text:
    A92A1675.
    KOLB et al. v. HOLMES.
    (427 SE2d 562)
   Birdsong, Presiding Judge.

Anton and Irene Kolb appeal from a jury verdict and judgment in favor of plaintiff Brigitte Holmes, for $67,500 plus $14,000 interest, plus costs. Appellants bought a house from Mrs. Kolb’s nephew, Lee Holmes, pursuant to an oral agreement. According to appellants’ assertion in their appellate brief, the agreed price was the amount of the mortgage, $106,408.39, and it came to light at the closing that ownership was not in Lee Holmes’ name but was in the name of his former wife, Brigitte Holmes. Brigitte Holmes agreed to enforce the sale. Appellants assert they never saw an appraisal before they bought the house and that there was no agreement to pay Mrs. Holmes additional money.

Appellee Brigitte Holmes showed evidence that appellants did see the appraisal (at $180,400) prior to closing; that she and they agreed on a fair market value of $181,000; and that there was an oral agreement to pay her $67,500, representing her equity in the house. Following appellants’ refusal to pay Mrs. Holmes the additional amount, she filed this suit.

The Kolbs filed a motion in limine pursuant to OCGA § 13-5-30 to prevent evidence of an oral agreement that they would pay Mrs. Holmes an additional sum. They also sought to prevent evidence of their financial condition, including the fact that they had won six million dollars in the Illinois lottery. Held:

1. Evidence of the oral agreement between appellants and Mrs. Holmes was not inadmissible as contravening the statute of frauds, OCGA § 13-5-30. This agreement was excepted from OCGA § 13-5-30, since the agreement to sell had been fully executed by Mrs. Holmes’ conveying the house to appellants based on that oral agreement (OCGA § 13-5-31 (2)); and with the conveyance of the house there was “such part performance of the contract as would render it a fraud of the party refusing to comply if the court did not compel a performance.” OCGA § 13-5-31 (3). The purpose of the statute of frauds is to prevent frauds and perjuries incident to the admission of parol testimony (Turner v. Lorillard Co., 100 Ga. 645, 650 (2) (28 SE 383)), but obviously where the parties agree to enforcement of the agreement, OCGA § 13-5-30 provides no basis to allow a party to enforce part of an oral agreement while refusing to perform the whole agreement (see Stringer v. Stringer, 93 Ga. 320 (20 SE 242)), and OCGA § 13-5-31 provides specific exceptions to the statute of frauds on that basis.

This agreement to pay Mrs. Holmes for her equity in the house was obviously part of the full oral agreement for appellee’s sale of the house to appellants. The Kolbs, in effect, sought to enforce an oral agreement for purchase of the house for $107,000, while denying Mrs. Holmes the right to enforce the part of the agreement which called for them to pay her for her equity in the house. According to OCGA § 13-5-31, the Kolbs have no right to assert § 13-5-30 to prevent proof of this part of the parties’ agreement.

2. Appellants complain of the admission of evidence of their wealth. The rule generally is that the law favors admissibility of any relevant evidence, however slight its probative value. Daras v. State, 201 Ga. App. 512, 513 (411 SE2d 367). We cannot say this evidence was without relevance. Inasmuch as Mrs. Holmes retained no security interest and had no written evidence of an additional indebtedness for her equity in the house, a question arises as to why she would rely on an oral promise to pay such a large sum; the jury might resolve the issues by determining the likelihood or reasonableness of appellants’ having agreed to pay Holmes for her equity in the house, according to their ability to perform. See Estfan v. Poole, 193 Ga. App. 507, 510 (3) (388 SE2d 373). Evidence is relevant if, either directly or indirectly, it tends to illustrate or explain the issue, or aids the jury in arriving at the truth. Yelverton v. State, 199 Ga. App. 41, 42 (403 SE2d 816). While generally the wealth of the parties is utterly irrelevant, the relevance of this evidence is demonstrated by the fact that if the Kolbs were very poor, and well known to be poor, they themselves might legitimately have sought to admit that evidence to show the unreasonableness of their having made a promise to pay Brigitte Holmes an additional $67,500. Likewise, the evidence as to their great wealth may tend to prove the reasonableness of the Kolbs’ promise to pay Holmes for her equity in the house not only as compensation for property conveyed but to induce her to go along with her former husband’s oral agreement for the sale of the property. Moreover, in the circumstances of this case, where the Kolbs were allowed to enforce an oral agreement for the sale, it may have been unfair to exclude the evidence of their great wealth and hence their ability to perform the entire oral agreement for compensation. In circumstances where there is any relevance of such evidence, however slight, the rich should not have the benefit of an evidentiary ruling denied to the poor. Questions as to admissibility of evidence are vested in the trial court; unless the trial court abused its discretion, we will not interfere, especially in view of the rule favoring admissibility of evidence to discover the truth. Estfan, supra at 510-511. The admission of evidence as to appellants’ financial condition was not error.

