text:
    A93A1189.
    In the Interest of R. J. C., a child.
    (435 SE2d 759)
   Beasley, Presiding Judge.

The State appeals the trial court’s grant of a juvenile’s motion to suppress statements made by him to police. OCGA § 5-7-1 (4).

Cherokee County Sheriff’s Department Detectives Johanson and Kattaron, and Lieutenant Keenum, appeared at the 14-year-old’s house at approximately 1:3Q to 2:00 a.m. on a Sunday morning, seeking to question him in their investigation of a burglary and arson after a midnight residential fire elsewhere. The two detectives went to the door, and their knock was answered by the child’s stepfather, who had been drinking. The detectives said they wanted to talk to the boy. Although the stepfather initially balked at getting him out of bed at that hour, he subsequently agreed to awaken him and accompany him to the precinct with the officers so they could talk to him. The stepfather testified that he agreed to do this after the officers threatened to obtain a warrant and keep the child in jail for the remainder of the weekend unless they were permitted to talk to him. He testified that one of the detectives actually went to their car to go for a warrant, so he relented. The officers denied this.

At the precinct, the boy and his stepfather read a Miranda waiver form which was explained to them, stated that they understood it, and signed it. The stepfather testified that before they signed the Miranda waiver form and before Detective Johanson began questioning his stepson, the detective said, “ ‘we don’t think that you set this fire, but we think that you were with the person that did. And what we do in a case like this, is we take the person that we think is less guilty and let them turn State’s evidence and testify against the other one and then set him free, let him go.’ ”

The officers denied that such a statement was made. They testified that although it is standard procedure to tape-record a suspect’s statement, this statement was not recorded because of the lack of funds for tapes.

A petition was filed in juvenile court alleging that R. J. C. is a delinquent child by reason of having committed arson in the first degree. His motion to suppress his statements was grounded on the bases that any statements were in the absence of counsel without any knowing and intelligent waiver, were not made within the guidelines of the standards set forth in Miranda, and were not voluntary under the totality of the circumstances. Following a hearing, the court granted the motion, stating that “it is the Court’s finding that due to the lack of and unavailability of any recording of the alleged statement, the age of the defendant (sic), and circumstances under which the alleged statements were made to the officers it is the Order of this Court that said statement and all evidence adduced from said statement is suppressed. . . .”

Analysis begins with the following rules. “The test for admissibility of custodial confessions was established in Miranda v. Arizona, [384 U. S. 436, 479 (86 SC 1602, 16 LE2d 694) (1966)]. The standard for determining the admissibility of confessions is the preponderance of the evidence. Lego v. Twomey, 404 U. S. 477 (92 SC 619, 30 LE2d 618) (1972); High v. State, 233 Ga. 153 (210 SE2d 673) (1974); Hurt v. State, 239 Ga. 665, 669 (238 SE2d 542) (1977). To determine whether the state has proven that a confession was made voluntarily, the trial court must consider the totality of the circumstances. Clewis v. Texas, 386 U. S. 707 (87 SC 1338, 18 LE2d 423) (1967); [cit.].” (Emphasis supplied.) Gates v. State, 244 Ga. 587, 590 (1) (261 SE2d 349) (1979). To these are added the rule that for juvenile cases, the trial court is to consider the factors identified as relevant to the “totality of the circumstances” test in Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976) ,

As to the facts, when examining the admissibility of a statement in an appellate review, “[u]nless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal. [Cits.]” Gates, supra at 590-591. This case involves disputed facts, not undisputed ones, and it is evident that the court was not persuaded that the evidence proved that the statement was voluntary, although the court did not expressly make this finding.

First, contrary to the State’s arguments, the evidence authorized the court to find that the detectives’ interrogation of the child was custodial, in that a reasonable person in his situation would have believed that he was physically deprived of his freedom of action in a significant way. Childs v. State, 257 Ga. 243, 247 (3a) (357 SE2d 48) (1987), cert. den. 484 U. S. 970, reh. den. 484 U. S. 1047. Moreover, he was a suspect. See the authorities discussed in Wilson v. State, 208 Ga. App. 812 (432 SE2d 211) (1993) (dissent).

Next, the court order did not hold that, as a matter of law, confessions may not be orally recalled rather than tape-recorded; it merely sought more convincing evidence, in the easily obtainable form of a tape-recording. The law, of course, does allow oral testimony concerning statements. See, e.g., Hilliard v. State, 128 Ga. App. 157, 158 (3) (195 SE2d 772) (1973). A properly identified and authenticated tape-recording may also be used as evidence of the statement. Harris v. State, 237 Ga. 718, 724 (5) (230 SE2d 1) (1976), cert. den. 431 U. S. 933, reh. den. 434 U. S. 882, modified on other grounds, Harris v. Hopper, 243 Ga. 244 (253 SE2d 707) (1979). Likewise, a videotaped confession is allowable in evidence. Gates, supra. That is not to say, and the trial court did not erroneously conclude, that an electronic recording of the statement was required. A panel of this court has previously rejected that contention. Coleman v. State, 189 Ga. App. 366 (1) (375 SE2d 663) (1988). The contention was based on Stephan v. State, 711 P2d 1156, 1159 (3) (Alaska 1985), which held that an unexcused failure to electronically record a custodial interrogation conducted in a place of detention violates a suspect’s right to due process under the Alaska Constitution although not under the United States Constitution.

Decided September 16, 1993.

Garry T. Moss, District Attorney, Margaret E. Daly, Assistant District Attorney, for appellant.

Louis M. Turchiarelli, for appellee.

Finally, the court was authorized by the evidence to find that the State did not carry its burden of showing by a preponderance of the evidence that the juvenile knowingly and voluntarily waived his constitutional rights. State law requires: “To make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” OCGA § 24-3-50. A hope of light punishment is usually the “hope of benefit” to which the statute refers. State v. Barber, 197 Ga. App. 353, 354 (398 SE2d 419) (1990).

Examined under both federal constitutional law and state statute, we hold that the court did not err in granting the motion to suppress the juvenile’s statements.

Judgment affirmed.

Cooper and Smith, JJ., concur.

       See generally Lane v. State, 247 Ga. 19, 20 (3) (273 SE2d 397) (1981). Compare In the Interest of L. E. S., 197 Ga. App. 494 (398 SE2d 809) (1990).

       Alaska’s view is not generally accepted. See the cases collected in People v. Raibon, 843 P2d 46, 48 (1) (Colo. App. 1992). Alaska’s view was also rejected in State v. Buzzell, 617 A2d 1016, 1018 (2) (Me. 1992); State v. Spurgeon, 820 P2d 960, 961 (1) (Wash. App. 1991); Gale v. State, 792 P2d 570, 587 (5) (Wyo. 1990); and People v. Everette, 543 NE2d 1040, 1047 (7) (111. App. 1989). However, Alaska’s view has been accepted in Smith v. State, 548 S2d 673 (3) (Glickstein, J., concurring) (Fla. Dist. Ct. App. 1987); Ragan v. State, 642 SW2d 489 (3) (Tex. Cr. App. 1982) (Tex. Code Cr. Proc. Ann., Art. 38.22, § 3, requiring that oral statements of the accused must be recorded in order to be admissible); A Model Code of Prearraignment Procedure § 130.4 (requiring sound recordings of custodial interviews).
      Citing California v. Trombetta, 467 U. S. 479 (104 SC 2528, 81 LE2d 413) (1984), courts addressing the question have held that the due process requirements of the United States Constitution do not require tape recording of custodial statements. See Stephan v. State, supra, 711 P2d at 1160.


source: Caselaw Access Project

author: Pope, Chief Judge.

license: Public Domain

text:
    A93A1390.
    D.P.S. INDUSTRIES, INC. v. SAFECO INSURANCE COMPANY OF AMERICA.
    (435 SE2d 762)
   Pope, Chief Judge.

Plaintiff D.P.S. Industries, Inc. (“D.P.S.”) brought an action against defendant Reeves Ditching (“Reeves”) and its surety Safeco Insurance Company of America (“Safeco”), alleging breach of contract against Reeves and seeking recovery under Safeco’s payment bond. Defendant Safeco filed its answer, and also asserted a counterclaim against D.P.S. and a cross-claim against Reeves. Safeco also served interrogatories upon D.P.S., and after D.P.S. responded, filed a motion for sanctions and to compel discovery, contending that D.P.S.’s responses were both untimely and insufficient. The hearing on Safeco’s motion was set for January 25, 1993, but on January 14, 1993, D.P.S. voluntarily dismissed its case without prejudice pursuant to OCGA § 9-11-41. On January 25, 1993, the trial court entered an order requiring plaintiff to respond to Safeco’s interrogatories and to pay attorney fees in the amount of $500. D.P.S. then filed this direct appeal.

1. In its only enumeration of error, D.P.S. argues the trial court erred in granting an order compelling discovery and awarding sanctions, because D.P.S.’s voluntary dismissal terminated the entire action including the counterclaim. We agree.

Pursuant to OCGA § 9-11-41: “[A]n action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case. . . . If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendant’s objection unless the counterclaim can remain pending for independent adjudication by the court.”

D.P.S. argues Safeco- never objected to the voluntary dismissal, thereby waiving any rights to pursue its counterclaim. Safeco urges an objection to a voluntary dismissal is not required in order to maintain a counterclaim when the counterclaim is capable of independent adjudication. Safeco also maintains that it did properly object to the dismissal of the complaint even though it was not required to do so. We find both of Safeco’s contentions to be without merit.

This court has previously held that a defendant must object to a plaintiff’s voluntary dismissal, pursuant to OCGA § 9-11-41, to preserve a counterclaim capable of independent adjudication, HardwickMorrison Co. v. Mayland, 206 Ga. App. 426 (425 SE2d 416) (1992), and to provide plaintiff with notice that it intends to pursue its counterclaim. Thus, in Hardwick, this court held that defendant’s failure to object to a voluntary dismissal of the main action containing a counterclaim resulted in dismissal of the counterclaim. See also Moore v. McNair, 145 Ga. App. 888 (245 SE2d 25) (1978) (holding that upon appellee’s failure to object to appellant’s voluntary dismissal, the “action,” including appellee’s counterclaim, was dismissed).

