explanation for the presence of his fingerprints, and there was other evidence supporting the hypothesis of his guilt. “To sustain a conviction which is based solely on fingerprint evidence, ‘the fingerprints corresponding to those of the accused must have been found in the place where the crime was committed, under such circumstances that they could only have been impressed at the time when the crime was committed.’ [Cits.] Where there is additional circumstantial evidence, however, a conviction is warranted if the proved facts are consistent with the hypothesis of guilty and exclude every other reasonable hypothesis save that of guilt. [Cits.]” Id.

The other evidence presented against appellant included the following: appellant was aware of the presence of the cash that was stolen because it was the accumulated assets of the Christmas savings club of which appellant had been a member until he withdrew his contribution a few months before the burglary; a trail of coins led from the victims’ door to a spot about 20 yards from appellant’s door, making a line straight to appellant’s door; one of the victims testified that she saw appellant entering his house two doors down from hers as she was calling the police to report the crime; items belonging to the victims were piled beside their door, indicating that the burglar had not finished before one of the victims returned home; and appellant admitted that he was at home at the time one of the victims discovered the burglary. Appellant’s fingerprint was discovered on a window screen found under the bedroom window through which entry to the building was accomplished. He testified that the fingerprint could have gotten there one of two ways: when he picked up the screen from the ground while his sons cut the victims’ grass on any one of several occasions; or when he was in the victims’ home for a meeting of the Christmas savings club. The victims testified, however, that the screen had never been on the ground and that when appellant was in their home, he never had permission nor occasion to go into the bedroom. “The appellant’s explanation having thus been contradicted, we find the fingerprint evidence along with the other circumstantial evidence sufficient to exclude every other reasonable hypothesis save that of the appellant’s guilt. [Cit.]” Id. The evidence adduced at trial, considered in its totality, was sufficient to authorize a rational trier of fact to find appellant guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.

Decided September 7, 1988.

Christopher C. Edwards, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, James E. Sherrill, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    76664.
    CRUMBSY v. THE STATE.
    (372 SE2d 669)
   McMurray, Presiding Judge.

Defendant was convicted of three violations of the Georgia Controlled Substances Act: possession of marijuana with intent to distribute, selling marijuana, and selling cocaine. Defendant appeals. Held:

1. Defendant raises for the first time on appeal the contention that he was not afforded effective assistance of trial counsel. On October 13, 1987, a motion for new trial was filed on behalf of defendant by appellate counsel, not by trial counsel. Since that motion remained pending before the trial court, until denied by an order filed January 26, 1988, defendant’s case became subject to the rationale of the decision in Thompson v. State, 257 Ga. 386 (359 SE2d 664) (decided September 9, 1987). Therefore, since the case sub judice was pending before the trial court when Thompson became effective, the failure to amend the previously filed motion for new trial to include the claim of ineffective trial counsel results in a waiver of that claim. Foote v. State, 184 Ga. App. 900 (1) (363 SE2d 180).

2. Defendant also enumerates as error the trial court’s ruling, after a Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) hearing, admitting into evidence defendant’s incriminating statements to law enforcement officers. The State’s evidence shows that defendant was twice advised of his Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) rights prior to making the statement at issue; that defendant was not threatened; that no promises were made to defendant; that defendant indicated that he was willing to make a statement; that defendant refused to sign a form acknowledging receipt of the Miranda warnings; and that defendant appeared to know what he was doing. Defendant made an oral statement to law enforcement officers which was reduced to a writing by an officer and signed by defendant. Defendant’s evidence is that his reason for not signing the Miranda warnings form was so he would not have to answer questions without an attorney and that the written statement had been altered after he signed it. “ ‘ “In deciding the admissibility of a statement during a Jackson-Denno hearing, the trial court ‘must consider the totality of the circumstances’ and must determine the admissibility of the statement under the ‘preponderance of the evidence’ standard. Unless the factual and credibility findings of the trial court are ‘clearly erroneous,’ the trial court’s decision on admissibility will be upheld on appeal. (Cit.)” Fowler v. State, 246 Ga. 256, 258 (271 SE2d 168) (1980).’ Howard v. State, 180 Ga. App. 817 (1) (350 SE2d 825) (1986); Cunningham v. State, 255 Ga. 727 (2) (342 SE2d 299) (1986); Pierce v. State, 180 Ga. App. 847 (1) (350 SE2d 781) (1986).” Richardson v. State, 182 Ga. App. 827, 828 (3) (357 SE2d 162). See Cannon v. State, 257 Ga. 475, 477, 478 (2) (360 SE2d 592). Under the circumstances of the case sub judice, we find no error in the trial court’s ruling concerning the admissibility of defendant’s incriminating statements.

Decided September 7, 1988.

Frank B. Hester, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Thomas Jones, Richard E. Hicks, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Beasley, Judge.

text:
    76671.
    RICH v. THE STATE.
    (372 SE2d 670)
   Beasley, Judge.

Defendant was convicted of possession of over an ounce of marijuana, OCGA § 16-13-30 (j) (1). He appeals from the denial of his motion for new trial, in which he alleged error in the denial of his motion to suppress and contested the sufficiency of the evidence.

Construed favorably to the verdict, the evidence showed that defendant operated a tavern and package store on the highway near the Tattnall County/Candler County line. He rented the building, but not the land. With permission of the landowner, rent free, he had placed a trailer, his residence, on the property adjacent to the building. The trailer’s septic tank was approximately 25 feet behind it, and further behind was a sheetmetal fence blocking off the area from the adjacent pine forest. An open space in the fence allowed cars to access a circular driveway behind the tavern used for parking and turning around.

State, county and local officers, members of the Task Force on Drugs, were conducting a fly-over of Tattnall County in an effort to locate domestically grown marijuana. Just across the line, the State Patrol pilot saw two gardens of marijuana growing behind the tavern. The closest patch was 20-25 yards from the building and trailer, the second 20-25 yards behind the first. He directed the ground officers to these patches, and they pulled up the twenty or so mature marijuana plants. Both patches appeared to have been weeded and well-tended.

At the second patch, furthest from the building, the officers located a water hose which crossed both patches and was covered with pine straw. The officers followed the hose to the tin fence behind the trailer, where it went under the fence and, still covered with pine straw, through a drain pipe and into the septic tank, where the end was coiled. Hooked to the spigot of the trailer was an uncovered hose which went to the septic tank where it lay coiled. The two ends could be joined. A path lay from the trailer to the patches.

1. There was no affidavit submitted with the motion to suppress and no evidence introduced at the hearing on it. Argument was based on the factual allegations made in the motion. The motion alleged that the area where the marijuana was found was in defendant’s curtilage, i.e., “within the area normally used and occupied by the defendant.” The State argued that the marijuana was in plain view, accepting the allegation that it was within the curtilage.

In considering the motion to suppress, we consider the evidence introduced at trial as the only evidence bearing on the issue. Sanders v. State, 235 Ga. 425, 431 (219 SE2d 768) (1975).

In addition to the facts set out above, defendant testified that he had been in the area behind the tin screen only a few times, that it was grown over with bamboo and he had no business back there. He denied any knowledge of the patches, the pathway or the hose from the septic tank to the patches. He did acknowledge that the hose attached to the spigot was his, but denied that it was kept near the septic tank. He used the hose only to control trash fires. People often parked vehicles around the tavern, sometimes overnight, and due to the tavern having only one bathroom, customers often went into the woods. He surmised that one of them planted the marijuana.

Neither in the motion nor in the hearing did defendant specify the authority upon which he relied for his contention that the police actions were unlawful. During argument to the trial court, both sides discussed the applicability of the “plain view” doctrine in the context of the Fourth Amendment. That is all we address. Sanders v. State, 181 Ga. App. 117, 118 (1) (351 SE2d 666) (1986).

“It is the relationship of the person with the property searched that gives rise to the protection of the Fourth Amendment. [Cit.] Here, the appellant asserted no possessory or other interest in either the [marijuana] or in the . . . property where the search was conducted. ‘The Fourth Amendment right against unreasonable search and seizure is a personal right and may not be asserted vicariously. Rakas v. Illinois, 439 U. S. 128 (1) (99 SC 421, 58 LE2d 387). And, an individual who claims he is aggrieved by an illegal search and seizure only through the introduction of evidence secured by a search of a third person’s premises has not had any of his Fourth Amendment rights infringed. Id.’ ” Todd v. State, 184 Ga. App. 750, 751 (2) (362 SE2d 400) (1987).

Defendant contends that the patches were within the curtilage of his home, giving him standing to object to the search. But he lacked standing, so denial of the motion to suppress was not error. Britt v. State, 186 Ga. App. 418 (367 SE2d 298) (1988).

“Whether the place searched is within the curtilage is to be determined from the facts, including its proximity or annexation to the dwelling, its inclusion within the general enclosure surrounding the dwelling, and its use and enjoyment as an adjunct to the domestic economy of the family. [Cit.]” Payton v. State, 177 Ga. App. 104, 105 (338 SE2d 462) (1985).

Defendant’s argument is undermined by his own words. He specifically disclaimed any right to or use of the area behind the fence. He was not renting any of the land at issue, only the tavern building. The evidence does not even indicate that the property on which the marijuana was growing was owned by the building owner. The cases relied upon by defendant all include numerous facts concerning the usage of the area not present here. E.g., Norman v. State, 134 Ga. App. 767 (216 SE2d 644) (1975).

2. Defendant also contends that the evidence was insufficient, relying on the fact that others had “equal access” to the area where the marijuana was growing. But the equal access rule is premised on the evidentiary presumption attributing contraband to the head of the household where it is found. Heaton v. State, 139 Ga. App. 83, 84 (227 SE2d 854) (1976); Goode v. State, 130 Ga. App. 791 (2) (204 SE2d 526) (1974). It is not applicable to growing plants because they, like other vegetation, require a period of months to grow and mature. Fatora v. State, 185 Ga. App. 15, 17 (1) (363 SE2d 566) (1987); Graham v. State, 171 Ga. App. 242, 246 (3) (319 SE2d 484) (1984); Heaton, supra.