Decided January 29, 1993.

McDonald, Kinnamon & Thames, Gregory H. Kinnamon, for appellants.

Minor, Bell & Neal, Rickie L. Brown, Robert D. Jenkins, for appellee.

3. It follows that the trial court did not err in denying appellants’ motion for new trial.

Judgment affirmed. Beasley and Andrews, JJ., concur.


source: Caselaw Access Project

author: Carley, Presiding Judge.

license: Public Domain

text:
    A92A1939.
    In the Interest of G. T. S., a child.
    (427 SE2d 572)
    Decided January 29, 1993.

      McGee & McGee, J. B. McGee, Jr., for appellant.

      Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Teresa E. Lazzaroni, Staff Attorneys, Michael D. Devane, for appellee.
   Carley, Presiding Judge.

Appellant appeals from an order of the juvenile court terminating her parental rights in her minor child.

1. “ ‘The appropriate standard of appellate review in a case of this sort is whether after reviewing the evidence in the light most favorable to the [judgment of the juvenile court], any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost. . . . The factfinding and weighing of evidence is to be done in the [juvenile] court under the clear and convincing evidence test. The reviewing court is to defer to the [juvenile] court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test. . ., is not met. When we apply that test here we note the conflicting evidence presented to the [juvenile] court and conclude that a rational factfinder could have found by clear and convincing evidence ([present] parental . . . inability [which is likely to go unremedied, as is required] by OCGA § 15-11-81 (b))’ . . . [Cit.]” In the Interest of S. T., 201 Ga. App. 37, 40 (4) (410 SE2d 312) (1991). See also In the Interest of J. I. H., 191 Ga. App. 848, 850 (3) (383 SE2d 349) (1989); In the Interest of S. G. & T. G., 182 Ga. App. 95, 101 (354 SE2d 640) (1987). Compare Chancey v. Dept. of Human Resources, 156 Ga. App. 338 (1) (274 SE2d 728) (1980); R. C. N. v. State of Ga., 141 Ga. App. 490, 492 (233 SE2d 866) (1977). The general grounds are without merit.

2. Appellant’s remaining enumeration of error is moot.

Judgment affirmed. Pope, C. J., and Johnson, J., concur.


text:
    A92A1953.
    ANDERSON v. THE STATE.
    (427 SE2d 564)
   Carley, Presiding Judge.

Appellant was tried before a jury on an indictment charging him with armed robbery. He was found guilty and appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

Decided January 29, 1993.

John H. Tarpley, for appellant.

1. The trial court charged on robbery as defined in OCGA § 16-8-40 (a) (2) and on theft by taking as lesser included offenses of armed robbery. After this recharge, a juror asked whether “robbery” could be defined as the commission of a “theft with intimidation.” In an apparent attempt to demonstrate that the crime of “robbery” could encompass a broader range of proscribed conduct than merely the commission of a “theft with intimidation,” the trial court responded to the juror’s inquiry by recharging on both armed robbery and robbery as defined in OCGA § 16-8-40 (a) (2) and by emphasizing the alternative methods by which those types of “robbery” could be committed.

On appeal, appellant urges that this recharge was not responsive to the juror’s inquiry. However, the recharge was directly responsive to the juror’s inquiry, insofar as it correctly instructed that the crime of “robbery” was not necessarily limited to the commission of a “theft with intimidation,” but that it also included the commission of a theft by other means. Moreover, the trial court asked whether the recharge had made “it clear” for the juror and the juror gave an unqualified affirmative response to the trial court. “The recharge of the trial court answered the questions posed by the jurors. [Cit.] . . . Examining the recharge and the original charge in toto, we find that the recharging did not overemphasize [any] principle, and ran no fair risk of misleading the jury.” Taylor v. State, 195 Ga. App. 314, 315 (1, 2) (393 SE2d 690) (1990).

2. After the recharge discussed in Division 1, another juror asked for “[a] clarification of the word [‘intent’].” On appeal, appellant urges that the trial court’s response to this inquiry was erroneously “inappropriate.”