However, in addition to arguing that it was not required to object to the dismissal of plaintiff’s complaint in order to preserve its counterclaim, Safeco also contends it provided D.P.S. with “ample” written notice of its objection to the dismissal of the lawsuit. The record, however, contains no evidence of written objection. Because this court cannot consider factual allegations in a brief which are not supported by the record, we cannot consider Safeco’s claims. Dover v. Master Lease Corp., 203 Ga. App. 526 (5) (417 SE2d 368) (1992).

As further proof of its objection, Safeco argues it vigorously pursued matters relevant to its counterclaim and did not acquiesce to the plaintiff’s dismissal. Safeco cites no authority supporting its contention that an objection can be inferred from the actions of the defendant. Safeco also claims during the hearing on the motion for sanctions that it “stressed to the trial court that its counterclaim was still pending, notwithstanding the dismissal by D.P.S. of their lawsuit.” That hearing, however, was not transcribed and, as stated above, this court cannot consider representations in the briefs of the parties which do not appear in the record. Id.

Decided September 16, 1993.

Theresa K. Read, for appellant.

Dave Parrish, Sr., pro se.

Whicker, Gandy & Rice, L. Spencer Gandy, Jr., Bovis, Kyle & Burch, John V. Burch, Robert B. Caput, for appellee.

Because Safeco failed to object to D.P.S.’s voluntary dismissal, the entire action, including the counterclaim, was dismissed without prejudice. Accordingly, the trial court was without power to rule on Safeco’s motion, and the order granting the relief sought in the motion must be vacated.

2. Safeco has filed a motion to dismiss D.P.S.’s appeal and a motion for penalty, claiming D.P.S. should have filed its appeal by way of interlocutory application rather than by direct appeal. Because we find the counterclaim was dismissed for want of defendant’s objection, leaving no “action” pending in the trial court, this court has jurisdiction of the direct appeal. Pizza Ring Enterprises v. Mills Mgmt. Sources, 154 Ga. App. 45 (267 SE2d 487) (1980).

Judgment vacated. Motion to dismiss denied.

Birdsong, P. J., and Andrews, J., concur.


author: Blackburn, Judge.

text:
    A93A1805.
    SOUDER v. ATLANTA FAMILY RESTAURANTS, INC.
    (435 SE2d 764)
   Blackburn, Judge.

Appellant, Nettie Souder, an elderly, but non-handicapped individual, brought suit against appellee, Atlanta Family Restaurants, Inc., d/b/a Shoney’s (Shoney’s), to recover damages for injuries she incurred when she slipped and fell on a ramp used for handicap access from the sidewalk in front of Shoney’s to its parking lot. Souder appeals the trial court’s award of summary judgment to Shoney’s.

On February 7, 1990, Souder, her sister, and niece traveled to Shoney’s for lunch. They parked in a space near the handicap parking spaces and walked on the handicap ramp to the sidewalk on the side closest to the restaurant. The evidence indicated that the ramp was four feet wide. Upon leaving the restaurant, Souder slipped and fell when she stepped on the handicap ramp. She deposed she was making a conscious effort to step down off the flat part of the sidewalk onto the sloped edge when she fell. Souder deposed that she slipped on the portion of the ramp that was closest to the parking lot, which was steeper, than the side she had used on her way into the restaurant. She testified in her deposition that the ramp was painted white or yellow. It was daylight and the pavement was dry when Souder fell. Souder admitted that she had been to Shoney’s “once or twice every two or three weeks” for several years and that she had seen the ramp “lots of times; but” did not think it was dangerous until she fell. Souder further testified that she usually parked in the handicap parking space.

1. On appeal, Souder asserts that the trial court erred in finding that she had knowledge of the defective condition of the sidewalk equal to Shoney’s. We disagree. “Proof of a fall, without more, does not give rise to liability on the part of a proprietor. There must be proof of fault on the part of the owner and ignorance of the danger on the part of the invitee. Assuming the ramp was defective, it was a static condition. It is uncontroverted that upon entering the restaurant appellant had crossed the same area in which she fell while leaving. Thus, appellant cannot show appellee’s superior knowledge, which is necessary in order for her to recover. When a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom.” (Citations and punctuation omitted.) (Emphasis supplied.) Harpe v. Shoney’s, Inc., 203 Ga. App. 592, 593 (417 SE2d 184) (1992).

2. In her second enumeration of error, Souder asserts that the trial court erred in failing to find that Shoney’s violations of the Georgia Handicap Code, with regard to the construction of the handicap ramp, created liability. Souder argues that such a violation establishes negligence per se. Souder presented the affidavit of William Smith, an expert in handicap construction code requirements, who averred that the ramp “was in flagrant violation of the applicable [American National Standards Institute] Standards and was very unsafe for pedestrian traffic.” Smith also stated that the applicable building code required compliance with those standards.

However, we have previously held that even in cases where actionable negligence is established, “an invitee must exercise ordinary care for her own safety, and must by the same degree of care avoid the effect of the owner’s negligence after it becomes apparent to her or in the exercise of ordinary care she should have learned of it. . . .” (Citations and punctuation omitted.) Taylor v. McDonald, 183 Ga. App. 320, 321 (359 SE2d 1) (1987).

In the present case, nothing prevented Souder from appreciating the uneven slope of the ramp. Souder deposed that no obstructions impaired her view. She further “deposed that the lighting was adequate, the weather was clear, and there were no factors distracting her from exercising due care for her own safety, even when construed most favorably to appellant, the evidence demonstrates that whatever knowledge appellee may have had, it obviously was not superior to that of appellant.” (Citations and punctuation omitted.) Dunn v. Gourmet of Macon, 207 Ga. App. 826, 828 (429 SE2d 282) (1993). Therefore, summary judgment was appropriately granted to Shoney’s.

Decided September 16, 1993.

Robert H. McDonnell, for appellant.

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., David G. Goodchild, Jr., for appellee.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


author: Birdsong, Presiding Judge.

text:
    A93A1226.
    DRIGGERS et al. v. CONTINENTAL GRAIN COMPANY.
    (435 SE2d 722)
   Birdsong, Presiding Judge.

The Driggers, father and son, entered into a credit extension agreement in the form of a promissory note with appellee-plaintiff Continental Grain Company (CGC), to finance the purchase of feed for the Driggers’ swine raising business. Pursuant to a written security agreement, each pledged his swine as collateral. Alleging that the Driggers were in default, CGC filed suit, seeking both a recovery on the note and a writ of possession to foreclose on its security interest in the Driggers’ swine. Before the Driggers answered, a writ of possession was issued, all swine were removed from each debtor’s farm and sold, and the proceeds were delivered to CGC. The Driggers denied the material allegations of the complaint and counterclaimed for tortious interference with business relations and wrongful foreclosure upon certain swine not securing the debt at issue. Their motion to set aside the writ of possession was denied. CGC subsequently moved to interplead Bostic, who claimed that some of the swine levied on by CGC were in fact owned by him. After discovery, CGC moved for partial summary judgment as to the Driggers’ counterclaims. This motion was granted by the trial court. Defendants Marvis W. Driggers, Sr., and Bostic appeal. Held:

1. Driggers’ counterclaim contended the security agreement covered only those swine owned jointly by the debtors and kept by the junior Driggers, so that levy upon swine kept by the senior Driggers was unauthorized by the security agreement. The grant of partial summary judgment as to this counterclaim is enumerated as error.

Each Driggers was a party to the security agreement. The description of the collateral in the security agreement is: “All swine now owned or hereafter acquired” by the debtor, as well as the “proceeds and products from any or all of them.” (Emphasis supplied.) The writing makes no mention of any limitation of the security interest to swine jointly owned. “ ‘The question of the sufficiency of description of [collateral] in a [security agreement] is one of law, for the court; that of the identity of the property mortgaged is one of fact, to be decided by the jury.’ [Cits.]” Bank of Cumming v. Chapman, 245 Ga. 261 (264 SE2d 201). Nevertheless, where “the jury can draw but one conclusion, such [fact] question can be resolved as a matter of law through summary judgment. [Cits.]” Kubota Tractor Corp. v. C & S Nat. Bank, 198 Ga. App. 830, 838 (4) (403 SE2d 218).

The description “all swine now owned or hereafter acquired” is not ambiguous. Although the Driggers promised to keep the swine at a specified location, namely the farm of Marvis Driggers, Jr., that covenant did not operate to limit the collateral, previously pledged as “all swine,” to “all swine kept at Marvis Driggers, Jr.’s, farm.” The collateral pledged to secure credit extended to purchase the feed included all swine owned by either debtor, wherever located. There is no genuine issue of material fact as to the reach of the security agreement. As to the swine actually owned by appellant or his son, the trial court correctly granted summary judgment against them on their counterclaim for wrongful foreclosure. The trial court’s order does not purport to reach any claim Bostic might have against CGC for wrongful levy upon swine possessed by Marvis Driggers, Sr., but allegedly owned by such third parties as Bostic. Such issues remain pending before the trial court and we express no opinion thereon.

2. The partial grant of summary judgment as to appellants’ counterclaim for tortious interference with business relations is enumerated as error. In support of this counterclaim, appellants alleged that CGC wrongfully contacted someone who had purchased swine from appellants, and that the proceeds of that sale were wrongfully withheld from appellants. The record reveals that the buyer stopped payment on the check given to Marvis Driggers, Jr., and instead paid the proceeds of the sale into the registry of the court.

As noted above, a security interest was expressly granted in the proceeds of the Driggers’ swine. Compare OCGA § 11-9-203 (3). “ ‘Proceeds’ includes whatever is received upon the sale, exchange, collection, or other disposition of collateral or proceeds.” OCGA § 11-9-306 (1). The Driggers agreed that with respect to proceeds, CGC, as the secured party, “may at any time notify account debtors that the accounts receivable have been assigned to [CGC] and shall be paid to [CGC].”

In order to state a claim for intentional interference with business relations, it is necessary to show, in part, that the alleged inter-meddler acted improperly and without privilege. Nilan’s Alley v. Ginsburg, 208 Ga. App. 145, 146 (2) (430 SE2d 368). “Since [CGC] merely asserted its contractual rights in [contacting the buyer, i.e., the account debtor, and demanding that proceeds from Driggers’ sale of collateral be turned over to it], the trial court correctly granted summary judgment as to the counterclaim for tortious interference with business relations. [Cit.]” Russell Corp. v. BancBoston Financial Co., 209 Ga. App. 660, 663 (4) (434 SE2d 716) (1993).