Defendant lived in the trailer alone, managing his bar. The photo of the property shows no other buildings in the vicinity. The plants were taller than the officers and appeared healthy and well cared for. The carefully concealed water source and the path led to the trailer. In order to connect the water hose, the top of the septic tank had to be opened, but defendant had never seen anyone near the tank. The evidence was sufficient to allow the jury to exclude any reasonable hypothesis other than defendant’s guilt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lewis v. State, 186 Ga. App. 349, 350 (1) (367 SE2d 123) (1988).

Judgment affirmed.

Birdsong, C. J., and Banke, P. J., concur.

Decided September 7, 1988.

Michael L. Chidester, for appellant.

Richard A. Malone, District Attorney, for appellee.


author: Pope, Judge.

text:
    76686.
    THE STATE v. McKENDREE.
    (372 SE2d 673)
   Pope, Judge.

Defendant, who was charged with violation of the Georgia Controlled Substances Act, filed a motion to suppress evidence obtained during a search of his residence and automobile on the ground the search warrant was issued without a sufficient showing of probable cause. The trial court granted the motion to suppress and the State appeals. The issue on appeal is whether the probable cause affidavit presented to the magistrate was sufficient to establish the reliability of the anonymous informant. We find the affidavit was sufficient to establish probable cause for issuing the search warrant. Accordingly, we reverse the order granting defendant’s motion to suppress.

In August 1985 a confidential informant told Deputy Sheriff Stanley Edgy of the Camden County Sheriff’s Department that the informant had personally seen the defendant growing, removing and replacing marijuana plants. In a sworn probable cause affidavit presented to the magistrate, Deputy Edgy stated, inter alia: “A confidential informant who is an ex-police officer and who has no prior criminal record and is a concerned citizen, has within the past week and a half personally observed the above mentioned suspect removing and growing marijuana plants from the described premises. Informant also observed said suspect replacing said plants in said premises. The above informant is personally known to this officer and has no known reason to falsify information.” On the basis of this affidavit, the magistrate issued a search warrant for the defendant’s mobile home and car. During their search, police officers found marijuana and traces of cocaine.

In Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), the United States Supreme Court approved a “totality of the circumstances” analysis for determining whether probable cause existed to issue a search warrant. The Supreme Court noted that “probable cause is a fluid concept” and that “[r]igid legal rules are ill-suited to an area of such diversity.” Id. at 232. Pursuant to the standard set forth in Illinois v. Gates, the courts are permitted to employ “a practical, common-sense approach to the requirement of probable cause relative to the issuance of search warrants.” State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). Even though this court was reversed on its conclusion that probable cause was lacking, the standard articulated in Stephens v. State, 167 Ga. App. 417 (307 SE2d 9) (1983), rev’d 252 Ga. 181 (311 SE2d 823) (1984), remains sound: “[T]he affidavit must set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.” Id. at 417. See also State v. Jackson, 166 Ga. App. 671 (305 SE2d 417) (1983).

Decided September 7, 1988.

Glenn Thomas, Jr., District Attorney, George E. Barnhill, Robert L. Crowe, Assistant District Attorneys, for appellant.

John J. Ossick, Jr., for appellee.

The affidavit in this case did not simply make the conclusory statement that the informant was reliable. The affidavit set forth several facts from which the magistrate could independently determine the reliability of the information and the informant. The informant was shown to be a former police officer who had no criminal record, who had no known reason to falsify information and who was personally known to the affiant. Further, the informant’s tip was based on his personal observation. These facts, taken together, show probable cause existed to issue the search warrant.

Judgment reversed.

McMurray, P. J., and Benham, J., concur.


author: Carley, Judge.

text:
    76722.
    MOTOR FINANCE COMPANY v. DAVIS et al.
    (372 SE2d 674)
   Carley, Judge.

Appellant-plaintiff filed suit in the magistrate court, naming both appellee and another individual as defendants. The magistrate court entered judgment in favor of appellant. Appellee then filed an appeal for de novo review by the superior court. See OCGA § 15-10-41 (b). Upon its de novo review, the superior court granted summary judgment in favor of appellee. Appellant then filed this direct appeal from the superior court’s order.

Appellee moved to dismiss this direct appeal, urging that, in seeking to file an appeal in an action for damages in which the judgment is $2,500 or less, appellant was required to secure the grant of an application for discretionary appeal under OCGA § 5-6-35 (a) (6). See Jarrett v. Ford Motor Credit Co., 178 Ga. App. 600 (344 SE2d 440) (1986); Lightwerk Studios v. Door Units of Ga., 184 Ga. App. 148, 149 (361 SE2d 32) (1987). Appellee’s motion to dismiss was denied because the provisions of OCGA § 5-6-35 (a) (6) do not apply to an appeal from a judgment in favor of a defendant. See City of Brunswick v. Todd, 255 Ga. 448 (339 SE2d 589) (1986); Brown v. Assoc. Fin. Svcs. Corp., 255 Ga. 457 (339 SE2d 590) (1986); Boatner v. Kandul, 180 Ga. App. 234 (348 SE2d 753) (1986). The only issue raised by appellee’s motion to dismiss was the applicability of OCGA § 5-6-35 (a) (6) and, accordingly, that is the only jurisdictional issue upon which this court has thus far ruled.

Decided September 7, 1988.

Berry B. Earle III, for appellant.

William U. Norwood III, George R. Lilly II, for appellee.

However, even though subsection (6) of OCGA § 5-6-35 (a) is inapplicable to this case, the instant appeal is one which is nevertheless discretionary. “OCGA § 5-6-35 (a) ([cit.]) provides: ‘Appeals in the following cases shall be taken as provided in this Code section: (1) Appeals from decisions of the superior courts reviewing decisions of . . . lower courts by certiorari or de novo proceedings . . .’As this appeal was not brought under the foregoing statute, the appeal . . . [is] dismissed. [Cits.]” Manley v. Williams, 166 Ga. App. 298, 298-299 (304 SE2d 468) (1983). Accordingly, inasmuch as the present case is one in which an application for discretionary appeal must be made under OCGA § 5-6-35 (a) (1) and appellant has failed to file such an application, this court has no jurisdiction over this direct appeal and must dismiss it.

Appeal dismissed.

Been, P. J., and Sognier, J., concur.


text:
    76744.
    EVANS-WATSON v. REESE.
    (372 SE2d 675)
   Beasley, Judge.

Sheila Evans-Watson appeals the grant of summary judgment to defendant Reese. The suit is for personal injuries due to Reese’s alleged negligence and violation of OCGA § 51-2-7 in regard to the management and control of Reese’s German Shepherd-type dog.

On appeal plaintiff insists that there is evidence showing that the dog was vicious and dangerous, that defendant knew of it, that the steps defendant took in the past and on this occasion to secure the dog constituted careless management and in effect allowed the dog to go at liberty, and that the county had an ordinance as described in the statute.

Defendant’s position is that the evidence shows conclusively that when she went to work, the dog was securely chained in her yard and the fence gate was closed and secure, and that it was the unauthorized intervening acts of a third person that released the dog.

To prevail on summary judgment, defendant was required affirmatively to negate one or more essential elements of the complaint. Corbitt v. Harris, 182 Ga. App. 81, 83 (354 SE2d 637) (1987); Reed v. Adventist &c. Systems/Sunbelt, 181 Ga. App. 750, 752 (2) (353 SE2d 523) (1987); OCGA § 9-11-56 (c). As posed by the conflicting views of the parties, the question is whether the evidence establishes beyond a jury’s debate that defendant met the legal standard so as not to be liable within the terms of the statute.

To describe what she did to keep the dog confined, defendant in affidavit merely stated that the dog “was securely chained behind [the] fence” and that “[tjhe gate to the fence was closed and secure.” She averred that she had no knowledge of any prior exhibition of vicious propensity by the dog, never gave anyone permission to take the dog off the “secured chain” or allow the dog to leave by opening the gate, and had no knowledge of any exhibition of vicious propensity by the dog.

Plaintiff’s evidence, which must be taken in its best light, showed as follows. Plaintiff was visiting her sister and was walking across the yard towards her sister, who was washing a car, when plaintiff heard a rattling noise. She turned to look over her shoulder and saw defendant’s large dog “racing” towards her, growling and showing its teeth. She started to run and slipped and fell on the edge of the driveway, resulting in significant injuries. Plaintiff was not bitten, and her sister chased the dog away. The dog got out after defendant’s adult daughter drove up to Reese’s house and opened the fence gate, which was at the edge of Reese’s driveway and had to be opened to allow a car to get in.

By affidavit, two of Reese’s former neighbors described a number of instances in which the dog ran loose, sometimes in Reese’s presence, and stated that it chased people and put at least affiants in fear, that it jumped at some children, and that Reese was aware that the dog repeatedly escaped the yard through an opening in the fence. One affiant, on an occasion when the dog “came at” her child, notified Reese to keep the dog confined or she would call the pound.

OCGA § 51-2-7 provides that an owner or keeper of a vicious or dangerous animal “who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable” to that person.

Reese did not establish as a matter of undisputed fact that she had adequately chained the dog so it would not break the chain or the chain would not become undone, or that she took adequate precautions to assure that the dog would not be let out of the yard advertently or inadvertently by people normally opening the gate. She did not establish that her daughter unchained the dog and deliberately or negligently allowed it to get out of the yard. Reese’s opinion that the chain was secure and that the fencing arrangement was secure is not based on any facts of record and does not conclusively establish adherence to the statutorily-required degree of care. What the dog was chained with, how it got loose from the chain, and the nature of the daughter’s act are not shown. Thus she has not conclusively established that her own acts were within the bounds of the law or that the unforeseen acts of a third person were an intervening cause which precluded her liability. Union Carbide Corp. v. Holton, 136 Ga. App. 726, 728 (1) (222 SE2d 105) (1975); Williams v. Grier, 196 Ga. 327, 336-337 (2) (26 SE2d 698) (1943).

Decided September 7, 1988.

Nick Long, Jr., for appellant.

As to the element of the dog’s being “vicious or dangerous,” the statute further provides: “In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a . . . county, . . . and the said animal was at the time of the occurrence not at heel or on a leash.”