Intent was not a disputed issue in the instant case. By his own testimony, appellant admitted that he had taken the property with the requisite intent of stealing it. His only “defense” was that, contrary to the victim’s testimony, he had not employed a weapon, intimidation, threats or coercion in doing so. Thus, the only contested issue was whether appellant was guilty of armed robbery, robbery as defined in OCGA § 16-8-40 (a) (2) or, as his own counsel urged in closing argument, guilty of theft by taking. Since intent to commit a theft was not in dispute, error, if any, in the trial court’s response to the juror’s request for clarification of that issue would be harmless. See Burton v. State, 256 Ga. 690, 691 (2) (353 SE2d 180) (1987).

Judgment affirmed. Pope, C. J., and Johnson, J., concur.

Robert E. Wilson, District Attorney, Stacy Y. Cole, Barbara B. Conroy, Robert W. Houman, Assistant District Attorneys, for appellee.


text:
    A92A2015.
    PURVIS v. TOOLE.
    (427 SE2d 565)
   Carley, Presiding Judge.

Appellant-plaintiff brought suit, seeking to recover for injuries allegedly sustained in an automobile collision. In appellee-defendant’s answer, she admitted that she caused the collision, but denied that appellant had been injured therein. The case was tried before a jury and a verdict in favor of appellee was returned. Appellant appeals from the judgment entered by the trial court on that defense verdict.

1. Relying on Cochran v. Lynch, 126 Ga. App. 866 (192 SE2d 165) (1972), appellant enumerates the general grounds.

Appellant’s reliance upon Cochran v. Lynch, supra, is misplaced. “The distinction lies in the fact that in Cochran only the plaintiff and her doctor testified as to the extent of her injuries and their testimony was contradicted by neither testimony nor circumstances. In other words, the evidence there demanded a finding that the plaintiff was injured to some extent; if she was injured the causal chain was unbroken. Here [appellant] is indeed injured but the question is whether she was injured by the collision. Opposing medical testimony and the intervening time support the negative inferences which the jury must have drawn from the evidence, and this alone is enough to preclude this court from reversing.” (Emphasis in original.) Davis v. McCray, 127 Ga. App. 281, 282 (193 SE2d 200) (1972). In light of this and additional evidence adduced by appellee regarding the source of appellant’s injuries, it cannot be said that the jury arbitrarily discounted the testimony of appellant or the opinion of her expert. Accordingly, the general grounds have no merit. See Hansen v. White, 190 Ga. App. 596 (1) (379 SE2d 536) (1989).

2. The trial court did not err in charging the jury in accordance with appellee’s defensive contentions. See Hughes v. Newell, 152 Ga. App. 618, 619 (2) (263 SE2d 505) (1979).

3. During closing argument, appellee’s counsel expressed an impermissible personal opinion regarding the veracity and credibility of appellant’s experts. Appellant objected and requested curative instructions and a rebuke of appellee’s counsel. In the presence of the jury, appellee’s counsel promptly withdrew the comment and the trial court then instructed him to “stay away” from the topic. See Futch v. State, 137 Ga. 75, 80-81 (72 SE 911) (1911). Compare All Risk Ins. Agency v. Southern Bell Tel. &c. Co., 182 Ga. App. 190, 193 (355 SE2d 465) (1987) (wherein the jury was not present). On appeal, appellant urges that the trial court’s response to the improper argument was inadequate.

Decided January 29, 1993.

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

Robert S. Slocumb, Bonnie K. Cole, for appellee.

“Whether the court takes sufficient steps to remove the improper matter from the mind of the jury is frequently a question of degree to be decided under the circumstances of the case.” Howard v. Renfroe, 93 Ga. App. 59, 62 (4) (90 SE2d 598) (1955). Under the circumstances of the instant case, we cannot say that the trial court’s response to the improper argument was so inadequate as to require the grant of a new trial. See Georgia Life Ins. Co. v. Hanvey, 143 Ga. 786 (3) (85 SE 1036) (1915).

Judgment affirmed. Pope, C. J., and Johnson, J., concur.


text:
    A92A2042.
    JACKSON v. THE STATE.
    (427 SE2d 566)
   Carley, Presiding Judge.

Appellant was indicted for possession of cocaine with intent to distribute. Having been tried before a jury and found guilty of simple possession, he appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Pursuant to an OCGA § 17-7-210 motion, the State provided the following summary of appellant’s oral custodial statement: “[Appellant] claimed ownership of the drugs seized.” At trial, the investigating officer testified to the seizure of cocaine and marijuana from appellant’s automobile and to the following: “[Appellant] then said that it’s mine, that it was his, and he also stated that the marijuana was his. He said that he didn’t have it to sell. He stated that he was a drug user, not a seller.” (Emphasis supplied.) The trial court’s admission of this testimony is enumerated as error.