Decided September 1, 1993

Reconsideration denied September 17, 1993

Stubbs & Associates, M. Francis Stubbs, for appellants.

Inglesby, Falligant, Horne, Courington & Nash, Sam P. Inglesby, Jr., Doremus, Jones & Smith, Bobby T. Jones, for appellee.

3. Remaining enumerations have been considered and are found to be rendered moot by our previous holdings.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1268.
    MOFFITT et al. v. HUTCHINSON et al.
    (435 SE2d 707)
   Birdsong, Presiding Judge.

Plaintiffs Rita and Robert Moffitt appeal from a verdict and judgment in favor of defendants Jeffrey Hutchinson and Little Caesar Enterprises, Inc., in a suit for damages arising out of a collision between plaintiffs’ vehicle and Hutchinson’s vehicle, while Hutchinson was en route to work after picking up his co-worker, who was also his girl friend. Appellants contended Hutchinson’s supervisor instructed him to pick up his co-worker. A verdict of liability was directed against Hutchinson. The issue remaining for trial was whether he was acting within the scope of his employment for Little Caesar’s at the time of the collision.

Appellants contend the trial court erred by failing to give the entirety of this requested charge, from Jones v. Aldrich Co., 188 Ga. App. 581, 583 (373 SE2d 649): that an employee in going to and from his work acts only for his own purposes and not for those of his employer except where the employee undertakes a special mission at the direction of the employer. Where the employee is on his way from his home to perform “ ‘some special' service or errand or the discharge of some duty incidental to the nature of his employment’ ” in the interest of, or under direction of, his employer, and an injury arises en route from the home to the place where the work is performed, such injury is considered as arising out of and in the course of the employment.

Decided August 26, 1993

Reconsideration denied September 17, 1993.

Jean E. Johnson, Jr., Lance A. Cooper, for appellants.

Lane, O’Brien, Caswell & Taylor, Stephen J. Caswell, Steven J. Misner, for appellees.

The trial court’s charge omitted the language quoted above. Appellants contend this omission eviscerated their case because the issue was whether Hutchinson’s supervisor instructed him to pick up his co-worker. Held:

The trial court charged the jury that an exception to the general rule that an employee going to and from work acts only for his own purpose and not for his employer exists “when the employee undertakes a special mission at the direction of [his] employer, where the employee before customary working hours is on the way from his home to perform the discharge of some duty under the direction of his employer.” (Emphasis supplied.) This charge was correct and covered the point made by appellants, i.e., that Hutchinson was on his way to perform “some special service or errand” under the direction of his employer. The requested language is surplusage to the charge given. If the jury had found that Hutchinson was directed by his manager to pick up his co-worker, under the charge actually given they would perforce have found Little Caesar’s liable as respondeat superior.

Failure to give a charge in the exact language requested is not error, where the charge given substantially covers the circumstances in the case; all that is necessary is that the principles in the requested charge be fairly charged, and that the charge accurately charges the law under the evidence in the case. Swint v. Smith, 204 Ga. App. 54, 55 (418 SE2d 375); Hitchcock v. Key, 163 Ga. App. 901, 903-904 (296 SE2d 625).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1276.
    OXLEY v. THE STATE.
    (435 SE2d 705)
   Birdsong, Presiding Judge.

Cathy Jean Oxley pled guilty to driving under the influence, the trial court allowing her to reserve for appeal its grant of the State’s motion in limine. On May 20, 1992, at 2:12 a.m., Oxley was pulled over for speeding and running two stop signs; she had a strong odor of alcohol on her breath; had red glassy eyes and was unsteady on her feet. She failed field sobriety tests and registered “positive” on an alcosensor. She was taken to the police station where she submitted to an Intoximeter 3000 test which showed a blood-alcohol content of .13 grams percent. A second breath test administered by police showed .12 grams percent.

Some time after her arrest, appellant read a newspaper article about the Intoximeter 3000 test; she became concerned about the effect of acetone on blood-alcohol tests using machines in which the Taguchi cell has been removed. See Lattarulo v. State, 261 Ga. 124, 126-127 (401 SE2d 516). Appellant met Chief Denny of the Hapeville Police Department, who read the article. Together they performed certain “experiments,” to wit: “Miss Oxley was given the opportunity, she was observed, she had not been drinking, there was no odor of alcohol, she was not unsteady on her feet, her eyes were not glassy and her speech was not slurred. She was given the Intox 3000 with the City of Hapeville Police Department. The [result] was .08. She was immediately transported by a Lieutenant with the . . . City of Hapeville Police Department to South Fulton Hospital [about] five minutes [later where] blood was extracted. The results [of that blood test] were .00. It was totally negative for the presence of any alcohol. ... [A] further test was conducted where a witness observed her going back . . . with the same bartender where . . . she took two mixed drinks in a period of time that will be testified to, went back, did not drive, of course, but was taken back to the . . . Police Department where, after the consumption of only two standard mixed drinks over a period of time when it should have ended up probably 00, but where it certainly should have been very, very low, she blew into the Intox 3000 and was again point 17 which was totally out of the range of anything that it could have been.”

Appellant contended her expert testimony would show that because of the disabling of the Taguchi cell in the Intoximeter 3000 machines in Georgia in 1984, that machine is not capable of picking up substances which read on the same infrared scale as ethanol, and is unreliable when used on appellant. The trial court ruled appellant could give evidence that she was exposed to acetone, and that her expert could give his opinion as to the effect of acetone on the Intoximeter 3000 machines as used by the State of Georgia. However, the evidence of the experiments performed by appellant and police personnel was disallowed, on the basis that evidence of testing on a different machine than the one on which she was tested after her offense is irrelevant, because, as in Blanos v. State, 192 Ga. App. 835, 836 (386 SE2d 714), “the original tests condition, including defendant’s own physical condition, could not have been duplicated.” Appellant contends the disallowance of this evidence was error under Lattarulo, supra ¿t 126, where it was said: “An accused may always introduce evidence of the possibility of error or circumstances that might have caused the machine to malfunction.” Held:

Decided August 26, 1993

Reconsideration denied September 17, 1993

Sexton & Associates, Lee Sexton, for appellant.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.

Appellant contends that unlike the defendant in Blanos, supra, she is not trying to duplicate the conditions of her testing after her arrest, but rather she is trying to demonstrate that no accurate result can be obtained for her with any Intoximeter 3000 machine with the disengagement of the Taguchi cell, and that her experiments would support this contention, the weight of that evidence being a jury issue. Lattarulo, supra.

The trial court did not err in disallowing the evidence of appellant’s and the police chief’s experiments. The experiments may suggest an apparent anomaly in the machines used in the experiments, but they are not evidence that no accurate result can be obtained in appellant’s circumstances with any Intoximeter 3000 machine presently used in Georgia. Certainly they are not evidence that the machine used after her arrest gave a false result. Expert testimony of this nature might be admitted in a proper case, but the evidence proffered here is not evidence that the Intoximeter 3000 test cannot give accurate results in appellant’s alleged circumstances. The proffered evidence, at best, suggests the machines used by appellant in the experiments, gave anomalous results.

The right to challenge intoximeter test results stated in Lattarulo is the right to introduce evidence of the possibility of error or circumstances “that might have caused the machine [on which the defendant was tested upon arrest] to malfunction.” Id. The evidence proffered in this case is irrelevant to that purpose, for like the evidence offered in Blanos, it does not duplicate the conditions of the machine used or the conditions of appellant on her arrest.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1609.
    OGLETHORPE POWER CORPORATION v. SHERIFF.
    (436 SE2d 14)
   Birdsong, Presiding Judge.

This suit arises from claims of trespass and. conversion by intentional damage to certain trees averred to have occurred when Oglethorpe Power Corporation exceeded a right-of-way for the erection of an electrical power line.

The jury awarded plaintiff $3,783.29 compensatory damages and $25,492.87 attorney fees for conversion; $20,000 attorney fees for bad faith, being stubbornly litigious, or causing the plaintiff unnecessary trouble and expense; and $100,000 punitive damages. The trial court entered judgment, but limited attorney fees to $25,492.87 for conversion claim litigation.

Appellant timely filed a direct appeal of the order denying its motion to set aside or, in the alternative, for a new trial. Appellant enumerates 12 errors. Held:

1. This court lacks jurisdiction to review the denial of the motion to set aside judgment, as appellant failed to use the discretionary appeals procedure of OCGA § 5-6-35 (a) (8). See State Farm Mut. Auto. Ins. Co. v. Yancey, 258 Ga. 802 (375 SE2d 39). Accordingly, this portion of the appeal is dismissed. However, we have jurisdiction of the direct appeal of the denial of the new trial motion (see Hill v. Bailey, 187 Ga. App. 413 (1) (370 SE2d 520)); compare Magnum Communications v. Intl. Business Machines Corp., 206 Ga. App. 131 (1) (424 SE2d 379).

2. (a) Appellant moved to strike the testimony of a real estate broker on the basis the witness was not a certified real estate appraiser. A real estate broker is not disqualified per se from testifying as an expert on the issue of the alleged diminution of value of real property. Compare Brunswick Floors v. Shuman, 185 Ga. App. 362, 363 (2) (364 SE2d 96). The trial court did not breach its discretion in this matter.

(b) Appellant failed timely and specifically to object to this testimony, on the ground that the expert was unable to testify as to the date of trespass or as to the amount of property involved. Thus, these issues are not preserved for appeal. See Gully v. Glover, 190 Ga. App. 238, 241 (4) (378 SE2d 411). A motion cast as “I move to strike his testimony” is general in nature and preserves no specific ground in support thereof on appeal. Cf. Nodvin v. West, 197 Ga. App. 92, 95 (3a) (397 SE2d 581).

3. The trial court did not err in declining to withdraw the issue of attorney fees from the jury at the close of plaintiff’s evidence; there was sufficient evidence to support jury consideration. The substance and purpose of the motion was to obtain in effect a directed verdict as to the issue of attorney fees on the basis of insufficiency of the evidence. The proper standard of review is the “any evidence” test (see F. A. F. Motor Cars v. Childers, 181 Ga. App. 821 (1) (354 SE2d 6)), and the evidence must be construed in the light most favorable to the winning party (see Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 159 (256 SE2d 916)). Upon appellate review of a denial of a defendant’s motion to withdraw the issue of attorney fees or motion for directed verdict as to such issue, “this court will consider all relevant admissible evidence of record whether admitted or elicited during the plaintiff[’s] case in chief or subsequent thereto.” Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga. App. 573, 576 (3b) (377 SE2d 15).