Plaintiff cited a county ordinance in effect at the time which in part imposed a duty on owners and possessors of animals “to keep the animal under control at all times while the animal is off of the real property limits of the owner, possessor or custodian . . . [A]n animal is deemed under control when it is confined within a vehicle, ... , is secured by a leash or other device held by a competent person, or is properly confined within an enclosure with the permission of the owner of the property where the enclosure is located.” Code of DeKalb County, Ga., Div. II, Part 4, Chapter 4, former § 4-4006.

We note that the ordinance does not limit the requirement to “at heel” or on leash but allows also other devices or confinement. Since it is broader, it does not appear to be the type of ordinance specifically designated by the legislature to constitute a substitute for proof of vicious propensity. We make no ruling in this regard, however, because the issue is not squarely before us since there was testimonial evidence of actual vicious propensity, as well as knowledge of it by defendant. Cf. Gilbert v. Hudspeth, 182 Ga. App. 898 (357 SE2d 601) (1987); Brown v. Pierce, 176 Ga. App. 787 (338 SE2d 39) (1985).

Judgment reversed.

Birdsong, C. J., and Banke, P. J., concur.

William D. Strickland, for appellee.

       Two other related ordinances were in effect, but were not cited by plaintiff: Section 4-4004, Running at large prohibited, and Section 4-4005, Duty to keep animal under restraint while on property.


text:
    76749.
    SHERWOOD v. THE STATE.
    (372 SE2d 677)
   Pope, Judge.

The defendant, Robert Eugene Sherwood, entered a plea of nolo contendere for the offenses of driving with suspended license, speeding and failure to show proof of insurance. The charge relating to failure to show proof of insurance was placed on the dead docket and, pursuant to the recommendation of the State, the trial court imposed fines for the remaining offenses. According to defendant’s brief, but not otherwise appearing of record, defendant received notice from the Department of Public Safety in February 1987 declaring him to be a habitual violator based on his plea of nolo contendere to the driving with suspended license charge and two prior guilty pleas to driving under the influence charges.

On May 19, 1987, several terms of court following the entry of defendant’s plea and imposition of sentence, defendant filed a Motion to Withdraw Plea and Vacate Sentence and an Extraordinary Motion for New Trial, contending his plea was not voluntarily entered because he was unaware that he could be declared an habitual violator and his license revoked. This appeal follows the trial court’s denial of these motions. Held:

1. “OCGA § 17-7-93 (b) permits a defendant to withdraw a guilty plea [or plea of nolo contendere] as a matter of right before sentence is pronounced. Even after sentencing, the trial court has the discretion to allow the withdrawal of the plea prior to the expiration of the term of court in which the sentence was entered. State v. Kight, 175 Ga. App. 65 (332 SE2d 363) (1985). However, after the expiration of that term and of the time for filing an appeal from the conviction, the only remedy available to the defendant would be through habeas corpus proceedings. Id.” Staley v. State, 184 Ga. App. 402 (361 SE2d 702) (1987). Hence the trial court was without authority to allow defendant to withdraw his plea in the present case. Sanders v. State, 179 Ga. App. 168 (1) (345 SE2d 677) (1986); State v. Kight, 175 Ga. App. 65 (1) (332 SE2d 363) (1985); Thigpen v. State, 165 Ga. App. 837 (303 SE2d 81) (1983).

Moreover, and pretermitting the issue of the timeliness of defendant’s motion, we find no merit to defendant’s argument concerning the voluntariness of his plea. “ ‘Adverse unanticipated collateral consequences are not valid reasons for (permitting the withdrawal of a nolo contendere plea). Meaton v. United States, 328 F2d 379 (5th Cir. 1964). “The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision.” [Cit.]’ . . . Davis v. State, 151 Ga. App. 736 (261 SE2d 468) [1979]. See also Garcia v. State, 152 Ga. App. 889 (264 SE2d 323) [1980].” State v. Kight, supra at 67. Consequently, the trial court did not err in denying defendant’s motion to withdraw his nolo contendere plea.

Decided September 7, 1988.

David H. Jones, for appellant.

James L. Webb, Solicitor, Richard J. Edwards, Assistant Solicitor, for appellee.

2. Defendant also assigns error to the trial court’s denial of his extraordinary motion for new trial and argues that the February 1987 letter from the Department of Public Safety advising him of his habitual violator status constituted newly discovered evidence so as to authorize and require a new trial. See generally Dick v. State, 248 Ga. 898 (287 SE2d 11) (1982). Pretermitting the issue of the procedural propriety of using an extraordinary motion for new trial to challenge a guilty or nolo contendere plea, see Logan v. State, 256 Ga. 664 (352 SE2d 567) (1987); Amos v. State, 161 Ga. App. 281 (2) (287 SE2d 743) (1982), we decline to find that defendant’s eventual ascertainment of the possible consequences of his plea of nolo contendere constituted newly discovered evidence so as to warrant a new trial. “Newly discovered evidence will not authorize a new trial in a criminal case unless it ‘relates to facts which are . . . vitally material to the issue of the defendant’s guilt or innocence.’ (Emphasis supplied.) Taylor v. State, 13 Ga. App. 689 (1) (79 SE 862) (1913).” Simmons v. State, 174 Ga. App. 906, 910 (331 SE2d 923) (1985). Accordingly, this enumeration affords no basis for reversal.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    76756.
    THE STATE v. SOMMERVILLE.
    (372 SE2d 688)
   Carley, Judge.

Appellee was charged by accusation with a violation of OCGA § 32-6-21, relating to the securing of loads on vehicles. Appellee moved to dismiss the accusation. The trial court granted appellee’s motion, stating that it was doing so because there is “no punishment in the code, and where there is no punishment, there’s no crime, so I’ll dismiss [the accusation].” The State appeals from the trial court’s grant of appellee’s motion to dismiss.

Decided September 7, 1988.

John C. Carbo III, Solicitor, Anne Landrum, Assistant Solicitor, for appellant.

H. Burton Crews, Jr., for appellee.

Contrary to the trial court’s holding, the Code does provide a punishment for a violation of OCGA § 32-6-21. “Any person who violates any of the provisions of this title for which no specific penalty is provided, whether or not such act or omission is expressly declared elsewhere in this title to be unlawful, or who violates any of the rules and regulations issued under authority of and in accord with the provisions of this title shall be guilty of a misdemeanor. . . .” OCGA § 32-1-10 (a). A violation of OCGA § 32-6-21 is, therefore, punishable as a misdemeanor pursuant to OCGA § 32-1-10 (a). Accordingly, the trial court erred in dismissing the accusation against appellee.

Judgment reversed.

Deen, P. J., and Sognier, J., concur.


text:
    76802.
    COOPER et al. v. THE STATE.
    (372 SE2d 679)
   Carley, Judge.

In a single indictment, appellants were charged with possession of cocaine with intent to distribute. They were tried as co-defendants, and the jury returned a guilty verdict as to each. Following the denial of their motion for new trial, appellants filed a single notice of appeal from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts.

1. Over appellants’ hearsay objection, the trial court permitted a police officer to testify as to what he had been told by a confidential informant. Relying upon Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982) and Teague v. State, 252 Ga. 534 (314 SE2d 910) (1984), appellants enumerate the trial court’s admission of the police officer’s testimony as error.

The record reveals that when the police officer was asked to relate the information that he had been given by the confidential informant, appellant made a hearsay objection. The State responded that it was proffering the testimony merely to explain the officer’s conduct as provided in OCGA § 24-3-2. The trial court then overruled appellants’ hearsay objection and the questioning of the police officer proceeded without any further objection, exception or request for instruction ever being made by appellants. “The trial court was not asked to rule on [the] ground [urged on appeal] and thus there is nothing to review. Tt is well established that appellate courts may not consider objections to evidence not raised at trial.’ [Cit.]” Mullins v. State, 176 Ga. App. 439, 440 (1) (336 SE2d 343) (1985). See also Cichetti v. State, 181 Ga. App. 272, 274 (3) (351 SE2d 707) (1986).

2. Appellants base two of their enumerations of error upon the jury charge that was given by the trial court.

“Before addressing the merits of appellants’] enumeration [s], we must first determine whether or not appellants] waived any objection to the trial court’s charge. When asked if there were any objections to the charge as given . . . , counsel for appellants] replied, ‘[None] at this time, [if it please the court].’ ‘In order to avoid waiver, if the trial court inquires if there are objections to the charge, counsel must state his objections or follow the procedure set forth in Gaither v. State, 234 Ga. 465 (216 SE2d 324) (1975), ... of reserving the right to object on motion for new trial or on appeal.’ [Cit.] ‘(T)he mere insertion of the caveat “at this time” is a far cry from a reservation of objections to a later time, a standard set forth in Gaither v. State, [supra].’ [Cit.]” Kelly v. State, 174 Ga. App. 424, 425 (4) (330 SE2d 165) (1985). It follows, therefore, that appellants have waived consideration of their enumerations of error predicated upon the jury charge.

3. The trial court’s allowing of an arresting officer to give his opinion that appellant Ms. Bennett was in possession of the drugs found in the automobile is eunmerated as error by her.

A review of the record shows that the trial court did not “allow” the witness to testify as to his opinion on anything. Rather, counsel for appellants asked the witness on cross-examination whether or not he had seen appellant Ms. Bennett put the contraband where he had found it. The only objection to the witness’ answer was that it had not been responsive to the question. The trial court instructed appellants’ counsel to ask his question again, and he then asked a different question. At no point was the trial court ever called upon to make a ruling concerning the admissibility of an opinion by the witness as to who was in possession of the drugs found in the car. At no point was the trial court ever requested to take corrective measures with regard to the testimony which was offered. “ ‘Enumerations of error which raise questions for the first time on appeal present nothing for decision. [Cits.]’ [Cit.]” Lane v. State, 180 Ga. App. 168, 169 (4) (348 SE2d 711) (1986).

4. Appellant Ms. Bennett enumerates the general grounds. After a thorough review of the evidence produced at trial, we find that a rational trier of fact could reasonably have found appellant Ms. Bennett to be guilty beyond a reasonable doubt of possession of cocaine with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Clark v. State, 185 Ga. App. 513 (1) (364 SE2d 641) (1988).