The unemphasized portion of the officer’s testimony comports with the statement attributed to appellant in the disclosure made by the State pursuant to the OCGA § 17-7-210 motion. In the disclosed statement, appellant was said to have “claimed ownership of the drugs seized.” In the officer’s testimony, appellant was said to have stated that the seized cocaine and marijuana were his. Thus, insofar as appellant’s ownership of the contraband is concerned, the State’s disclosure “was sufficiently complete to satisfy the requirements of OCGA § 17-7-210. [Cit.]” Todd v. State, 261 Ga. 766, 771 (6) (410 SE2d 725) (1991).

Decided January 29, 1993.

J. Robert Joiner, for appéllant.

The emphasized portion of the officer’s testimony did not attribute to appellant a statement which was incriminating or inculpatory. Having already admitted ownership of the contraband, appellant’s further statement that he was a user rather than a seller of drugs was in the nature of an exculpatory or mitigating explanation. This is amply demonstrated by the fact that, although appellant had been indicted for possession with intent to distribute, he was found guilty merely of simple possession. “Statements that are not incriminating or inculpatory do not fall within the ambit of OCGA § 17-7-210, and therefore need not be furnished to a defendant. [Cits.]” Williamson v. State, 188 Ga. App. 307, 308 (1) (372 SE2d 685) (1988).

“[T]he oral statement testified to by the police officer in fact contained the same material elements as the [statement disclosed by the State]. . . . Appellant [has] made no showing of surprise as to the contents of the oral statement nor has he shown any prejudice from the admission of the oral statement. ... We find no error in the admission of the oral statement.” (Emphasis supplied.) Rhodes v. State, 170 Ga. App. 473, 476 (2) (317 SE2d 285) (1984).

2. During direct examination of one of the State’s witnesses, appellant moved for a mistrial. The trial court ruled the testimony inadmissible and gave curative instructions, but appellant renewed his motion for mistrial. Appellant enumerates as error the denial of his renewed motion for mistrial.

“Where a motion for mistrial is made on the ground of inadmissible matters being presented to the jury, the corrective measure to be taken by the trial court also is largely a matter of discretion, and where [, as here,] proper corrective measures are taken and there is no abuse of that discretion, a refusal to grant a mistrial is not error. [Cit.]” Lee v. State, 166 Ga. App. 644, 645 (2) (305 SE2d 175) (1983). Accordingly, this enumeration of error is without merit. See also Anderson v. State, 262 Ga. 289, 290 (1) (418 SE2d 1) (1992).

3. Appellant’s enumeration of the general grounds is without merit. The evidence was sufficient to authorize a rational trior of fact to find appellant guilty beyond a reasonable doubt of possession of cocaine. See Bell v. State, 198 Ga. App. 874 (1) (403 SE2d 864) (1991); Watson v. State, 190 Ga. App. 96, 97 (2) (378 SE2d 378) (1989); Boulware v. State, 189 Ga. App. 390 (1) (376 SE2d 209) (1988).

Judgment affirmed. Pope, C. J., and Johnson, J., concur.

Lewis R. Slaton, District Attorney, Barry I. Mortge, Assistant District Attorney, for appellee.


text:
    A92A2094.
    THE STATE v. JARRELLS.
    (427 SE2d 568)
   Carley, Presiding Judge.

Appellee was indicted for carrying a concealed weapon and carrying a weapon without a license. Appellee filed a motion to suppress the weapon, which had been found in a warrantless search of his vehicle. At the hearing on this motion, the following evidence was adduced: A known confidential informant told officers that appellee was sitting in a blue Oldsmobile 98 at a certain address and that he was selling cocaine. Acting on this information, the officers went to the address and discovered appellee sitting in a blue Oldsmobile 98. The officers approached the vehicle and asked appellee to step out. In a search of appellee’s person, nothing was discovered. Although no drugs were found in a search of the passenger compartment of the vehicle, a handgun was. On this evidence the trial court found that the officers had a sufficient articulable suspicion to authorize an investigatory detention of appellee, but lacked probable cause to search appellee’s vehicle. The trial court accordingly granted appellee’s motion to suppress the handgun and the State appeals from that order.

1. The evidence authorized the trial court’s finding that the officers lacked probable cause to believe that appellee’s vehicle contained drugs and the trial court’s conclusion that the officers were, therefore, unauthorized to conduct a warrantless search for those drugs. See Polke v. State, 203 Ga. App. 306 (417 SE2d 22) (1992); Rucker v. State, 199 Ga. App. 854-855 (406 SE2d 277) (1991).