The tort of conversion of timber by intentional damage, as averred, gives rise to a claim of intentional tort. “ ‘The bad faith referred to (in OCGA § 13-6-11), in actions sounding in tort, means bad faith in the transaction out of which the cause of action arose’ ” (Brown v. Baker, 197 Ga. App. 466, 467 (3) (398 SE2d 797)), and OCGA § 51-12-51 (a) expressly authorizes the recovery of reasonable attorney fees for a broad range of acts generally categorized as a conversion of timber.

In this case, there is evidence from which the jury could infer bad faith. See OCGA § 13-6-11. Although the number of trees cut outside the right-of-way and the reason for such cutting was in dispute, appellant’s transmission line inspector admitted he ordered the cutting of trees outside of the right-of-way. The condemnation order contained no authority to cut these particular trees. The inspector also conceded in his testimony that if the power company cut trees and cleared land beyond the right-of-way, it would not have to come back to cut trees to maintain that right-of-way for a long time, although he asserted that no advantage would be obtained by such conduct. The circumstances surrounding and reason for cutting the trees presented issues of good faith for jury resolution. “Questions of bad faith, stubborn litigiousness, and unnecessary expense, under OCGA § 13-6-11, are generally questions for the factfinder.” Manderson & Assoc. v. Gore, 193 Ga. App. 723, 735 (9) (389 SE2d 251).

Additionally, a legitimate award of damages for an intentional tort, such as trespass or intentional conversion, generally will support a claim for expenses under OCGA § 13-6-11 “ ‘under the theory that the intention evokes that “bad faith” necessary for recovery under’ ” the statute. Wisenbaker v. Warren, 196 Ga. App. 551, 552 (2) (396 SE2d 528).

Each of appellant’s enumerations of error based on a claim of insufficient evidence to support a jury award of attorney fees is without merit.

4. The trial court did not err in failing to withdraw the issue of punitive damages from the jury at the close of the plaintiff’s evidence; there was sufficient evidence to support jury consideration. For the reasons stated in Division 3 above, this motion was in substance and effect a motion for directed verdict as to punitive damages.

(a) The criteria for the award of punitive damages are stated in OCGA § 51-12-5.1 (b). There exists some evidence from which the jury could find, by clear and convincing evidence, that defendant’s actions in the commission of an intentional tort showed one or more of these criteria, particularly “that entire want of care which would raise the presumption of conscious indifference to consequences.”

(b) Appellant further contends that the award of punitive damages is so disproportionate to appellee’s actual damage (as reflected by the amount awarded as compensatory damages), as to compel this court to grant relief. However, as to causes of action arising on or after July 1, 1987, “[p]unitive damages shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant.” (Emphasis supplied.) OCGA § 51-12-5.1 (c), (h). Compelling punitive damage awards to be mathematically proportionate, except when given to compensate for wounded feelings, would create a judicial barrier to the achievement of these clear and legitimate legislative purposes. “The concept of proportionality as a legal limitation on the amount of punitive damages applies, in Georgia, only when such damages are given to compensate for wounded feelings. A deterrence award is based on factors, for the most part, unrelated to the injury to any particular victim, and is limited only by the collective conscience of the jury.” Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. 759, 762 (2) (386 SE2d 120).

(c) Appellee was awarded compensatory and punitive damages for appellant’s intentional tortious conduct; but appellee obtained this recovery only after the trauma and expense of litigation, including the incurring of a substantial charge for attorney fees in his quest for judicial relief. When the expense of litigation incurred by appellee is considered together with the amount of the award of direct compensatory damages, the jury rendered punitive damages which were approximately only three times greater than the combined amount of direct damages and attorney fees suffered. Viewed in this light, any argument of gross disproportion pales in significance. In any event, as one of the legitimate purposes of punitive damages is to “deter the repetition of reprehensible conduct by the defendant” and because deterrence is based on factors other than the actual harm caused, “the notion that punitive damages must necessarily bear some relationship to the actual damages awarded by the jury” has been rejected in this state. Hosp. Auth. of Gwinnett County v. Jones, 261 Ga. 613, 614 (1) (409 SE2d 501). “[H]owever . . . this relationship may be considered on the issue whether the punitive damage award is excessive due to undue passion and prejudice.” Id. at 614, n. 3. Appellant has not asserted that the jury awarded excessive punitive damages borne of any “undue passion and prejudice.” Accordingly, this issue has been abandoned on appeal. Court of Appeals Rule 15 (c) (2). Moreover, the record does not affirmatively support any contention of “undue passion and prejudice.”

(d) In addition to the broad discretion vested in trial courts to set aside any judgment it considers excessive and not supported by the evidence, “appellate courts may also set aside an oppressive jury verdict under OCGA § 51-12-12.” Hosp. Auth., supra, 259 Ga. at 766. Appellant has failed to establish affirmatively by the record either that the trial court breached its discretion in entering a judgment that included the award of punitive damages or that the punitive damage award constituted an oppressive jury verdict under OCGA § 51-12-12.

Both error and harm must be shown affirmatively by the record before appellate relief is mandated. See generally Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (1) (378 SE2d 510). In the absence of an oppressive jury verdict, we may not substitute our collective appellate conscience for that of a jury. See Hosp. Auth., supra.

5. Appellant asserts it is a wholesale supplier of electricity pursuant to OCGA § 46-3-170 and a public service corporation rather than a profit corporation; accordingly, it is shielded from liability for punitive damages as a matter of public policy. Compare MARTA v. Boswell, 261 Ga. 427 (405 SE2d 869) where an award of punitive damages in a suit against MARTA, a quasi-governmental entity, was held to violate public policy. An electric membership corporation, under the Georgia Electric Membership Corporation Act, is vested with the power to sue and to be sued (OCGA § 46-3-201 (a) (3)) and is provided with no express statutory immunity from liability for punitive damages. We find MARTA v. Boswell, supra, to be unique in application, and a necessary judicial departure from the will of the legislature. Substantial differences exist between the legal nature of appellant and MARTA, as well as substantial differences as to the nature of their services and to whom such services are provided. For example, it was testified that if appellant realized any profits at the end of its fiscal year, the profit would be “rebated to the 39 member systems.” We decline to expand the holding in MARTA u. Boswell to appellant; judicial restraint in expanding the scope of MARTA v. Boswell has been cautioned (see dissenting opinion at 432-433). Sometimes, “but a very fine line separates]” legitimate judicial interpretation from unauthorized judicial legislation (Mansfield v. Pannell, 194 Ga. App. 549, 551 (390 SE2d 913)); we lack power to legislate. Likewise distinguishable is Ga. Ports Auth. v. Hutchinson, 209 Ga. App. 726, 730 (13) (434 SE2d 791) (1993) finding that, as the Georgia Ports Authority is a governmental entity and arm of the State, an award of punitive damages against it would violate public policy.

Decided August 23, 1993

Reconsideration denied September 17, 1993

Thomas F. Choyce, for appellant.

Ogletree, Deakins, Nash, Smoak & Stewart,: Michael L. Chapman, for appellee.

Moreover, examination of the trial record reflects that this particular enumeration was not adequately raised before the trial court. Compare Gully v. Glover, supra.

6. Appellant’s claim of reversible error due to appellee’s alleged reading of the law in a civil case during closing argument and by presenting such law by means of excerpts on charts is without merit. See OCGA § 9-10-183. The trial court has discretion in the control of such matters; appellant has failed to show an abuse of that discretion.

7. There was no error in failing to give appellant’s request to charge no. 4. It was not perfect, advanced two distinct legal theories, and had the potential to mislead and confuse the jury as to both legal theories sought to be charged. Continental Research Corp. v. Reeves, 204 Ga. App. 120 (3) (419 SE2d 48); compare OCGA § 51-12-50.

8. There was no error in failing to give appellant’s request to charge no. 7. The substance of the requested charge was given by the trial court. Mattox v. MARTA, 200 Ga. App. 697, 699 (2) (409 SE2d 267). The last two sentences in the requested charge, which were omitted in the trial court’s charge, were not legally perfect and had the potential to confuse the jury as to their proper application. Reeves, supra.

9. As no timely and adequate exception was taken to the giving of plaintiff’s request to charge no. 14, the issue has not been preserved on appeal. Rodriguez v. Davis, 202 Ga. App. 550 (1) (415 SE2d 41).

10. Appellant’s remaining enumerations of error are also without merit.

Appeal dismissed in part; judgment affirmed.

Pope, C. J., and Andrews, J., concur.


author: Smith, Judge.

text:
    A93A0901.
    TURNER v. THE STATE.
    (436 SE2d 229)
   Smith, Judge.

Alan John Turner was convicted of operating 'a motor vehicle after being declared an habitual violator and driving with defective equipment. OCGA §§ 40-5-58; 40-8-7. On appeal, he enumerates as error the trial court’s failure to charge the jury on the defense of mistake of fact; the court’s failure to grant a mistrial after comments by the prosecutor during closing argument; and the court’s refusal to admit certain testimony. We affirm.

1. Turner’s apparent basis for his defense of mistake of fact is his testimony that “I just thought my license was good.” He testified that he called the Department of Public Safety in Atlanta and was told by an unidentified person that his license would be good with the payment of $25. Turner testified that, because of this conversation, he believed he might be charged with failure to have a license on his person but not with habitual violator. He admitted he did not pay the $25 or visit the Department to obtain his license before his arrest in February 1992. He ultimately obtained a new license in March 1992.

“While a trial court is required to charge on a criminal defendant’s sole defense of mistake of fact even absent a request to do so [cits.], such a charge is not required where, as here, it is not authorized by the evidence. [Cit.]” Gunter v. State, 155 Ga. App. 176, 177 (3) (270 SE2d 224) (1980). A mistake of fact is defined as “a misapprehension of fact which, if true, would have justified the act or omission.” OCGA § 16-3-5. Failure to give a charge on mistake of fact is not error where the evidence shows that a party has made a mistake of law. Morgan v. State, 161 Ga. App. 67, 68 (3) (288 SE2d 836) (1982).