Judgments affirmed.

Deen, P. J., and Sognier, J., concur.

Decided September 7, 1988.

Thomas M. Hackel, for appellants.

Harry D. Dixon, Jr., District Attorney, Richard E. Currie, Assistant District Attorney, for appellee.


text:
    76842.
    In the Interest of W. J. K.
    (372 SE2d 681)
   Beasley, Judge.

The Georgia Department of Human Resources, for the Houston County Department of Family and Children Services (DFACS), appeals the order of the Juvenile Court sealing records pursuant to OCGA § 15-11-61.

Although the record here contains none of the papers related to the original activity involved, it appears from the hearing conducted on the request to seal, submitted on behalf of her son by the mother, thgt the parents of W. J. K. had filed a complaint with the sheriff’s department alleging sexual activity between their son and two other young boys, which could have been grounds for a delinquency petition in juvenile court. No petition was ever filed. Apparently, no resolution was made, i.e., no adjudication was entered and no informal adjustment was engaged in. The sheriff’s department contacted DFACS and W. J. K. did go for mental health counseling, but DFACS stated he had not completed it and contended that he was “not rehabilitated.”

W. J. K., after reaching the age of 17, sought via his mother’s request to have the records sealed. The clerk of the juvenile court sent notification of it to the appropriate entities, including the Houston County DFACS, the local arm of appellant Department.

The Department had no objections to the sealing of any records contained in the juvenile court and law enforcement files, and agreed that any of its records which originated from that court or a law enforcement agency could appropriately be sealed. Thus, no issue arises before us in this regard. The Department contended, however, that any records of its investigation which were not a part of a court proceeding could not be sealed.

During the hearing on the request to seal, the court indicated that the only authority relating to sealing of records outside the court and law enforcement agencies, which the Department was not, was that provided by the Uniform Juvenile Court Rules, 254 Ga. 763, apparently referring to USCR 3.4. The court then ordered sealed all records relating to W. J. K. in the possession of the court, law enforcement agencies, and “all departments,” including appellant. OCGA § 15-11-61 provides: “(a) On application of a person who has been adjudicated delinquent or unruly or on the court’s own motion, . . . , the court shall order the sealing of the files and records in the proceeding, including those specified in Code Sections 15-11-59 [law enforcement records concerning children] and 15-11-60 [juvenile fingerprints and photographs], if the court finds that: (1) Two years have elapsed since the final discharge of the person; (2) Since the final discharge of the person he has not been convicted of a felony or of a misdemeanor involving moral turpitude or adjudicated a delinquent or unruly child and no proceeding is pending against him seeking conviction or adjudication; and (3) He has been rehabilitated. . . . (c) Upon the entry of the order the proceeding shall be treated as if it had never occurred.”

What is subject to sealing under this section is “the proceeding” which results in an adjudication of delinquency or unruly. Such proceedings are initiated either by complaint, as provided by UJCR 4.1-4.4, or by the filing of a petition, as provided by OCGA § 15-11-11 and UJCR 5, which, according to section 15-11-11, commences a proceeding under the Juvenile Code.

A complaint or a petition may be disposed of by informal adjustment, which is a means of counseling the child without an adjudication. OCGA § 15-11-14; UJCR 4.3. If informal adjustment is used after the filing of a petition, the petition is withdrawn. UJCR 4.3. The rules also provide that a person who has had his case informally adjusted may request that the “files and records in the proceeding” be sealed. UJCR 3.4.

The juvenile court is “a court of special and limited jurisdiction. . . .” having only those powers given to it by the legislature. Williams v. Dept. of Human Resources, 150 Ga. App. 610 (1) (258 SE2d 288) (1979); see Worthy v. State, 253 Ga. 661 (1) (324 SE2d 431) (1985); In the Interest of J. J. S., 246 Ga. 617, 618 (1) (272 SE2d 294) (1980); Lane v. Jones, 244 Ga. 17, 19 (1) (257 SE2d 525) (1979); Parham v. Baldwin County &c. Children Svcs., 161 Ga. App. 436, 437 (1) (288 SE2d 354) (1982).

Considering OCGA § 15-11-61 in this environment, and giving the words their ordinary signification, OCGA § 1-3-1 (b), the only items subject to sealing by the juvenile court are the files and records in the proceeding generated by complaint or petition, which include those records and files of law enforcement agencies that were involved in that proceeding and photographs and fingerprints of the juvenile taken in connection with the proceeding. See In re Long, 153 Ga. App. 883, 884 (267 SE2d 481) (1980). The rules also provide that the sealing may include any agency or department to which “any information or records have been disseminated.”

Although the record here is sparse, it is clear that there was no adjudication of delinquency or unruliness, and that there was no informal adjustment as defined in UJCR 4.3. Thus, pretermitting whether sealing after informal adjustment is authorized, given the language of OCGA § 15-11-61, and whether there was a court “proceeding,” the first condition precedent for sealing the records was not met. OCGA § 15-11-61; UJCR 3.4. The Department’s separately generated information is confidential, OCGA § 49-5-40, and subject to access only under specific circumstances. OCGA § 49-5-41. To the degree its records did not become part of a juvenile court proceeding, they are not sealable under OCGA § 15-11-61 or USCR 3.4.

Decided September 7, 1988.

Michael J. Bowers, Attorney General, Marion 0. Gordon, First Assistant Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellant.

Charlotte M. Hobson, for appellee.

William Kennedy, Betty Kennedy, pro se.

Judgment reversed.

Birdsong, C. J., and Banke, P. J., concur.


author: Benham, Judge.

text:
    76859.
    DRIVER v. THE STATE.
    (372 SE2d 841)
   Benham, Judge.

Appellant was convicted of burglary. On appeal, he contends that he was denied a fair trial because the State did not furnish him with a copy of the indictment and a list of witnesses in advance of trial. See 1983 Ga. Const., Art. I, Sec. I, Par. XIV; OCGA § 17-7-110; Rule 30.3 of the Uniform Rules for the Superior Courts.

1. Appellant filed an amendment to his enumerations of error, containing an additional enumeration, on July 13, 1988, Appellant’s appeal was docketed on April 5, 1988, and appellant’s enumerations of error were due 20 days later, on April 25, 1988. Rule 14, Rules of the Court of Appeals. “Enumerations of error may not be amended after the time for filing has expired. [Cit.]” Scott v. State, 177 Ga. App. 474 (3) (339 SE2d 718) (1986). “An amendment to the enumerations of error filed after time allowed for such filing will not be considered. [Cits.]” Malone v. State, 147 Ga. App. 555 (2) (249 SE2d 368) (1978).

2. Appellant contends that he was not given a copy of the indictment and a list of witnesses despite his timely request therefor. Eleven days before trial, appellant’s counsel received a preprinted form letter, accompanied by a copy of the defendant’s statement and his executed waiver of counsel, advising counsel that “a copy of the indictment with a list of witnesses attached is available for you to pick up at the Clerk’s office.”

The 1983 Georgia Constitution provides that every criminal defendant “shall be furnished with a copy of the accusation or indictment and, on demand, with a list of the witnesses on whose testimony such charge is founded . . .” 1983 Ga. Const., Art. I, Sec. I, Par. XIV. In an effort to implement the constitutional provision (see Ga. L. 1983, p. 503, Sec. 1), OCGA § 17-7-110 was amended to require that “every person charged with a criminal offense shall be furnished with a copy of the indictment or accusation and, on demand, with a list of witnesses on whose testimony the charge against him is founded.” Rule 30.3 of the Uniform Rules for the Superior Courts provides that, upon request, the district attorney “shall furnish to defense counsel . . . the addresses and telephone numbers of the state’s witnesses. . . .” 253 Ga. 801, 853 (1985). The question presented is the means the district attorney may use to fulfill his constitutional and statutory duty to “furnish” the defendant with a copy of the indictment and the requested list of witnesses. Appellant maintains that the material must be served upon opposing counsel pursuant to OCGA § 17-1-1 (b), while the State posits that it “furnished” appellant the requested material by making it available to appellant by notifying him of its presence in the clerk’s office.

The other criminal discovery statutes, OCGA §§ 17-7-210 and 17-7-211, require the prosecution to furnish the defendant with a written copy of oral statements made by the defendant while in police custody, as well as copies of scientific reports which will be introduced in evidence. This court has held that failure of the prosecution to deliver a copy of the custodial statement to a defendant violates OCGA § 17-7-210. Ludy v. State, 177 Ga. App. 767 (1) (341 SE2d 224) (1986). OCGA § 17-1-1 requires service of certain documents related to a criminal prosecution and permits service on defense counsel by delivery, which is then statutorily defined. See OCGA § 17-1-1 (b) (2). “Delivery” impresses more of a duty upon the State to ensure that the defendant is in receipt of the material than merely notifying the defendant of the whereabouts of the documents. In order to ensure that a defendant receives the indictment copy to which he is constitutionally and statutorily entitled, as well as the appropriate responses to constitutionally and statutorily authorized discovery requests, we deem it necessary to designate those documents as “similar paper” as that term is used in OCGA § 17-1-1 (a), thereby requiring that they be served upon each party in any of the methods prescribed by OCGA § 17-1-1.

3. It is undisputed that the State did not serve appellant with a copy of the indictment or the list of witnesses in a manner prescribed by OCGA § 17-1-1. However, error must be shown to have been harmful before it will be deemed reversible error. Rutledge v. State, 152 Ga. App. 755 (1a) (264 SE2d 244) (1979). Appellant has neither alleged nor demonstrated that he was surprised or prejudiced by not receiving a copy of the indictment. Similarly, he did not claim to be unfairly surprised by the lack of a list of witnesses and did not allege prejudice from the lack of receipt of the list. Under such circumstances, the State’s failure to provide appellant with a copy of the indictment and a list of the witnesses constitutes harmless error. Griffin v. State, 183 Ga. App. 386 (3) (358 SE2d 917) (1987); Byrd v. State, 182 Ga. App. 284 (1) (355 SE2d 666) (1987).

Decided September 7, 1988.

Christopher C. Edwards, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, Eric D. Hearn, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


author: Sognier, Judge.

text:
    76876.
    GRIZZARD v. THE STATE.
    (372 SE2d 683)
   Sognier, Judge.