2. However, the evidence also authorized the trial court’s finding that the officers had a sufficient articulable suspicion to authorize an investigatory detention of appellee. See Rucker v. State, supra at 855; Anthony v. State, 197 Ga. App. 297 (1) (398 SE2d 580) (1990); Jones v. State, 195 Ga. App. 868, 869 (2) (395 SE2d 69) (1990); Stiggers v. State, 151 Ga. App. 546, 547 (1) (260 SE2d 413) (1979). “[A] tip from an informant of unknown reliability will not ordinarily create a reasonable suspicion of criminality, but information from a known informant of unknown reliability has more indicia of reliability than an anonymous telephone tip.” (Emphasis supplied.) Daniel, Ga. Crim. Trial Prac. (1992 ed.), § 3-7, p. 62. See Adams v. Williams, 407 U. S. 143 (92 SC 1921, 32 LE2d 612) (1972); United States v. Kent, 691 F2d 1376, 1379 [3] (11th Cir.1982). Compare Moreland v. State, 204 Ga. App. 218 (418 SE2d 788) (1992); Swanson v. State, 201 Ga. App. 896 (412 SE2d 630) (1991); Johnson v. State, 197 Ga. App. 538 (398 SE2d 826) (1990) (discussing anonymous tips).

3. Although the trial court found that the officers had a sufficient articulable suspicion to authorize an investigative detention of appellee, it did not purport to address whether the search of appellee’s vehicle was authorized as an incident of that detention. It has long been recognized, however, that an officer with an articulable suspicion sufficient to authorize an investigative detention of a suspect is not constitutionally required to place himself in jeopardy and may, under certain circumstances, conduct a preliminary search for weapons. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). “The Supreme Court has ‘recognized that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.’ [Cit.]” Hayes v. State, 202 Ga. App. 204, 205 (414 SE2d 321) (1991). Accordingly, “[l]aw enforcement officers who have detained but not arrested the occupants of an automobile may . . . conduct a warrantless search of the automobile passenger compartment, limited to those areas in which a weapon may be placed or hidden, if the officers possess a reasonable belief, based on specific and articulable facts and rational inferences from those facts, that the occupant(s) of the automobile are dangerous and may gain immediate control of a weapon. [Cit.] ... [If] the police [have] specific and articulable facts and rational inferences from such facts to make them believe that the occupants of [a] car [are] dangerous and could get control of a weapon[, they are] entitled to conduct a warrantless [weapons] search of the passenger compartment of the car, regardless of whether or not. . . the weapon was in plain view, and regardless of the fact that [the occupants were] not under arrest[, and regardless of the existence or non-existence of probable cause to search for contraband or other evidence].” Newby v. State, 178 Ga. App. 891, 892 (2) (345 SE2d 102) (1986).

4. The articulable suspicion which the trial court found to exist in the instant case related to appellee’s suspected drug activity. “It is not unreasonable for officers to anticipate that those who are suspected of involvement in the drug trade might be armed. [Cit.]” Condon v. State, 203 Ga. App. 163 (416 SE2d 802) (1992). Despite the trial court’s express finding of the existence of an articulable suspicion of appellee’s drug activity in his vehicle, “the trial court did not consider the issue of whether or not the search [of the passenger compartment of appellee’s vehicle] was authorized [and conducted] as an incident of appellee’s [valid investigatory detention]. . . . Notwithstanding the invalidity of the search pursuant to [probable cause to believe that appellee’s vehicle contained drugs], the trial court nevertheless could and should have considered whether there was a valid [weapons] search incident to appellee’s [investigatory detention]. [Cits.] . . . [T]he record shows that the trial court did not really make any findings of fact (as to the validity of the search as an incident to appellee’s [investigatory detention]), articulated or not. . . . Accordingly, this case must be remanded to the trial court for redetermination of the relevant issues after consideration of all the evidence. (Cits.)’ [Cits.]” State v. LaMotte, 196 Ga. App. 713-714 (396 SE2d 806) (1990).

Decided January 29, 1993.

Kenneth W. Mauldin, Solicitor, Jeffery A. Rothman, Assistant Solicitor, for appellant.

James W. Smith, for appellee.

5. Rucker u. State, supra at 856 is not precedent for a contrary holding in the instant case. In Rucker, the issue of whether the search of the vehicle could be upheld as an authorized weapons search incident to the investigatory stop for suspected drug activity was not addressed. “ ‘Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.’ [Cits.]” Albany Fed. S. & L. Assn. v. Henderson, 198 Ga. 116, 134 (1) (31 SE2d 20) (1944).