Turner’s alleged reliance on a telephone conversation with an unidentified person is a mistake of law and not of fact. The only “fact” of which he claims to have been mistaken is whether or not he was able to drive without first having obtained his driver’s license. The relevant statute gives detailed and explicit guidance on this topic. See OCGA § 40-5-58. Turner himself testified that he was told to pay a fee and visit the Department of Public Safety to obtain a license, and that he failed to do so before driving. Finally, Turner admitted that he knew he was violating the law; he was merely mistaken as to the applicable law and the penalty which would result.

“It is axiomatic that ‘(e)veryone is presumed to know the law and ignorance thereof is not an excuse for its violation.’ [Cits.] Thus, the mere fact that the appellant may have been ignorant of the continued existence of his habitual violator status and the resultant consequences . . . did not, in and of itself, afford him any defense to the felony charge of which he was convicted.” Connelly v. State, 181 Ga. App. 261, 262 (351 SE2d 702) (1986). See also OCGA § 1-3-6. The trial court properly refused the requested charge.

2. We do not reach the merits of Turner’s contention with regard to the motion for mistrial, because trial counsel explicitly withdrew that motion on the record and agreed to curative instructions in lieu of renewing the motion. Turner waived his right to appellate review by failing to renew his objection or his motion for mistrial after the trial court’s curative instruction was given. Perkins v. State, 260 Ga. 292, 295 (6). (392 SE2d 872) (1990).

Decided September 17, 1993.

Suelten Fleming, for appellant.

Robert E. Keller, District Attorney, Gregory K. Hecht, Assistant District Attorney, for appellee.

3. Turner’s final enumeration of error is the trial court’s refusal to admit the testimony of his neighbor, James Reynolds, a deputy sheriff with Clayton County, who would have testified that Turner told him about his conversation with the Department of Public Safety. Without reaching the issue of whether or not this hearsay could be admissible to explain Turner’s conduct, we note that Turner himself was allowed to testify over objection to the same conversation. Also, Reynolds was allowed to testify that Turner convinced him that “he should have been behind the wheel.” Under these circumstances the refusal to allow Turner to present cumulative or amplifying evidence was, at most, harmless error. State v. Sears, 202 Ga. App. 352, 353 (3) (414 SE2d 494) (1991). As discussed above, however, the belief of Turner or his reliance on another’s belief with regard to the law is no defense. See Bowman v. State, 186 Ga. App. 544, 545-546 (1) (368 SE2d 143) (1988), rev’d on other grounds 258 Ga. 829 (376 SE2d 187) (1989). This contention has no merit.

Judgment affirmed.

Beasley, P. J., and Cooper J., concur.


text:
    A93A0915.
    WATERS v. THE STATE.
    (436 SE2d 44)
   Birdsong, Presiding Judge.

Mark Richard Waters appeals his convictions of driving under the influence of alcohol (DUI) and improper lane change. He contends the trial court erred by allowing the prosecution to impeach his testimony with his unauthenticated driving record that showed a plea of nolo contendere to an earlier charge of DUI and other errors we need not address here. Held:

1. Waters’ enumerations of error concerning his impeachment with an unauthenticated computer printout showing his driver’s record and admission of the nolo contendere plea arises from the following cross-examination: “Q: [by the prosecutor]: How long were you traveling in that emergency lane for? A: [by Waters]: A tenth or two, a little further than — I have been pulled over probably three or four times for a traffic violation, there were tires and debris all over the side of the road, so I went a little further, maybe a tenth or two. Q: You just indicated that you have been pulled over three or four times on traffic violations? A: No, I said I have been pulled over before. Q: You indicated that it was three or four times? A: I shouldn’t say that, I’m sorry. I don’t know the exact number or anything.”

At this point a hearing was conducted out of the presence of the jury during which Waters objected to any impeachment with his driving record because that document was not authenticated and because he corrected his testimony so that he did not state he was only pulled over three or four times.

The State, however, contended it was entitled to impeach Waters’ testimony because Waters voluntarily stated that he was pulled over only three or four times and that it could do so with his driving record because the record satisfied the requirements of OCGA §§ 24-3-17 and 40-5-2. Later, over Waters’ objection, the State introduced the driver’s record showing that Waters had entered a nolo contendere plea to a charge of driving under the influence.

Waters first contends the trial court erred by allowing the State to introduce his driver’s record that showed that he entered a plea of nolo contendere. Under appropriate circumstances the State is allowed to impeach witnesses, including defendants, by showing they testified falsely, but doing so with evidence of a nolo contendere plea violates and contravenes the purpose of OCGA § 17-7-95 (c). The prosecution cannot elicit testimony from a criminal defendant on cross-examination and then impeach such testimony through use of a plea of nolo contendere. State v. Rocco, 259 Ga. 463, 467 (384 SE2d 183); Corbitt v. State, 190 Ga. App. 509 (379 SE2d 535). Therefore, the trial court erred by allowing the State to introduce Waters’ driving record that showed that he had entered a plea of nolo contendere to driving under the influence.

Further, while witnesses “may be impeached by disproving the facts testified to by him” (OCGA § 24-9-82; Parker v. State, 169 Ga. App. 557 (313 SE2d 751)), the prosecution was not authorized to use this evidence to impeach Waters’ testimony that he had been “pulled over” three or four times because Waters almost immediately revised that testimony to state he did not know the exact number of times he had been pulled over. Thus, the State had no basis for impeaching his testimony. Moses v. State, 190 Ga. App. 699, 700 (379 SE2d 819).

Further, even if the records were otherwise admissible, there was an inadequate foundation for the introduction of the driver’s record. Records of the Department of Public Safety are admissible when the records are certified (OCGA § 24-3-17 (a)) or when, even without certification, the records are “obtained from any terminal lawfully connected to the Georgia Crime Information Center” (OCGA § 24-3-17 (b)). Although the record in this case seemingly was obtained from such a computer, no witness testified that it was so obtained. Instead, the prosecutor merely represented in argument that the record was obtained from such a computer. This is not evidence, and thus, we find the prosecutor also did not lay an adequate foundation for introduction of the driver’s record. See Thomas v. State, 196 Ga. App. 88, 91 (395 SE2d 615).

Decided September 17, 1993.

Lenzer & Lenzer, Thomas P. Lenzer, Robert W. Lenzer, for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Jeffrey P. Kwiatkowski, Assistant Solicitors, for appellee.

Although the State urges us to find any error harmless because of overwhelming evidence of Waters’ guilt (see Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869)), the evidence does not support such a conclusion. This case was closely contested and we cannot determine what role this evidence may have played. Therefore, Waters’ conviction must be reversed.

2. In view of the result reached in Division 1, we need not address the remaining enumerations of error.

Judgment reversed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1124.
    HAMMOND v. SANDERS.
    (436 SE2d 45)
   Birdsong, Presiding Judge.

Derek Lester Hammond, Administrator C.T.A. of the Estate of Donald Lester Hammond, appeals from the grant of summary judgment to Kimberly Ann Sanders, Administratrix C.T.A. of the Estate of Linda Wheeler Hammond, in a declaratory judgment action apparently filed under OCGA § 9-4-4 in Fayette County Superior Court. The complaint sought a judgment declaring that Linda Wheeler Hammond predeceased Donald Lester Hammond.

Donald Lester Hammond caused the death of his wife, Linda Wheeler Hammond, by shooting her in the chest with a high-powered rifle, and almost immediately killed himself with a shot in the head from the same rifle. Although the complaint sought a declaration on whether Linda Wheeler Hammond predeceased Donald Lester Hammond, the trial court did not address this issue, but instead resolved the case by deciding that the estate of Donald Lester Hammond was not entitled to inherit from Linda Wheeler Hammond because any claim would be barred by OCGA § 53-4-6 (a) which prohibits the right of inheritance to any person who with malice aforethought kills another.

Derek Lester Hammond, administrator of his father’s estate, now appeals. He contends the trial court erred by granting summary judgment because the evidence showed that Linda Wheeler Hammond predeceased Donald Lester Hammond, because OCGA § 53-4-6 (a) was inapplicable, and because the trial court did not consider the applicability of OCGA § 33-25-13 to this case. Held:

Our initial consideration is whether this was an appropriate case for declaratory judgment. See Dept, of Corrections v. Brown, 198 Ga. App. 862 (403 SE2d 452). The petition for declaratory judgment merely alleged that the evidence showed that Linda Wheeler Hammond predeceased Donald Lester Hammond and, thus, her estate should not inherit from his. The petition, however, does not assert that the petitioner faced any uncertainty or that as administrator he was in need of direction to prevent actions which would jeopardize the interest of Donald Lester Hammond’s estate. The record does not show that any claim arising from these issues had been filed by Linda Wheeler Hammond’s estate or any other party or that any such claim was expected to be filed against Donald Lester Hammond’s estate, that construction of Donald Lester Hammond’s will was necessary, or that the administrator of his estate anticipated taking any action which, if not directed by a declaratory judgment, might jeopardize the estate. Cf. Sentry Ins. Co. v. Majeed, 194 Ga. App. 276 (390 SE2d 269), aff’d 260 Ga. 203 (391 SE2d 649) (no specific case or controversy pending). Instead, the matters the administrator apparently wants to address could be resolved during the probate of Linda Wheeler Hammond’s estate or by a claim for the proceeds of Donald Lester Hammond’s insurance policy.

While administrators are entitled under OCGA § 9-4-4 (a) to judicial guidance (see Stephens v. First Nat. Bank of Atlanta, 222 Ga. 423, 426 (150 SE2d 865)), the requirement for a determination to guide and protect administrators from uncertainty and insecurity with respect to some future act or conduct applies in cases arising under OCGA § 9-4-4 as well as to cases arising under OCGA § 9-4-2. Gay v. Hunt, 221 Ga. 841, 845 (148 SE2d 310); Mendel v. Pinkard, 217 Ga. 562, 563 (123 SE2d 770); Brewton v. McLeod, 216 Ga. 686, 691 (119 SE2d 105); Pinkard v. Mendel, 216 Ga. 487, 490 (117 SE2d 336). Consequently, a declaratory judgment was not authorized because the rights of the parties have accrued and there is no uncertainty alleged which requires direction from the court. Taylor v. Mosley, 252 Ga. 325 (314 SE2d 184); Rowan v. Herring, 214 Ga. 370, 373-374 (105 SE2d 29).

Therefore, the judgment is nugatory and must be set aside. The judgment is vacated. Dept. of Corrections v. Brown, supra; Logan Paving Co. v. Peoples Bank & Trust, 196 Ga. App. 42, 43 (395 SE2d 287).