Hubert Charles Grizzard was convicted of driving under the influence of alcohol and he appeals.

1. Appellant first enumerates as error the trial court’s denial of his motion for directed verdict of acquittal on the general grounds. The record reveals that on the night of November 23, 1986, Officer Wayne Boyer of the Warner Robins Police Department observed a grey Mustang parked in a Hardee’s parking lot with the passenger door open and “a pair of legs laying out underneath.” Upon investigation, he determined that Frank Foskey, who smelled of alcohol, was “passed out” in the passenger seat. Officer Boyer concluded Foskey was intoxicated, and instructed Foskey and appellant, who had come outside the restaurant, that Foskey should not drive. Later that night, Officer Boyer saw the same grey car, with two occupants, being driven on North Houston Road. He stopped the car and discovered that appellant was driving and Foskey was in the passenger seat. Observing that appellant was unsteady on his feet and smelled of alcohol, Officer Boyer arrested appellant for driving under the influence of alcohol and informed him of his rights under the implied consent law. An intoximeter test subsequently performed on appellant yielded a reading of .13 grams percent by weight of alcohol in the blood. We find this evidence sufficient to authorize the jury to convict appellant of a violation of OCGA § 40-6-391 (a) (4) under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Daugherty v. State, 182 Ga. App. 730, 731 (1) (356 SE2d 902) (1987).

Decided September 7, 1988.

Theron M. Moore, for appellant.

Carl A. Veline, Jr., Solicitor, Robert E. Turner, Assistant Solicitor, for appellee.

2. Appellant also contends that the trial court erred by denying his motion to suppress evidence of intoxication, arguing that Officer Boyer did not have probable cause to stop appellant because he was not driving erratically, nor had he committed any traffic violation to justify the stop. We do not agree. A police officer has a limited right to make an investigative stop of a person or vehicle under circumstances short of probable cause for arrest “provided there exists a reasonable and articulable suspicion that the person is involved in criminal activity. See Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).” State v. Golden, 171 Ga. App. 27, 30 (3) (318 SE2d 693) (1984). Given that Officer Boyer earlier had told the obviously intoxicated person he saw in the car not to drive, and that he then saw the same car on the road but was unable to determine who was driving without stopping the car, he clearly “had a legitimate purpose in stopping the automobile without a traffic violation having occurred in order to ascertain the condition of the driver. . . . Under the evidence the initial stop was reasonable.” State v. Thomason, 153 Ga. App. 345, 347 (1) (265 SE2d 312) (1980). Thus, the trial court properly denied the motion to suppress. See McElroy v. State, 173 Ga. App. 685 (1) (327 SE2d 805) (1985).

Judgment affirmed.

Deen, P. J., and Carley, J., concur.


text:
    76918.
    FOOTE v. THE STATE.
    (372 SE2d 843)
   McMurray, Presiding Judge.

Via indictment defendant was charged as a recidivist with two counts of the offense of aggravated assault and one count of the offense of possession of a firearm by a convicted felon. Upon a jury trial, defendant was convicted on one count of aggravated assault and possession of a firearm by a convicted felon. Defendant was acquitted of the second aggravated assault charge.

In Foote v. State, 184 Ga. App. 900 (363 SE2d 180), defendant’s conviction was affirmed and the case remanded for a hearing and appropriate findings concerning the issue of ineffective assistance of trial counsel. Upon remand the trial court denied defendant’s claim of ineffective assistance of trial counsel and declined to grant defendant a new trial on this ground. The present appeal is taken from the trial court’s order on remand, finding that defendant did not lack effective counsel at trial. Held:

“ ‘The bench mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ Strickland v. Washington, [446] U. S. [668, 687] (104 SC 2052, 80 LE2d 674) (1985). In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) ‘that counsel’s performance was deficient,’ i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this ‘deficient performance prejudiced the defense,’ i.e., that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ Id at__‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ Ibid.

“The complaining defendant must make both showings. His failure ‘to establish either the performance or the prejudice component results in denial of his Sixth Amendment claim.’ King v. Strickland, 748 F2d 1462, 1463 (11th Cir. 1984). A reviewing court need not ‘address both components if the defendant makes 6m insufficient showing on one,’ Strickland v. Washington, supra at_, nor must the components be addressed in any particular order. Ibid.” Ford v. State, 255 Ga. 81, 85 (8) (335 SE2d 567).

In the case sub judice, the defendant contends that he was prejudiced by the failure of trial counsel to move for a bifurcated trial under the authority of Head v. State, 253 Ga. 429 (322 SE2d 228). Under that procedure the jury would determine its verdict on the aggravated assault charges prior to learning of defendant’s prior convictions which were admissible and relevant in connection with the possession charge.

The trial court, applying the principles set forth in Ford v. State, 255 Ga. 81, 85, supra, determined that defendant was not prejudiced by the failure of trial counsel to request the procedure created in Head v. State, 253 Ga. 429, 431 (3), supra. In reaching its conclusion the trial court recognized that the case sub judice is distinguishable on its facts from Head v. State, 253 Ga. 429, supra, since in the present case the jury was instructed as to the limited purpose of the permissible use of the evidence of defendant’s prior felony convictions. The trial court’s direction that the prior conviction evidence be considered only in relation to the possession offense was repeated in the trial court’s charge to the jury after the close of evidence. In Head there were no instructions limiting use of the prior conviction evidence. Also, while in Head the conviction was predicated upon the uncorroborated evidence of one witness, in the case sub judice the evidence of defendant’s guilt of the aggravated assault count, of which defendant was convicted, is overwhelming, the evidence from several witnesses showing that defendant shot the victim in the back.

Decided September 7, 1988.

Donald T. Wells, Jr., for appellant.

Harry N. Gordon, District Attorney, Kenneth W. Mauldin, Assistant District Attorney, for appellee.

In such cases as Bogan v. State, 177 Ga. App. 614 (340 SE2d 256), and Stone v. State, 253 Ga. 433 (321 SE2d 723), we have affirmed the refusal of trial courts under substantially similar circumstances to sever for trial the offense of possession of a firearm by a convicted felon. In view of such cases, we find no error in the trial court’s denial of defendant’s claim of ineffective assistance of trial counsel since defendant has not shown a reasonable probability that trial counsel’s failure to move for a bifurcated trial affected the verdict. Ricks v. State, 184 Ga. App. 428, 429 (2) (361 SE2d 829).

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    76990.
    BARRON v. DEPARTMENT OF TRANSPORTATION.
    (372 SE2d 684)
   Carley, Judge.

Appellee-condemnor filed a petition and declaration of taking as to certain land belonging to appellant-condemnee. Appellant was dissatisfied with the amount of estimated just and adequate compensation deposited into the registry of the superior court and, pursuant to OCGA § 32-3-14, she filed a timely appeal. The case was submitted to the jury on a special verdict form. The special verdict that was returned by the jury included an award to appellant of consequential damages. As to this award of consequential damages, the superior court subsequently granted appellee’s motion for judgment notwithstanding the verdict and appellant appeals from the trial court’s order granting appellee’s motion.

In her sole enumeration, appellant urges error in the superior court’s granting of appellee’s motion for judgment n.o.v. The specific contention is that the superior court was not authorized to grant that post-verdict motion because appellee had made no motion for a directed verdict at the appropriate time during the trial. See OCGA § 9-11-50 (b); Whitman v. Burden, 155 Ga. App. 67 (1) (270 SE2d 235) (1980).

Decided September 7, 1988.

Ernest H. Woods III, for appellant.

John A. Dickerson, Michael J. Bowers, Attorney General, Marion O. Gordon, First Assistant Attorney General, Roland F. Mat-son, Senior Assistant Attorney General, for appellee.

“In the trial of [a de novo condemnation] appeal in the superior court, the proceeding is governed by the rules applicable to ordinary suits. [Cit.]” Georgia Power Co. v. Lightfoot, 97 Ga. App. 330 (1) (103 SE2d 99) (1958). See also State Hwy. Dept. v. Hester, 112 Ga. App. 51, 53 (143 SE2d 658) (1965). Accordingly, if the evidentiary and procedural requirements have otherwise been satisfied, the superior court’s disposition of such an appeal by the grant of a motion for judgment n.o.v. would be authorized by the provisions of OCGA § 9-11-50. See Canada West, Ltd. v. City of Atlanta, 169 Ga. App. 907, 914 (10) (315 SE2d 442) (1984). See generally Fulton County v. Bailey, 107 Ga. App. 512, 514 (3) (130 SE2d 800) (1963). The issue raised in the present appeal is whether appellee satisfied the procedural requirement by moving for a directed verdict during the trial.

In its order granting judgment n.o.v., the superior court explicitly found that a motion for directed verdict had been made by appellee at the close of all the evidence. The record shows that, at the close of the evidence, appellee did make a motion but it did not specifically denominate that motion as one which sought the direction of a verdict. It is evident from the transcript, however, that the superior court considered appellee’s undenominated motion to be a motion for directed verdict on the issue of consequential damages and that it ruled upon the motion as such. Thus, the transcript supports the superior court’s finding that appellee had made a motion for directed verdict at trial, notwithstanding appellant’s contention to the contrary. Accordingly, the procedural prerequisite to the superior court’s authority to grant appellee’s motion for judgment n.o.v. was satisfied. Whether the evidentiary requirement was likewise met cannot be addressed, as appellant has not raised that issue in this appeal.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    76994.
    WILLIAMSON v. THE STATE.
    (372 SE2d 685)
   Benham, Judge.

Appellant was convicted of theft by shoplifting and sentenced as a misdemeanant. OCGA §§ 16-8-14 (a) (4) and 16-8-14 (b) (1).

1. After observing appellant remove the price ticket from a comforter and place on the comforter a ticket previously removed from sheets, a plainclothes store security guard followed appellant as she exited the store with the comforter. The security guard then stopped appellant, identified himself as store security personnel, and asked her to accompany him to an office within the store to discuss her purchase. After the security guard explained to appellant what he had seen her do, she became verbally abusive and hurled racial epithets at him and the store manager. In a pre-trial motion, appellant sought suppression of the statements on the grounds that the State failed to comply with OCGA § 17-7-210 (a) which states that a defendant is entitled, upon written request, to “a copy of any statement given by [her] while in police custody. . . .”