Judgment reversed and case remanded with direction. Pope, C. J., and Johnson, J., concur.


text:
    A92A2114.
    MILLER v. THE STATE.
    (427 SE2d 570)
   Carley, Presiding Judge.

After a jury trial, appellant was found guilty of possession of marijuana with intent to distribute. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Appellant moved for a directed verdict based upon his entrapment defense. The denial of this motion is enumerated as error.

“There is some question whether appellant’s evidence, standing alone, was sufficient to raise the issue of whether he was entrapped. In any event, when all of the evidence is considered, a finding that appellant was entrapped was certainly not demanded. [Cit.]” (Emphasis in original.) Venable v. State, 203 Ga. App. 517, 518 (3) (417 SE2d 347) (1992). Compare Hill v. State, 261 Ga. 377 (405 SE2d 258) (1991). This is so because “appellant’s testimony concerning his lack of predisposition hardly went uncontradicted. The testimony of the undercover agent [from] whom the appellant [purchased] the marijuana . . ., and [especially two] tape-recorded [conversations] between the appellant and the [informant], demonstrated that the appellant’s knowledge of and experience in drug trafficking was not that of a rookie. Specifically, during those negotiations, he discussed prices . . . of . . . contraband . . ., and recalled [numerous] other sales of contraband [and the manufacture of marijuana].” (Emphasis supplied.) Pierce v. State, 180 Ga. App. 847, 848 (2) (350 SE2d 781) (1986). Compare Emanuel v. State, 260 Ga. 425 (396 SE2d 225) (1990).

Decided January 29, 1993.

James W. Smith, James W. Gibert, for appellant.

Harry N. Gordon, District Attorney, Richard J. Weaver, Assis tant District Attorney, for appellee.

Appellant denied the truth of his tape-recorded statements, asserting that he had made them out of his fear of the informant on the one hand and a desire to impress the informant with his experience on the other. Nevertheless, “[t]he jury is the arbiter not only of the credibility of the witnesses ([cit.]) but also of the effect and weight of the evidence, [cit.]. . . . The jury was free to accept or reject either [the tape-recorded evidence of appellant’s predisposition] or [appellant’s courtroom explanation thereof].” Pennyman v. State, 175 Ga. App. 405, 407. (1a) (333 SE2d 659) (1985). It follows that appellant’s motion for a directed verdict was correctly denied.

2. Appellant enumerates as error the admission into evidence of his conversation with the informant, which had been secretly recorded while they waited for the undercover agent to arrive. He contends that the tape-recorded conversation was irrelevant and inadmissible to prove his predisposition.

“A defendant’s commission of subsequent criminal acts does not necessarily demonstrate his predisposition to have committed previous criminal acts. ‘If the “creative activity,” (cit.), of the law-enforcement official generates criminal acts that are “not independent acts subsequent to the inducement but part of a course of conduct which was the product of the inducement,” (cit.), those (subsequent) criminal acts cannot be used to show predisposition.’ [Cits.]” (Emphasis supplied.) Ordonez v. State, 202 Ga. App. 623, 624 (415 SE2d 179) (1992). The tape recording contains only statements which were made by appellant prior to his actual commission of any criminal act. Such statements do not themselves constitute criminal acts. Clearly, appellant’s statements, made immediately prior to his admitted commission of a criminal act, were admissible as probative of his predisposition to commit that act. See Watts v. State, 239 Ga. 725, 729 (3) (238 SE2d 894) (1977). As noted in Division 1, it was for the jury to determine the credibility and weight to be given to appellant’s statements. Accordingly, this enumeration is without merit.

Judgment affirmed. Pope, C. J., and Johnson, J., concur.


author: Blackburn, Judge.

text:
    A92A2072.
    SCOTT v. THE STATE.
    (427 SE2d 537)
   Blackburn, Judge.

Charles Scott was convicted by a jury of two counts of sale of cocaine. He appeals, contending that the trial court erred by allowing the prosecution to place his character in evidence and that the evidence was insufficient to support the verdict.