Decided September 17, 1993.

Glover, Blount & Cruse, Samuel W. Cruse, for appellant.

Saia, Richardson & Meinken, Joseph J. Saia, for appellee.

Judgment vacated.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1147.
    MUFF v. THE STATE.
    (436 SE2d 47)
   Pope, Chief Judge.

Defendant Julius Muff was convicted by a jury of selling cocaine and received a mandatory life sentence due to a prior conviction for possession of cocaine with intent to distribute.

Deputy Charlese Barkley, an undercover agent for the Bibb County Sheriff’s Department, testified that she went to 1334 Third Street to purchase crack cocaine. When she arrived, a man without a shirt was on the porch, talking on a cordless phone. He walked down to her car, still talking on the phone, and she let him into the car because it was raining. Barkley waited while he finished his phone conversation. Another man came up to buy cocaine, and Barkley continued to wait while that purchase was completed. She then bought ten pieces of crack cocaine for $10 a piece. The man with the phone then left the car, and Barkley drove off. Within an hour of the purchase, Barkley identified defendant’s picture as that of the seller, picking it from a six-photograph lineup. Barkley also identified defendant at trial as the man from whom she bought cocaine.

Defendant presented evidence indicating that Barkley’s description of the man who sold cocaine actually fit his brother, who weighed about 20 pounds less than defendant, better than it fit him. Defendant also showed the jury a scar which he argued Barkley should have noticed if he had in fact been the man from whom she bought the cocaine. On rebuttal, however, defendant’s brother was brought into the courtroom and Barkley explicitly denied that he was the one who sold her cocaine.

1. Defendant first challenges the sufficiency of the evidence identifying him as the seller of the cocaine. Deputy Barkley identified defendant as the man who sold her the cocaine several times, without hesitation or equivocation, and further stated that defendant’s brother was not the seller. Barkley also testified that there was plenty of light at the time of the sale; that she saw the seller well that day; and that she again saw the seller a couple of days later. Viewing the evidence in the light most favorable to support the verdict, it is sufficient to allow a jury to find that defendant was the man who sold Barkley the cocaine beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hill v. State, 205 Ga. App. 475 (1) (422 SE2d 564) (1992).

2. In his second enumeration of error, defendant argues that his trial counsel was ineffective because he failed to inform the defendant that he faced a mandatory life sentence if he went to trial and was convicted. The State notified defendant of its intent to present a prior conviction for the purpose of sentencing, identifying the conviction by indictment number, court and date. However, the notice indicated the conviction was for possession of cocaine rather than possession with intent to distribute, and defendant’s trial counsel accepted this description and advised defendant accordingly. Defendant’s trial counsel acknowledged at the sentencing hearing that he had not told his client that he would necessarily face a life sentence if convicted. However, he further stated that because defendant maintained that he was the innocent victim of misidentification, he probably would not have encouraged defendant to accept a plea bargain even if he had been aware of the actual nature of the prior conviction. The trial judge agreed that defendant should not have pled guilty if he maintained his innocence, regardless of what was offered for his plea, and proceeded to sentence defendant to life. This discussion was simply a colloquy between counsel and thé judge during the sentencing hearing; however, no evidentiary hearing was held. Trial counsel filed a motion for new trial which was denied. Defendant has new counsel on appeal and raises this ineffective assistance issue here for the first time.

To show ineffective assistance of counsel, defendant must establish both that his counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. See, e.g., Lloyd v. State, 258 Ga. 645 (2) (373 SE2d 1) (1988). In Lloyd, trial counsel failed to communicate a plea offer to his client, and the terms of that offer were favorable compared to the result of the trial. The Supreme Court stated that a counsel’s failure to fully communicate to his client the terms of a plea offer and the consequences of the choices confronting him amounted to “less than reasonably professional assistance.” 258 Ga. at 648 (2a). While recognizing that “the consequences of rejecting a guilty plea offer differ substantially from those consequences emanating from entering a guilty plea” on the basis of faulty advice, the Supreme Court held that such a rejection will support a claim of ineffective assistance under proper circumstances. Id. at 646 (2).

Decided September 17, 1993.

L. Elizabeth Lane, for appellant.

Willis B. Sparks III, District Attorney, R. Jeffrey Lasseter,

“The defendant must further show that ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Cit.] Logically, such prejudice can only be shown by some indication that the defendant was amenable to the offer made by the state. Several state courts have summarily resolved this by assuming the defendant would accept any plea offer which was favorable when compared to the actual outcome. See for example Lyles v. Indiana, [382 NE2d 991 (Ind. App. 1978)]; People v. Whitfield, [239 NE2d 850 (Ill. 1968)]; Hanzelka v. State, [682 SW2d 385 (Tex. App. 1984)]. Other courts require a showing by the defendant that, prior to verdict, he evidenced an interest in pleading guilty and that he would have accepted the offer had he learned of it. See Rasmussen v. State, [658 SW2d 867 (Ark. 1983)]; United States v. Zelinsky, [689 F2d 435 (3rd Cir. 1982)]; Johnson v. Duckworth, [793 F2d 898 (7th Cir. 1986)]. We prefer to examine the facts of each case and grant relief where there is at least an inference from the evidence that the defendant would have accepted the offer as made or something similar. Such an inference could be drawn even where the evidence is disputed or unclear on this question.” (Footnote omitted.) Lloyd, 258 Ga. at 648 (2b).

Although this case involves counsel’s failure to advise his client regarding the consequences of rejecting a plea rather than failure to communicate a plea, the Lloyd analysis controls our decision. In Lloyd, an evidentiary hearing yielded “the unmistakable conclusion that [the defendant] would not have accepted or even considered the offer to plead guilty to [a lesser crime],” 258 Ga. at 648-649; thus, counsel’s unprofessional error did not affect the result. Here, however, there has been no evidentiary hearing because defendant’s first opportunity to raise the issue was on appeal. The proper procedure in such a case is to remand to the trial court for an evidentiary hearing on the issue of ineffective assistance of counsel. See Lloyd, 258 Ga. at 645, n. 1; Weems v. State, 196 Ga. App. 429 (3) (395 SE2d 863) (1990). We therefore remand to allow the trial court to hear evidence and make appropriate findings regarding whether it may be inferred that defendant would have accepted any offers the State made or something similar.

Judgment affirmed and case remanded with direction.

Birdsong, P. J., and Andrews, J., concur.

Thomas J. Matthews, Assistant District Attorneys, for appellee.


author: Andrews, Judge.

text:
    A93A1158.
    AHMED AL-BETI v. THE STATE.
    (436 SE2d 50)
   Andrews, Judge.

Ahmed Al-Beti was convicted by a jury of five counts of child molestation for sexual acts committed against his ten-year-old stepdaughter.

1. Appellant claims the evidence was insufficient to support the convictions. The victim, who lived with her mother and appellant, gave testimony describing sexual acts committed against her as charged in the indictment. The State also produced testimony from a psychologist specializing in child sexual abuse cases, and from a police investigator in the sex crimes unit, who both recounted their interviews with the victim in which the child described in detail the acts of molestation charged in the indictment. Although appellant denied the charges, and the victim’s mother testified that the child had denied being molested, “the credibility of witnesses and the resolution of such conflicts are for the jury. On appeal of a conviction based on a jury verdict, this court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to that verdict.” (Citations and punctuation omitted.) Self v. State, 208 Ga. App. 447, 448 (3) (431 SE2d 126) (1993). The evidence was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant claims reversible error occurred because the prosecutor failed to provide him with a complete copy of his in-custody statement as required by OCGA § 17-7-210. The record reflects that in response to appellant’s request pursuant to OCGA § 17-7-210, the State provided appellant with his statement as set out in the investigating officer’s report, which indicated appellant said “he used to have feelings for his daughter, but now he doesn’t have any feelings for her what so ever.” At trial, the investigating officer testified on direct examination that appellant said: “He used to have feelings for his daughter, but he doesn’t have any feelings for her anymore since she told.” The defense made no objection to the added phrase, but instead cross-examined the investigator in the presence of the jury as to why his oral, testimony regarding appellant’s statement added “since she told” to the written summary of appellant’s statement. Under defense cross-examination, the investigator stated that even though “since she told” was not included in his written summary of the statement, his oral testimony was what he remembered appellant actually stated. He testified that the added phrase appeared to have been deleted from the report he prepared from his notes, and admitted that his memory was fresher when he wrote the report.

There is no evidence that the State suppressed or failed to provide any portion of the appellant’s statement of which it was aware. Nevertheless, OCGA § 17-7-210 will be applied to exclude an incriminating or inculpatory portion of such statement when not provided upon proper request even though the prosecutor may not have been aware of it. Talley v. State, 251 Ga. 42 (302 SE2d 355) (1983). After the defense cross-examined the investigator regarding the statement, appellant moved for a mistrial, which the trial court denied as untimely. Assuming the deleted phrase was inculpatory on its face and within the purview of OCGA § 17-7-210, the defense, without objection, cross-examined the investigator in an effort to discredit his recall of the appellant’s statement, and later moved for a mistrial. The failure to object or move for a mistrial when the testimony was introduced was a waiver of this claim. Huguley v. State, 253 Ga. 709, 710 (324 SE2d 729) (1985); Johnson v. State, 191 Ga. App. 845 (383 SE2d 346) (1989). Moreover, even if there had been no waiver, and the added phrase should have been excluded, it was highly probable, based on the present record, that any such error did not contribute to the verdict. Wallin v. State, 248 Ga. 29, 32 (279 SE2d 687) (1981); Talley, supra at 43. Appellant’s claim that he was denied a JacksonDenno hearing on the statement was similarly waived by the failure to timely object, move for a mistrial, or request such a hearing. Smith v. State, 258 Ga. 676, 678-679 (373 SE2d 200) (1988).

3. Appellant contends the State withheld exculpatory evidence he sought pursuant to a pre-trial written request under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). During the State’s case-in-chief the trial court required the State to give the defense the investigator’s complete report, which revealed to the defense for the first time that the victim had initially told the investigator that the appellant “never touched me sexually.” After discovering this statement by the victim in the report, defense counsel moved for a mistrial on the basis that the prosecutor had suppressed exculpatory evidence in violation of Brady. At the time this evidence was discovered,- the investigator was still under cross-examination by defense counsel, and the trial court ruled that the defense would be allowed to recall the victim for further cross-examination.