Even if it is assumed, for the sake of argument, that appellant’s detention by the store security personnel constituted “police custody,” the statements made by appellant were neither incriminating nor inculpatory. Statements that are not incriminating or inculpatory do not fall within the ambit of OCGA § 17-7-210, and therefore need not be furnished to a defendant. See OCGA § 17-7-210 (d); Hudgins v. State, 176 Ga. App. 719 (1) (337 SE2d 378) (1985); Furlow v. State, 172 Ga. App. 185 (2) (322 SE2d 317) (1984); Howell v. State, 163 Ga. App. 445 (4) (295 SE2d 329) (1982). The trial court did not err in admitting the testimony concerning appellant’s statements.

2. During his examination of the store manager, the assistant solicitor asked a leading question which resulted in testimony that appellant had threatened to bring legal action against the store. The trial court denied appellant’s motion for mistrial and offered to give the jury a curative instruction. When counsel for appellant expressed his desire for such an instruction, the trial court told the jury to disregard any statement regarding the threat of any other lawsuit, and ascertained from each juror that he/she could do so. “Appellant did not renew [her] motion for a mistrial after the curative instruction was given. Since the rule requiring renewal of a motion for a mistrial following curative instructions has been retained in criminal cases, the issue has not been preserved for appellate review. [Cits.]” Bankston v. State, 159 Ga. App. 342 (3) (283 SE2d 319) (1981).

3. Appellant contends the trial court erred when it declined to give the jury five of appellant’s requested charges. Instead of four of the requests, the trial court gave pattern jury instructions on reasonable doubt and good character as a defense. “ ‘The failure to give requested instructions in the exact language requested, where the charge given substantially covers the same principles, is not grounds for reversal.’ [Cit.]” Putman v. State, 251 Ga. 605 (7) (308 SE2d 145) (1983). We note, in passing, that the trial court’s instruction that acquittal would be authorized if the jurors’ minds were wavering, unset-tied, and unsatisfied after consideration of the trial court’s instruction is an almost verbatim rendition of the charge requested by appellant. Appellant’s requested jury charge on circumstantial evidence, based upon a theory espoused in Davis v. State, 13 Ga. App. 142 (1) (78 SE 866) (1913); and discredited in Nolen v. State, 124 Ga. App. 593 (184 SE2d 674) (1971), is not applicable in a case where, as here, direct evidence is involved. Gabbidon v. State, 184 Ga. App. 475 (3) (361 SE2d 861) (1987).

Decided September 7, 1988.

Bill W. Crecelius, Jr., for appellant.

Ralph T. Bowden, Solicitor, N. Jackson Cotney, Jr., Lee B. Perkins, Assistant Solicitors, for appellee.

4. When given the opportunity to voice objection to the charge as given, appellant’s counsel objected to the failure of the trial court to instruct the jury on the law of impeachment with regard to prior inconsistent statements. “[FJailure to charge in the absence of a written request is not such a substantial error as to be harmful as a matter of law. . . . Furthermore, it should be noted that the court below charged the principles of law relating to credibility of witnesses generally. Under those circumstances the failure to include [a charge] relating to impeachment of witnesses in the charge in the absence of written request is not error . . .” Bentley v. State, 131 Ga. App. 425 (12) (205 SE2d 904) (1974). See also Aldridge v. State, 236 Ga. 773 (3) (225 SE2d 421) (1976).

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    77009.
    MEEKS v. THE STATE.
    (372 SE2d 850)
   Carley, Judge.

Appellant was convicted of homicide by vehicle in the first degree, driving with a suspended license, and serious injury by vehicle. In his original appeal, appellant’s sole enumeration of error asserted the denial of effective assistance of trial counsel. We remanded the case to the trial court in order that a hearing be conducted as to this issue. See Hambrick v. State, 256 Ga. 148, 151 (5) (344 SE2d 639) (1986); Midura v. State, 183 Ga. App. 523, 524 (3) (359 SE2d 416) (1987). On remand, a hearing was conducted wherein the effectiveness of appellant’s trial counsel was contested on the basis of an alleged conflict of interest. Subsequent to the hearing, the trial court entered an order, finding that appellant’s trial counsel had no conflict of interest and that appellant had not been denied effective assistance of tried counsel. Appellant appeals from this order of the trial court.

Decided September 7, 1988.

David M. Bowen, for appellant.

Frank C. Winn, District Attorney, Lois W. Gerstenberger, Assistant District Attorney, for appellee.

“The record amply supports the trial court’s finding that [appellant’s trial counsel had no conflict of interest and that appellant had not been denied effective assistance of trial counsel], and we find no merit to [appellant’s] contentions to the contrary.” Hambrick v. State, 257 Ga. 345 (360 SE2d 719) (1987).

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


text:
    77017.
    HARDAWAY v. THE STATE.
    (372 SE2d 845)
   Carley, Judge.

Appellant was tried before a jury and found guilty of trafficking in cocaine. He appeals from the judgment of conviction and sentence entered on the jury’s verdict.

1. Appellant enumerates the general grounds, urging that the State failed to introduce independent evidence which corroborated the testimony of his alleged accomplice.

A review of the record shows that a witness for the State testified that he saw the accomplice approach a vehicle which was occupied solely by appellant. The accomplice was neither wearing a coat nor carrying anything in his hands as he approached the vehicle. The accomplice entered the vehicle and, when he exited a short time later, he was carrying a brown bag which contained cocaine. “This testimony provided sufficient independent corroboration of appellant’s participation in the sale of [the cocaine]. ‘(T)he standard of review regarding corroboration is as follows: “It is not required that the corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular (and) . . . slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict.” [Cit.]’ [Cit.] The trial court correctly denied [appellant’s] motion for directed verdict and properly refused to grant a new trial.” Bennett v. State, 156 Ga. App. 617, 617-618 (275 SE2d 701) (1980).

2. Appellant enumerates as error the denial of his pretrial motion to suppress. The evidence was discovered during the search of an apartment which was entered pursuant to an arrest warrant. When the police officers arrived at the apartment with the warrant for appellant’s arrest, they observed a moving light in the upstairs portion of the apartment. They also heard noises coming from within the apartment. As the result of these observations, the police officers entered the apartment. In the ensuing search for appellant, the officers found the evidence which appellant sought to have suppressed.

Decided September 7, 1988.

Charles S. Thornton, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, R. Andrew Weathers, Linda S. Finley, Assistant District Attorneys, for appellee.

It is unclear whether the apartment was appellant’s residence or the residence of his girl friend. If the apartment was the residence of appellant, the entry of the police officers and their subsequent search for appellant therein were authorized pursuant to the valid arrest warrant. “[A]n arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton v. New York, 445 U. S. 573, 603 (100 SC 1371, 63 LE2d 639) (1980). If the apartment was the residence of his girl friend, appellant has no standing to object to the entry and search. See Moss v. State, 171 Ga. App. 571 (320 SE2d 553) (1984). Accordingly, the trial court correctly denied appellant’s motion to suppress.

3. Relying upon Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988), appellant enumerates the trial court’s giving of a charge on constructive possession as error.

“Here defense counsel neither objected nor reserved the right to later object, and under such circumstances, [appellant] has waived the right to raise the issue on appeal.” Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980). Moreover, unlike in Lockwood, the trial court in the present case did not charge the jury that it would be authorized to convict appellant based upon either his actual or his constructive possession of the cocaine. Here, the trial court gave general instructions as to constructive and actual possession, but specifically charged the jury that it would be authorized to find appellant guilty only upon a finding that he had actual possession of cocaine.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


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    77071.
    CITIZENS & SOUTHERN NATIONAL BANK v. THOMAS.
    (372 SE2d 687)
    Decided September 7, 1988.

      Bruce A. Reynolds, for appellant.

      Jennifer McLeod, for appellee.
   Carley, Judge.

Appellee-defendant entered into a “motor vehicle lease” agreement. The agreement and the vehicle were subsequently sold, assigned and transferred to appellant-plaintiff. Appellee made only the initial monthly payment required by the agreement and appellant repossessed the vehicle. The vehicle was sold at auction and appellant credited the proceeds to appellee’s account.

Appellant then filed this action, seeking to recover for appellee’s breach of the agreement. The case was tried before a jury and, at the close of appellant’s evidence, appellee moved for a directed verdict. Appellee predicated his motion upon appellant’s failure to comply with the notice provisions of OCGA §§ 10-1-36 and 11-9-504 (3) and upon appellant’s failure to prove that the sale of the vehicle had been conducted in a commercially reasonable manner as required by OCGA § 11-9-504 (3). The trial court granted appellee’s motion for a directed verdict and appellant appeals.

Appellant enumerates the trial court’s direction of a verdict for appellee as erroneous, urging that the asserted grounds of the motion had no merit.

The relevant provisions of the agreement signed by appellee are substantially identical to those which were contained in the “motor vehicle lease” agreement at issue in Mejia v. C & S Bank, 175 Ga. App. 80 (332 SE2d 170) (1985). The agreement in Mejia, supra at 82, was held to be a “true lease” and, therefore, the provisions of the Uniform Commercial Code would be inapplicable. Since the “motor vehicle lease” agreement in the present case likewise evidences a “true lease,” rather than a disguised secured transaction, the trial court erred in directing a verdict for appellee based upon appellant’s failure to comply with the inapplicable provisions of the Uniform Commercial Code.

Judgment reversed.

Deen, P. J., and Sognier, J., concur.


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    77093.
    BUSH v. THE STATE.
    (372 SE2d 847)
    Decided September 7, 1988.

      Allison V. Cobham, for appellant.
   Benham, Judge.

Appellant was convicted of armed robbery. On appeal he contends the trial court erroneously denied his motions for mistrial which were made in response to the State’s alleged violation of pre-trial rulings made by the trial court. We affirm.