The sales of cocaine occurred on October 23 and 31, 1989. Scott lived in a duplex apartment at 3363 Antioch Road, Macon, Georgia. Two members of the Bibb County Sheriffs Department, an undercover agent, Deputy Lee Deal, and his supervisor, Investigator Russell Nelson, testified against Scott. Nelson and Deal testified that they had “targeted” Scott for a possible drug buy. Deal testified that before the first sale, “I had been working in the area where Mr. Scott lives in and I had seen him and heard conversations from other individuals in the area, who he was. . . . Everyone in the area called him Bay Charles.” According to Deal, he bought crack cocaine from Scott at the latter’s apartment on October 23, 1989, and October 31, 1989, each time paying him $40. Deal said that during each buy he entered Scott’s apartment and waited in the living room while Scott went to another part of the apartment and got the cocaine, and that he was in Scott’s apartment “[l]ess than one minute on each buy.” According to Nelson, he did not observe Deal go into Scott’s apartment on either occasion, but on each occasion Deal returned from Scott’s apartment with cocaine, which Deal turned over to Nelson. After each buy Deal told Nelson he had bought the cocaine from the defendant. On the day after the first buy, Nelson showed Deal a photo lineup with Scott’s picture in it, and Deal identified Scott as the person from whom he had bought the cocaine. A forensic chemist testified that the material Deal had bought from Scott tested “positive for cocaine.” Scott was arrested in April 1990 and was tried and convicted in June 1990.

During his testimony at trial, Scott was asked whether he was known as “Bay Charles,” and he replied that he was known as “Baby Charles.” Scott testified that he had not sold any cocaine to Deal, that Deal had never been to his apartment, and that he had never seen Deal before the trial of the present case.

1. In his first enumeration Scott asserts that the court improperly permitted the prosecution to introduce evidence of his general character. In the course of his argument in support of this enumeration he raises three distinct contentions, each concerning the introduction of testimony that he contends impermissibly placed his character in issue. As of the dates of the drug buys, Scott was on probation as a first offender for the felony of possession of marijuana. The testimony in question consists of a reference by Nelson to a computer check of probation, a reference by Deal to a computer check of a “jail file,” and testimony by Scott’s probation officer.

The opening statements of counsel were not included in the record, but it appears from statements by the trial court and Scott’s trial counsel, Thomas H. Hinson, during the trial that during Hinson’s opening statement he raised questions concerning the address of Scott’s apartment.

There was undisputed evidence that the address numbers had been removed from the outside of Scott’s apartment. According to Nelson, “[w]e find that people will remove the numbers from the house to try to throw us off when we go on a search warrant.” Scott testified that the numbers were not on his apartment when he moved there, and had never been there in the one-and-one-half years he had lived there.

Nelson described the location of the apartment as “the first duplex apartment to your right as you turn into the driveway off of Antioch Road. If you’re facing the apartment from the front, it would be the apartment on the right.” Deal described the apartment’s location similarly. He “believe [d] there’s six buildings” in Scott’s apartment complex, although he had “never stopped and counted them” and was “not sure.” Scott testified that there were five buildings in the complex.

During the state’s direct examination of Nelson, the prosecutor asked him “at some point during your investigation, . . . did you attempt to get an address of this location that we’re talking about?” Nelson answered that he had, and then was asked “[h]ow did you attempt to get that address?” He responded that “I checked the computer, checked on the probation by —” (emphasis supplied), at which point his answer was interrupted by a request by defense counsel for a bench conference. At the conference, the following colloquy took place: “THE COURT: You have brought into issue the address. He has a right to testify how he — the only way he could get an address. MR. HINSON [defense counsel]: I think the state could use some other way to bring it out, other than bring it out this way. MS. [KIMBERLY] SHUMATE [prosecutor]: I’m not going to ask him anything more. THE COURT: The only way they can do it is how it was done, isn’t it? MR. HINSON: Yes, sir.” (Emphasis supplied.)

The bench conference then ended, and Shumate asked Nelson, “[w]hen you checked your computer program, Officer Nelson, did you get an address?” Nelson replied that he had gotten “3334 Antioch Road,” which he had written on a report, but that he had since learned that the correct address was “3363 Antioch Road.”

On cross-examination of Nelson, Hinson asked him, “[n]ow, you know that there’s a city map with everybody’s house number on it on file in the courthouse don’t you?” Nelson replied that he was not aware of such a map. Hinson later asked him whether he had looked Scott’s address up on any map, to which Nelson replied that “I checked the blue book for an address and there wasn’t one listed.” Hinson then questioned Nelson about several reports which Nelson and Deal had filled out, and which contained no address number or an incorrect address number for Scott’s apartment. Hinson completed his cross-examination with this dialogue: “What you’re telling the jury is that you got some information from a computer that this man over here, Charles Scott, the person that you were targeting, lived on Antioch Road? A. I knew he lived on Antioch Road. Q. At a certain address? A. I knew he lived on Antioch Road. Because the numbers were removed from the house, I didn’t have no way of determining what the number was so I had to use information that he gave what his address was.”