“Brady is not violated when the Brady material is available to defendants during trial.” (Citations and punctuation omitted.) Castell v. State, 250 Ga. 776, 781 (301 SE2d 234) (1983). Since the exculpatory statement was provided during the trial, and the defense had the opportunity to confront the witnesses with this evidence, appellant was not deprived a fair trial by the delayed disclosure. Id. at 781. Moreover, the record makes clear that after colloquy with the trial judge concerning further cross-examination of the victim, defense counsel abandoned the mistrial motion.

Decided September 17, 1993

Reconsideration dismissed November 22, 1993.

Tony L. Axam, for appellant.

Daniel J. Porter, District Attorney, Brenda J. Bernstein, Assistant District Attorney, for appellee.

4. In his fourth enumeration of error, appellant contends that the failure of the State to provide the defense with requested Brady material prior to trial, impaired defense counsel’s ability to prepare for trial, and, as a result, infringed his Sixth Amendment right to confront and cross-examine the witnesses against him, and denied him a fair trial. Appellant does not claim that trial counsel was ineffective. The discovery of the victim’s exculpatory statement during the trial, as discussed in Division 3, did not impair appellant’s rights under the Confrontation Clause of the Sixth Amendment, or deprive him of a fair trial.

5. There was no error in the trial court’s refusal to grant defense counsel’s motions for a mistrial. See Divisions 2 and 3.

6. Lastly, appellant claims the trial court erred in denying his motion for a new trial based on newly discovered evidence that after the trial the victim recanted her testimony against the appellant. Evidence that the victim claimed after the trial that she lied when she testified that appellant molested her is not a ground for a new trial on the basis of newly discovered evidence. Karvonen v. State, 205 Ga. App. 852 (424 SE2d 47) (1992).

Judgment affirmed.

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


text:
    A93A1214.
    RYLEE v. THE STATE.
    (436 SE2d 52)
   Pope, Chief Judge.

Defendant was convicted by a jury of driving while under the influence of alcohol to the extent that it was less safe for him to drive. (OCGA § 40-6-391 (a) (1).) He appeals following the denial of his motion for new trial.

Trooper Melvin Dukes of the Georgia State Patrol testified that in May 1991 he stopped defendant’s pickup truck because of a cracked windshield and an obscured license tag. When Dukes approached the defendant’s window to ask for his license and proof of insurance, he detected the odor of alcohol. Defendant appeared nervous, his face was flushed and his eyes were bloodshot. When Dukes asked defendant if he had been drinking, defendant admitted that he had just finished a can of beer. Dukes then administered three field sobriety tests — a one-legged stand test, a horizontal-gaze nystagmus test and an alcosensor test — and determined that defendant was unsteady on his feet, that his eye movement was jerky and that alcohol was present in his breath. Based on his training and experience, Dukes concluded that defendant had consumed alcohol to the point that he was a less safe driver than he would have been had he not consumed the alcohol. Thirty-six minutes after defendant’s arrest, an intoximeter test showed a blood-alcohol level of .10 grams. Six minutes later, a second test requested by defendant showed a level of .09. In his defense, defendant testified that his eyes may have been bloodshot and his face may have been flushed because he had been exposed to paint fumes in a body shop for several hours earlier that day and that he was unsteady on his feet due to arthritis. He acknowledged that he had two beers in the hour or so before his arrest, including the one he finished just before Trooper Dukes stopped him, but he insisted that the beers did not make him a less safe driver.

In his sole enumeration of error, defendant argues that the evidence was insufficient to support his conviction. However, this court has rejected challenges to the sufficiency of the evidence in similar cases in which the initial stop of the defendant was not for unsafe driving. See Hurd v. State, 201 Ga. App. 373 (411 SE2d 111) (1991) (evidence sufficient where officer detected odor of alcohol, defendant’s eyes were red, alcosensor test showed presence of alcohol in breath, intoximeter test 30 minutes after stop registered .10 and officer opined that defendant acted like he was under the influence); Campbell v. State, 189 Ga. App. 303 (375 SE2d 654) (1988) (evidence sufficient where officer detected odor of alcohol, defendant’s eyes were bloodshot, defendant was unsteady on his feet and intoximeter test registered .10 grams); see also Moss v. State, 194 Ga. App. 181 (390 SE2d 268) (1990) (to show defendant was under the influence of alcohol to extent he was a less safe driver, it is not necessary to show he actually committed an unsafe act). Indeed, the evidence in this case is stronger than that in Campbell, for unlike Trooper Dukes in this case, the arresting officer in Campbell said he did not know whether the defendant was a less safe driver as a result of his drinking. See Campbell, 189 Ga. App. at 305 (Pope, J., dissenting). Here, Dukes detected the odor of alcohol; the defendant’s eyes were bloodshot; the defendant was flushed and nervous; the defendant failed three field sobriety tests; the defendant admitted he had two cans of beer in the hour or so before he was stopped; his first intoximeter test registered .10 grams; and the officer, based on his training and experience, made a fact-based determination that defendant was a less safe driver due to his drinking. Although the second intoximeter test may show the fallibility of the first, it does not negate it or render it inadmissible. Cf. Ussery v. State, 195 Ga. App. 394 (1, 2) (393 SE2d 522) (1990) (where there are two intoximeter tests, both are admissible and jury may base its verdict on either or both). Accordingly, we must conclude that, viewed in the light most favorable to the verdict, the evidence was sufficient to allow a rational jury to find defendant guilty of driving under the influence to the extent he was a less safe driver beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided September 17, 1993.

Donna L. Avans, for appellant.

Donald E. Moore, Solicitor, for appellee.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A93A1491.
    STANFIELD v. KIME PLUS, INC.
    (436 SE2d 54)
   Smith, Judge.

Ophelia Stanfield filed suit against Kime Plus, Inc., a cleaning contractor at Fort Stewart, to recover damages for personal injuries incurred when she slipped and fell on the premises of the mess hall at the post. At trial, Kime Plus moved for a directed verdict at the close of Stanfield’s case-in-chief and again at the close of all evidence, and both times the trial court reserved ruling on the motion. The jury returned a verdict in favor of Stanfield for $36,669. Because no ruling had been made on the motions for directed verdict, the trial court entered judgment on the jury’s verdict and treated the pending motions for directed verdict as a motion for j.n.o.v., which the court then granted. See Anaya v. Brooks Auto Parts, 203 Ga. App. 485 (1) (417 SE2d 423) (1992).

The record reveals that Stanfield and her daughter-in-law, Yvonne, had come to the mess hall after the noon meal to pick up Stanfield’s son, who worked as a cook. Yvonne testified that she did so routinely, and had often observed that the floors were being cleaned at that hour. On those occasions, the front doors were locked with a chain to prevent entry, requiring her to enter the hall through a side door. This time, because the front doors were not chained, it did not occur to her that the floors were being cleaned. Yvonne preceded Stanfield into the vestibule, and had opened the inner glass door to proceed further when Stanfield slipped and fell. Yvonne testified that a woman immediately came up and apologized for not locking the door.

Patricia Furman, a shift leader for Kime Plus, testified she was stripping wax off the floor in the entryway when Stanfield and Yvonne arrived. She testified she had applied a stripping solution to the floor and left to get fresh water, having propped the inner door open with a yellow bucket on which appeared the warning: “CAUTION WET FLOOR.” Furman’s testimony was corroborated by Kelly Mae Adams, a Kime Plus employee who was helping her clean the floor. Each testified the stripping solution was easily detectable on the floor, by its appearance as well as by its strong odor. Their testimony conflicted with that of Stanfield, who denied seeing a bucket, denied seeing anything on the floor and said the floor just looked “like it was waxed.” Yvonne testified she had seen nothing on the floor before Stanfield slipped, but afterwards she noticed a “creamy looking” substance. She also testified she observed a mop bucket “a good ways” down the hall.

Stanfield contends the evidence supports the jury’s verdict in her favor, and consequently, the trial court erred in granting j.n.o.v. in favor of Kime Plus.

Stanfield’s presence on the premises was purely for her own benefit, and did not benefit Kime Plus in any way, and it is undisputed that her legal status was that of a licensee on the premises. OCGA § 51-3-2 (a); Brown v. Clay, 166 Ga. App. 694, 695 (305 SE2d 367) (1983). The parties so stipulated. The only duty owed to her by Kime Plus, therefore, was to refrain from “willful or wanton” injury, from deliberate acts or omissions and those that warrant an inference of conscious indifference to consequences. OCGA § 51-3-2 (b); Edmunds v. Copeland, 197 Ga. App. 292, 294 (398 SE2d 280) (1990). To support a verdict in her favor, Stanfield was required to present evidence of wilful and wanton behavior on the part of Kime Plus. This she did not do. As argued by Stanfield, questions of fact indeed may have existed regarding the presence of the yellow bucket with the warning and the visibility of the stripping solution. Regardless of how these fact questions might have been resolved, though, none of the evidence may reasonably be construed as showing acts or omissions of a deliberate nature attributable to Kime Plus, nor does the evidence in any way support a reasonable inference of Kime Plus’s conscious indifference to consequences.

The standard for granting j.n.o.v. is the same as that for the award of a directed verdict. Morris v. Futch, 193 Ga. App. 132, 133 (1) (386 SE2d 905) (1989). It should be granted when “there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” OCGA § 9-11-50 (a). As no evidence showed that the injury was the result of the wilful and wanton conduct of Kime Plus, a judgment in favor of Kime Plus was demanded. “Where a verdiet for a party is demanded as a matter of law and the jury has returned an adverse verdict, the grant of a judgment n.o.v. is not error. [Cit.]” Jamison v. First Ga. Bank, 193 Ga. App. 219, 224 (3) (387 SE2d 375) (1989).

Decided September 17, 1993.

Jones, Osteen, Jones & Arnold, G. Brinson Williams, Jr., for appellant.

Barrow, Sims, Morrow & Lee, Jordan D. Morrow, for appellee.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A1659.
    ALLSTATE INSURANCE COMPANY v. REYNOLDS.
    (436 SE2d 56)
   Birdsong, Presiding Judge.

We granted this discretionary appeal to consider the trial court’s award of attorney fees under OCGA § 9-15-14 against Allstate Insurance Company in a tort action brought by Emma L. Reynolds against two of Allstate’s insureds. Allstate, however, was not a party to the action.