1. Before trial, the trial court granted appellant’s motion in limine with regard to testimony mentioning drug use by appellant. The arresting officer, when asked at trial, “What, if anything else, did you ask the defendant [following his arrest]?” testified, “I may have asked him if he was on drugs or anything like that.” A defense objection was sustained, and the trial court instructed the jury to give no consideration to any possible drug involvement because there was absolutely no evidence that appellant was involved with drugs. Appellant moved for a mistrial, which was denied.

“ ‘The trial court has a broad discretion in passing on motions for mistrial, and its ruling will not be disturbed by the appellate courts unless it appears that there has been a manifest abuse of discretion and that a mistrial is essential to the preservation of the right to a fair trial. [Cits.] Where a motion for mistrial is made on the ground of inadmissible matters being placed before the jury, the corrective measure to be taken by the trial court also is largely a matter of discretion, and where proper corrective measures are taken and there is no abuse of that discretion, the refusal to grant a mistrial is not error.’ [Cit.]” Clark v. State, 159 Ga. App. 136 (1) (282 SE2d 752) (1981). Since the trial court’s corrective action was sufficient, it was not error to deny the motion for mistrial.

2. Prior to trial, the trial court ruled that the investigating officer would not be permitted to testify about hearsay reports he had received. At trial, the officer stated that he “received information . . . about an ex-employee that had information on who had done a robbery at the restaurant a few days earlier.” The trial court immediately had the jury retire, repeated its pre-trial ruling prohibiting the introduction of the hearsay, and warned the witness against repeating hearsay. Appellant then made a motion for mistrial, which was denied. In light of the trial court’s immediate and decisive action, we cannot say that the denial of the motion for mistrial amounted to an abuse of discretion and that appellant was denied his right to a fair trial. See Clark, supra.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.


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    77096.
    GAINER v. THE STATE.
    (372 SE2d 848)
   McMurray, Presiding Judge.

Defendant was found guilty by a jury of simple battery. Following her conviction, defendant obtained other counsel and filed a motion for new trial, arguing in pertinent part that her trial counsel provided ineffective assistance. At a hearing on her motion for new trial, defendant testified that she first talked with her trial attorney the day before trial and that she informed him that the incident which formed the basis of her prosecution was initiated by the victim, explaining that the victim wanted “to get even with . . .” defendant for “reporting [the victim and members of the victim’s family] for selling cocaine, and reefer and whatever else they sell.” Defendant further testified that she informed her trial attorney that the victim had been arrested on drug charges and that she did not mention the victim’s arrest at trial because her attorney advised her “not to bring [it] up ...” Defendant also presented evidence showing that the victim was convicted in 1983 for selling marijuana and was indicted on April 21, 1987, for violating Georgia’s Controlled Substances Act. (This evidence was not offered at trial to corroborate defendant’s defense nor was it used to impeach the victim.) The State presented no evidence at the hearing and the trial court denied the motion for new trial. Defendant now appeals, asserting in her sole enumeration of error that she received ineffective assistance of counsel at trial. Held:

Defendant contends her trial attorney was ineffective in failing to pursue information she provided regarding the victim’s prior criminal record and advising her not to mention during trial the basis of the victim’s animosity toward her.

“We follow the Supreme Court’s two-prong test set forth in Strickland v. Washington, [466] U. S. [668] (104 SC 2052, 80 LE2d 674) (1984), in determining whether there has been actual ineffective assistance of counsel, thereby requiring the reversal of defendant’s conviction. The defendant must show both that counsel’s performance was deficient and that this deficiency prejudiced the defense. Strickland v. Washington, supra, [466] U. S. at [687] (104 SC at 2064); Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985).

“In Strickland the Supreme Court approved Georgia’s ‘reasonably effective assistance’ standard enunciated in Pitts v. Glass, 231 Ga. 638 (203 SE2d 515) (1974). Strickland v. Washington, supra [466 U. S. at [687, 690] (104 SC at 2064); Smith v. Frances, supra, 253 Ga. at 783. Thus, counsel’s performance will not be found to be deficient if it falls within the range of ‘reasonably effective assistance.’ To perform within this range, counsel must make all significant decisions in the exercise of reasonable professional judgment. The reasonableness of counsel’s performance is then considered in light of the totality of the circumstances, viewed from counsel’s perspective at the time of trial, thereby eliminating the possible distortions of hindsight analysis. Smith v. Francis, supra, 253 Ga. at 783. The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.

“Regarding the second prong of the test, the defendant must show that the deficient performance actually prejudiced the defense. In other words he must show there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s unprofessional errors. Strickland v. Washington, supra, [446] U. S. at [687] (104 SC at 2068); Smith v. Francis, supra, 253 Ga. at 783.” Brogdon v. State, 255 Ga. 64, 67 (3), 68 (335 SE2d 383).

In the case sub judice, we find nothing in the trial record to suggest that defendant’s attorney failed to meet the “reasonably effective assistance” standard in representing defendant at trial. On the contrary, an examination of the trial transcript demonstrates that defendant’s trial attorney was well acquainted with the circumstances surrounding defendant’s case and that he pursued a trial strategy which supported defendant’s claim that the victim initiated the fight which formed the basis of defendant’s prosecution. More specifically, defendant’s attorney cross-examined the State’s witnesses, stressing the weaknesses of the victim’s testimony and suggesting a version of the incident which supported defendant’s claim of self-defense and provocation. Additionally, defendant’s attorney attempted to suggest during his opening statement, over the State’s objection, that the victim’s complaint against defendant was based on personal animosity rather than from facts stemming from an unavoidable confrontation instigated by defendant. Finally, defendant testified as to her version of the fight and explained that the victim initiated the confrontation “on the account of [the victim’s belief] that [defendant and defendant’s husband] had said some things about [the victim] and her family. . . .”

The fact that defendant’s attorney decided to avoid associating his client with a drug-related conflict may well be considered “sound trial strategy” and, in light of the overwhelming evidence supporting the victim’s version of the incident, we cannot say that the victim’s 1983 conviction for selling marijuana would have relevantly impeached the victim and affected the outcome of the trial. In this regard, the victim’s version of the incident was corroborated by two eyewitnesses, one who testified that he was not personally acquainted with either defendant or the victim. This evidence was more than sufficient to satisfy the standard of proof required in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), and was persuasive in sustaining the reliability of the jury’s verdict according to the “second prong” of the test set forth in Strickland v. Washington, 466 U. S. 668, supra. Accordingly, we hold that the trial court did not err in finding that defendant received “reasonably effective assistance” of counsel at trial and in denying the defendant’s motion for new trial.

Decided September 7, 1988.

Howard T. Scott, for appellant.

Ken Stula, Solicitor, for appellee.

Judgment affirmed.

Pope and Benham, JJ., concur.


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    77098.
    ADAMS v. THE STATE.
    (372 SE2d 850)
   Carley, Judge.

Appellant was tried before a jury and found guilty of the offenses of aggravated child molestation, child molestation and attempted rape. Appellant appeals from the judgments of conviction and sentences entered on the jury’s verdict.

1. Appellant enumerates the general grounds as to his conviction for attempted rape, urging that there was insufficient corroboration of the victim’s testimony.

Appellant was indicted for an attempt to commit forcible rape, not for an attempt to commit statutory rape. Compare Vickery v. State, 48 Ga. App. 851 (174 SE 155) (1934). There is not and has never been any requirement that the testimony of the victim of an attempted forcible rape be corroborated. “ ‘ “In a case where a defendant is convicted of an assault with intent to rape, it is not essential that the testimony of the female in question be corroborated. [Cit.]” ’ [Cit.]” Long v. State, 84 Ga. App. 638 (lb) (66 SE2d 837) (1951). Moreover, although corroborating evidence was not required, the testimony of the victim in this case was corroborated by evidence of her outcry at the first opportunity and by the testimony of an eyewitness to the events. See generally Copeland v. State, 160 Ga. App. 786 (1) (287 SE2d 120) (1981); Burnett v. State, 236 Ga. 597 (1) (225 SE2d 28) (1976).

2. Appellant enumerates as error the failure to charge on the requirement for corroborating evidence as to his attempted rape of the victim. As discussed in Division 1, however, corroboration of the victim’s testimony is not necessary to authorize a conviction for attempted forcible rape.

Decided September 7, 1988.

Lee W. Fitzpatrick, for appellant.

David E. Perry, District Attorney, for appellee.

3. The trial court did not err in failing to grant a mistrial on its own motion. See Perault v. State, 162 Ga. App. 294 (2) (291 SE2d 122) (1982); Robinson v. State, 150 Ga. App. 642, 643 (2) (258 SE2d 294) (1979).

Judgment affirmed.

Been, P. J., and Sognier, J., concur.


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    76400.
    COHUTTA BANKING COMPANY v. HOME FEDERAL SAVINGS & LOAN ASSOCIATION OF ROME.
    (372 SE2d 689)
   Pope, Judge.

Appellant Cohutta Banking Company brought suit against appellee Home Federal Savings & Loan Association, seeking to recover damages under the Uniform Commercial Code (OCGA § 11-4-103 (5)) for Home Federal’s failure to give “wire advice” notice of non-payment of a check in the amount of $53,500 as required by the rules of the Federal Reserve Bank. The trial court directed a verdict in favor of Home Federal and Cohutta appeals. Held:

The facts presented in the case were either stipulated or undisputed. The check in question was drawn on the account of S & S Wholesale at Home Federal and deposited to the account of Earl’s Used Cars at Cohutta on September 12, 1983. The check was then sent through the National Bank of Georgia (NBG), Cohutta’s correspondent bank, to the Federal Reserve Bank in Atlanta, and from there to the Federal Home Loan Bank, where it was received on September 14. S & S Wholesale had issued a stop payment order and when Home Federal received the check on September 14 it promptly returned the check to the Federal Reserve Bank in Atlanta. Home Federal did not give wired notice that the check was being returned as required by Regulation J and Operating Circular 13 of the Federal Reserve Bank, and for unknown reasons the check did not reach Cohutta until September 23. That same day NBG also notified Cohutta by telephone of the returned check.