The trial court found that Allstate refused to increase its offer to settle for $8,000 or to approve settlement offers for $11,000, which were made prior to and during trial and were within the policy limits, even though the defendant/driver had pled guilty to failing to yield the right-of-way in the criminal charges arising from the accident and the other defendant/insured admitted he had testified falsely in the trial. After the jury returned a verdict for $15,000, a sum within the policy limits, the trial court entered judgment in that amount and granted Reynolds’ motion for the award of attorney fees of $5,000 under OCGA § 9-15-14 against Allstate because the court found liability was clear, there was no genuine or justiciable issue regarding the damages Reynolds had suffered, Allstate substantially controlled the litigation and refused to approve the settlement, the defendants continued to defend the case without substantial justification, and imposed defenses for purposes of delay or harassment. Nevertheless, the trial court refused Reynolds’ request to hold the defendants or their attorney liable for the attorney fees or litigation costs.

Allstate contends that OCGA § 9-15-14 does not authorize the award against non-parties. Held:

In OCGA § 9-15-14 the legislature specifically authorized award of litigation costs and attorney fees against parties and parties’ attorneys, and no others. See OCGA § 9-15-14 (a), (b), and (c). We must interpret the section according to the natural and most obvious import of its language without resorting to subtle and forced construction for the purpose of either limiting or extending its operation. Burbridge v. Hensley, 194 Ga. App. 523, 524 (391 SE2d 5). Therefore, we are not authorized to increase the scope of the section to non-parties, and we have so held previously. Steven E. Marshall, Builder v. Scherer, 206 Ga. App. 156 (424 SE2d 841); Watkins v. M & M Clays, Inc., 199 Ga. App. 54, 57 (404 SE2d 141).

Decided September 17, 1993.

Walker, Hulbert, Gray & Byrd, Michael G. Gray, for appellant.

Mathis, Jordan & Adams, Charles A. Mathis, Jr., Shelley S. Howard, for appellee.

If the provisions of OCGA § 9-15-14 are to be extended to non-parties, the legislature must do it, not this court. Therefore, as Allstate was not a party to the action, the trial court erred by ordering Allstate to pay attorney fees.

Judgment reversed.

Pope, C. J., and Andrews, J., concur.


author: Cooper, Judge.

text:
    A93A0948, A93A0949.
    THE STATE v. BRYANT (two cases).
    (436 SE2d 57)
   Cooper, Judge.

Dale Bryant and Terry Bryant were charged with violating the Georgia Controlled Substances Act by possessing cocaine with the intent to distribute. They moved to suppress evidence seized during a search of Dale Bryant’s apartment. The trial court granted the motion, and the State appeals.

Officer Michelle Scott obtained a search warrant for Dale Bryant’s apartment based on a tip from an informant. In her affidavit in support of the search warrant, she stated that “[o]ver the past couple of weeks, affiant has received numerous telephone calls . . . from a confidential and reliable informant. The confidential and reliable informant told affiant that Dale Bryant was dealing cocaine from his residence and that Dale Bryant had in his possession a large quantity of cocaine and a large quantity of marijuana within the past 72 hours.” The affiant went on to state that the informant told affiant Dale Bryant’s address and described his vehicle and tag number and that the information regarding his address and vehicle was independently corroborated. The affiant also stated that the informant described Dale Bryant’s physical appearance and told her where Dale Bryant banked and this information was also independently confirmed. Lastly, the affiant stated that her office had received another complaint naming Dale Bryant as a drug dealer but did not identify the source of the complaint. The trial court granted the motion to suppress, ruling that the search warrant lacked probable cause because the affidavit did not set forth sufficient facts from which the magistrate could independently determine the reliability of the information and the informant. In its sole enumeration of error, the State contends that this ruling was erroneous.

“ ‘Under the standard set forth by the United States Supreme Court in Illinois v. Gates, (462) U. S. (213) (103 SC 2317, 76 LE2d 527) (1983), probable cause may be predicated on an informant’s tip only if, under the “totality of the circumstances,” including the “veracity” and “basis of knowledge” of the informant, there is a “fair probability” that contraband or evidence of a crime will be found in a particular place. [Cit.]’ [Cit.]” Salter v. State, 198 Ga. App. 242, 243 (1) (401 SE2d 541) (1990). While establishment of the informant’s veracity and basis of knowledge is no longer an absolute requirement since Gates, veracity and basis of knowledge are still major considerations in the probable cause analysis, and this court continues to hold that “[a]n affidavit submitted in support of a search warrant must ‘ “set forth sufficient facts from which the magistrate or judge can independently determine the reliability of both the information and the informant.” ’ [Cit.]” State v. Teague, 192 Ga. App. 839, 840 (386 SE2d 718) (1989). Officer Scott’s affidavit in this case provided no factual information regarding the informant’s veracity or basis of knowledge; she did not, for example, state that the informant was known to her, that he had provided useful information in the past, or that his information came from personal knowledge. Compare State v. McKendree, 188 Ga. App. 290 (372 SE2d 673) (1988). Although Officer Scott testified at the hearing on the motion to suppress that she met with the informant and observed him coming out of Dale Bryant’s apartment, the State failed to establish that she communicated this information to the magistrate. Moreover, even if these additional facts were considered, they would not be sufficient to allow the magistrate to independently evaluate the reliability of the informant and his information. See Teague, supra (affidavit insufficient even though it related that informant’s information was based on personal observation and that informant had truthful demeanor). “The complete lack of information about the informant and the basis of his knowledge relegated the information he supplied to the status of rumor.” State v. Brown, 186 Ga. App. 155, 158 (2) (366 SE2d 816) (1988). Furthermore, the fact that the rumor was consistent with a second complaint about Dale Bryant could not turn the rumor into reliable information since there were no facts in the affidavit from which the second complaint or complainant could be deemed reliable either. See Polke v. State, 203 Ga. App. 306 (1) (417 SE2d 22) (1992).

Decided September 20, 1993.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellant.

Jack J. Menendez, for appellees.

Of course, even if an officer cannot provide information regarding the veracity of an informant or the basis of his knowledge, a tip may be proved reliable enough to provide probable cause if portions of the tip are sufficiently corroborated. See Gates, supra. In order for the corroboration to be meaningful enough to show reliability, however, the information corroborated must include “a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.” Id. at 245. In short, the information corroborated will generally need to be a prediction of future behavior, as in Gates, or something similar — that is, inside information not available to the general public. See Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990); Weaver v. State, 208 Ga. App. 105, 107 (430 SE2d 60) (1993). See also State v. Stephens, 252 Ga. 181, 184 (311 SE2d 823) (1984). (“Prudence counsels that Gates be considered as the outer limit of probable cause.”) In this case, the officer “corroborated” descriptions of Dale Bryant, where he lived, his car, and his bank. As all of this information would be available to the general public, the corroboration in this case is not sufficiently meaningful to show reliability. See Teague, supra.

Accordingly, we are left with only the conclusory statements of the affiant officer regarding the reliability of the informant and his information that Dale Bryant had a large quantity of drugs in his apartment. Considering all the circumstances, we must conclude that the phone tip was not sufficient to establish a “fair probability” that drugs would be found in the apartment and that the trial court properly granted appellees’ motion to suppress.

Judgments affirmed.

Beasley, P. J., and Smith, J., concur.


author: Beasley, Presiding Judge.

text:
    A93A2246.
    FERRY v. THE STATE.
    (436 SE2d 59)
   Beasley, Presiding Judge.

Defendant Ferry files this separate appeal from the denial of his motion for supersedeas bond, which is governed by OCGA § 17-6-1 and particularly subsections (e) and (g), following his conviction of two counts of child molestation. OCGA § 16-6-4 (a). He was sentenced under subsection (b) to two fifteen-year concurrent sentences, to serve five years in prison and ten years on probation. He has moved this court for expedited consideration, and it is granted. See Bagby v. State, 176 Ga. App. 51 (335 SE2d 305) (1985). Note also that the appeal was expedited in Birge v. State, 238 Ga. 88 (230 SE2d 895) (1976): the denial of bond was November 2, and both appellate courts had ruled by December 6.

1. Ferry filed his notice of appeal of the denial of bond on June 11, 1993, following the trial court’s oral pronouncement on June 3, that it would be denied, but prior to the memorialization of the ruling by written order filed on June 25. In the context of a pending motion for new trial, “premature filing is not a ground of dismissal in criminal cases, at least insofar as a criminal defendant is concerned. [Cit.]” Shirley v. State, 188 Ga. App. 357, 358 (1) (373 SE2d 257) (1988). Likewise in this context, premature filing will not be deemed ground for dismissal.

2. As to the merits, Bagby differs. At the bond hearing in that case, the State failed to present any evidence at all, and the court’s articulated basis for denial, that Bagby had been a “major target of the undercover drug investigation that was going on in Dawson County at the time he was arrested” was without support in the record.

In Ferry’s case, the State, on direct examination of the victim’s mother (defendant is the mother’s great-uncle), testified that during the time the case was pending trial, defendant and his wife would drive by the victim’s home, “slow down,” and “stick their tongue out, smile, wave, make faces at the children out in the yard playing.” This conduct, which continued for about three months, was reported to the police. In denying bond, the trial court stated that the people involved lived fairly close together and it was concerned that there would be further trouble in the future. This demonstrated a potential intimidation of witnesses, especially in the context of the nature of the crimes of which defendant Ferry was convicted, and was a valid reason for denying bond as measured by the standard established in Birge, supra at 90, and OCGA § 17-6-1 (e). Compare Lipsey v. State, 170 Ga. App. 212 (316 SE2d 774) (1984), where there was no evidence that appellant himself might intimidate witnesses or otherwise interfere with the administration of justice. Defendant did not, as a matter of law, carry his burden, Pressel v. State, 161 Ga. App. 488 (287 SE2d 780) (1982), and thus we cannot conclude that the court abused the discretion vested by OCGA § 17-6-1 (g).

Motion to expedite pursuant to Court of Appeals Rule 50 (c) granted. Judgment of denial of supersedeas bond affirmed.

Cooper and Smith, JJ., concur.

Decided September 20, 1993.

Vinson, Osborne, Talley & Richardson, James G. Richardson, for appellant.

George C. Turner, Jr., District Attorney, James E. Barker, Assistant District Attorney, for appellee.