It was undisputed that Cohutta had the right to “charge back” dishonored checks to funds available from the account of Earl’s Used Cars, as specifically set forth in the account agreement. See OCGA § 11-4-212; National Bank of Ga. v. Weiner, 180 Ga. App. 61, 65 (348 SE2d 492) (1986). On September 14, the branch of Cohutta which handled the Earl’s Used Cars account was closed for business. The beginning balance on September 15 was $41.71; no checks were posted as deposits in the account prior to the close of banking hours at 2:00 p.m., but between 2:00 p.m. on September 15 and 2:00 p.m. on September 16 a total of $168,604.72 was deposited to the account; the closing balance on September 16 was $43,926.99. The ending balance in the Earl’s Used Cars account on September 23 was $10,245.34. The stipulated issue was whether Cohutta had been harmed and, if so, the amount of damages it had incurred, due to its failure to receive notice of the dishonored check until September 23.

Federal Reserve Bank Operating Circular No. 13, which was in effect at the times pertinent here, provided, inter alia: “All Reserve Banks and collecting and paying banks shall handle cash items in accordance with the following uniform instructions regarding protest and wire advice [which includes all forms of electronic telecommunications] of nonpayment . . . WIRE ADVICE of nonpayment of an item of $2,500 or over, [except in certain circumstances not present here]. Include in the advice of nonpayment (1) the amount of the items, (2) the reason for nonpayment, (3) the date of the cash letter, (4) the name of the drawer or maker, and (5) the names of the institutional identifiers of all endorsers preceding the Reserve Bank.” (Indention omitted.) Compliance with Federal Reserve regulations and operating letters “constitutes the exercise of ordinary care,” OCGA § 11-4-103 (3); and “[t]he measure of damages for failure to exercise ordinary care in handling an item is the amount of the item reduced by an amount which could not have been realized by the use of ordinary care, . . OCGA § 11-4-103 (5).

Although this case presents a question of first impression in this state, it has been held in other jurisdictions with the same Uniform Commercial Code provisions “that failure to comply with the ‘wire advice’ requirement constitute [s] failure to exercise ordinary care invoking the measure of damages set out in [OCGA] § [11] 4-103 (5).” Yeiser v. Bank of Adamsville, 614 SW2d 338, 343 (Tenn. 1981); Whalen & Sons Grain Co. v. Mo. Delta Bank, 496 FSupp. 211 (E.D. Mo. 1980); Colorado Nat. Bank v. First Nat. Bank &c. Co., 459 FSupp. 1366 (W.D. Mich. 1978). There can be no recovery, however, unless there is a clear causal relation between the bank’s actions and the claimant’s loss. “Thus, to recover from a bank for the mishandling of a check, the claimant must show two things: first, that the bank mishandled the check, and, second, that the claimant would have had a reasonable chance of collecting the amount owed if not for the bank’s mishandling.” Alioto v. United States, 593 FSupp. 1402, 1417 (N.D. Calif. 1984).

It is undisputed here that no “wire advice” notice was given Cohutta by Home Federal that the check was being returned. In seeking redress for Home Federal’s “mishandling,” Cohutta contended that if it had received notice that the item was being returned on September 15, its first business day after the check was dishonored, or on September 16, it could have collected $43,926.99 of the amount in question after paying all the other checks drawn on the Earl’s Used Cars account on those dates. However, at all times subsequent to September 16, the account balance in the Earl’s Used Cars account after payment of unposted checks was significantly less. Cohutta’s vice-president also testified that when he did learn of the return of the $53,500 check from Home Federal on September 23, he decided that he “would not just arbitrarily freeze that account without knowing exactly what had taken place with this item that was being returned to us. I knew there was something irregular about being notified. I should have been notified several days prior to the 23rd that this item was coming back. And I was not. So, I did not know whether it was something my bank had done in error, or whether there was a problem between my customer and his customer, or whether there was a problem between the customer and the bank that was returning it. ... I felt that if I seized this account, and if I did damage my customer, I could very well open our bank to exposure. I knew there was something that had not been done properly here, and I needed all the facts. And so, for that reason, I made a conscious decision not to seize that $10,245 on that day.”

Thus, even though Cohutta had the opportunity to charge back and recover the entire $53,500 item on September 23 before the unposted checks were paid from the account, substantial questions were raised as to the propriety of taking an action which could seriously prejudice Cohutta’s customer without further investigation of the unusual delay. On the other hand, had notice of the returned check been timely made, it is possible no questions would have arisen, and Cohutta would not have hesitated to seize the money that was then in the Earl’s Used Cars account. We therefore conclude that here, as in Alioto v. United States, supra, a question of fact was presented as to whether Cohutta “had a reasonable chance of collecting the amount owed if not for [Home Federal’s] mishandling.” Id. at 1417. There was sufficient evidence for a jury to find that when notice was not received until September 23, Cohutta felt constrained from following its normal procedures because of the unexplained delay.

The trial court apparently directed a verdict in Home Federal’s favor on the theory that since there was sufficient money in the Earl’s Used Cars account on September 23 to charge back the returned check if the outstanding unposted checks were not paid, the case should be decided as a matter of law based solely on the balance available in the account. Although this was certainly a relevant factor for the jury to consider, the reasons surrounding the decision to pay the unposted items before seizing the funds in the account, to wit, the delayed notice of the return of the check, also presented a pertinent factor to be considered. “The requirements which must be met in a directed verdict situation are very strict and where, as here, there is some, though slight, evidence to support an issue raised in the complaint, it cannot be said, as required by OCGA § 9-11-50 (a), that ‘the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.’ Therefore, it was error to direct a verdict for appellee. . . .” Hall v. Rome Auto. Co., 181 Ga. App. 621, 624 (3) (353 SE2d 542) (1987).

Decided September 8, 1988.

Dennis D. Watson, for appellant.

Walter J. Matthews, James D. Maddox, for appellee.

Judgment reversed.

McMurray, P. J., and Benham, J., concur.


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    76424.
    TILLERY v. THE STATE.
    (372 SE2d 851)
   Pope, Judge.

Defendant Ronnie Tillery was tried and convicted of violating the Georgia Controlled Substances Act by selling marijuana, and appeals.

The State presented evidence that on the night of August 8, 1986 Michael George, an undercover agent for the GBI, drove with a confidential informant to defendant’s residence in Walton County, where he purchased a $30 bag of marijuana from defendant after being introduced by the informant. George and the informant returned to George’s car, where George removed the plastic bag of marijuana from his pocket and placed it in a console in the car. After dropping off the informant, George returned to his living quarters and put the bag of contraband in a larger plastic bag, which he labeled with defendant’s name, the date and the time he purchased it. George was working out of the Atlanta office and was not scheduled to return there until August 26, so he locked the contraband in his briefcase to which he had the only key. On August 26 George turned over the plastic bag containing the substance purchased from defendant to a forensic chemist at the State Crime Lab, who tested it and identified the contents as marijuana. Defendant and his wife testified that they were at home with friends on the night in question, but no one else came to their house that night. Held:

1. Defendant objected to admission in evidence of the marijuana on the ground that the State had failed to establish a chain of custody with reasonable certainty. He contends that the 18-day gap between the alleged purchase of the contraband and its delivery to the crime lab, coupled with the access of the informant to it while it was in the unlocked compartment of George’s car, distinguish the situation here from those where there was only a “bare speculation” of tampering with the evidence. We do not agree. George’s testimony established that the informant had access to the marijuana only in his presence and never tampered with or touched it, and that it was otherwise in a locked briefcase in his sole possession until he personally delivered it for testing. The State met its burden of showing with reasonable certainty that the evidence was the same as that sold by defendant and that there had been no tampering or substitution. Therefore, it was properly admitted. Tyson v. State, 184 Ga. App. 309 (2) (361 SE2d 386) (1987), accord Johnson v. State, 184 Ga. App. 745 (1a) (362 SE2d 450) (1987).

Decided September 8, 1988.

David F. Dickinson, for appellant

John M. Ott, District Attorney, for appellee.

2. Nor do we agree that the trial court improperly denied defendant’s pretrial motion to suppress the State’s in-court identification of him. Defendant’s motion does not appear in the record and there is no transcript of the hearing thereon, but he asserts that the use of a one-photograph display in which George identified him as the perpetrator tainted his in-court identification. George testified that he did not participate in defendant’s arrest, which was made at a later time when a “drug sweep” was conducted, but that he did look at a photograph the day after defendant’s arrest to insure that the proper person had in fact been arrested. The record also shows George had previously furnished a detailed description of defendant after having seen him on several occasions, and defendant was positively identified in court by both George and by the confidential informant who had known defendant for five years. “Even if a pretrial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin. [Cit.]” Selbo v. State, 186 Ga. App. 779, 781 (368 SE2d 548) (1988). We find no error in the denial of defendant’s motion to suppress.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    76523.
    LIPSCOMB v. THE STATE.
    Decided September 8, 1988.

      Herbert A. Rivers, for appellant.

      Patrick H. Head, Solicitor, Melodie H. Clayton, Amy A. Hembree, Assistant Solicitors, for appellee.
   Pope, Judge.

A police officer stopped defendant for failure to dim his headlights. When the officer asked him to produce his driver’s license and proof of insurance, the police officer “observed the odor of an alcoholic beverage on his breath.” The officer asked defendant if he had had anything to drink that day and defendant “said he had a few.” Defendant was asked to perform routine field sobriety tests, was given an Alcosensor reading which showed positive results, and was then placed under arrest. Defendant contends that his convictions for failure to dim head lights and for DUI must be reversed because the convictions were based upon evidence gained as a result of an involuntary in-custody statement made without the giving of a Miranda warning. Held:

No Jackson-Denno hearing was requested here, nor was one formally held. However, it is clear from the testimony and from colloquy outside the presence of the jury that at the time the statements were made, defendant was detained only in a traffic stop. “Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest.” Berkemer v. McCarty, 468 U. S. 420, 442 (104 SC 3138, 82 LE2d 317) (1984). Accord Mitchell v. State, 174 Ga. App. 594 (2) (330 SE2d 798) (1985); Humphrey v. State, 174 Ga. App. 165 (2) (329 SE2d 306) (1985); Chester v. State, 157 Ga. App. 191 (276 SE2d 684) (1981). Since defendant was not taken into custody for Miranda purposes until the officer arrested him shortly after he made the statements complained of here, his statements prior to the arrest were admissible against him.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.