Nelson also testified on cross-examination that Deal had written “482 Antioch Road,” “480 Antioch Road,” and “42 Antioch Road” on various documents. An overnight recess was taken after Nelson’s testimony.

At the beginning of the next day’s proceedings, Hinson moved for a mistrial on the ground that the state had put Scott’s character in issue when Nelson testified that he had gotten Scott’s address through a computer check of “probation.” The following colloquy then ensued: “THE COURT: I’m going to overrule it because it was brought up in opening arguments the question of differences in addresses and I think the state had a right to show how they got the address. MR. HINSON: All right. But what I’m saying, Your Honor, is that, and I’m not arguing with your ruling, I’m understanding it very clearly, but what I’m saying is I think the state could have done it in a different way. They could have said they just simply checked the computer, without referring to the probation computer or any type of jail computer or anything like that. THE COURT: The state did not say that. The witness mentioned the word “probation” and it was never mentioned again and I barely heard it and I don’t know if the jury even heard it because it was almost an in passing thing, said I checked the computer and probation or something like that and then Ms. Shumate immediately went to something else and the word ‘probation’ never came up again. MR. HINSON: I understand that. That’s really why I did not make the objection at that particular moment. I wanted to point out to the Court that I think using the word ‘probation’ did place his character in issue and I would like to ask — THE COURT: The Court is of the opinion that the state, if it wanted to, could bring in a probation officer and they could testif[y] that they interviewed, if this were the fact, that they interviewed this man and he gave them a certain address and that this is the address that he was given in his official capacity in interviewing this individual and that that is the address that was then put on the computer as his address. I think they could do that and I don’t anticipate that they’re going to, but the fact of the defense I think means that they have a right to show what address they have on him and how they got it and who secured it. So it’s a situation where by raising a particular defense the state has to meet it the best way they can and if they can only meet it in such a way that it incidentally puts the person’s character in issue, I think that that is not grounds for a mistrial. The same would be true if somebody raised an entrapment defense. They would then have a right to go in and show everything that they had, innuendo, reports concerning a person’s background, convictions, all of this sort of thing in order to show a propensity to commit the offenses. I think it’s the same sort of situation. MR. HINSON: Well, I understand what the Court’s saying and. I agree with the logic behind it, but I think that the state could have kept that word ‘probation’ from being offered. There was absolutely no need in it and it certainly didn’t do anything except place his character in issue. MS. SHU-MATE: Except that the part of the defense that’s been raised here is not just the difference in addresses but that the police were doing sloppy police work in not investigating this properly and not looking at the city plat map or whatever. THE COURT: I’ve made my ruling and I’ve made my record. MR. HINSON: Thank you, Your Honor.” (Emphasis supplied.)

During direct examination of Deal, that witness gave the following testimony: “Q. Investigator Deal, when you went back to the drüg squad office that night [after the first buy], did you know a house address? A. No, ma’am, I did not know the address. Q. Did you know a street? A. I knew it was Antioch Road. Q. Did you make some attempt to find a street address? A. Yes, ma’am, I did. Q. What attempt did you make? How did you do that? A. I pulled up Mr. Scott’s name on a computer. Q. Now, do you know — Were you looking at the same computer that Investigator Nelson looked atl A. No, ma’am, it was a different code. I looked at a different code. Q. Different program? A. Different program.” (Emphasis supplied.) When asked whether he had gotten an address, he said he had gotten “482 Antioch Road,” which he had since learned was an incorrect address.

On cross-examination, Deal was asked by Hinson whether he had ever worked the computer “on the front desk there at the jail where people come in and post bonds and that sort of thing” (emphasis supplied), to which Deal replied in the negative. Later in his questioning, Hinson asked whether he knew where Nelson had gotten the address “3334 Antioch Road,” to which Deal replied affirmatively. Hinson then asked, “[h]e went to a computer also; is that right,” and Deal replied, “[y]es sir, same terminal.” Hinson subsequently questioned Deal about the various addresses, including 482 and 480 Antioch Road, that had been written on documents in connection with the case.

On redirect examination the following exchange took place: “Q. Investigator Deal, let’s back up to one of the first things that Mr. Hinson asked you about. He asked you about the property bond computer and that sort of thing. That’s not the program you looked at, is it? A. No, it’s not. Q. When you punched something in the computer to get this 482 address that you got, what were you asking for? Were you asking for an address or a name or what? MR. HINSON: Your Honor, I would ask that he not be allowed to answer that question. THE COURT: Are you withdrawing your attack on the fact that there’s various numbers involved? MR. HINSON: No, sir. THE COURT: All right. Answer the question. A. THE WITNESS: I had a name and I just — There’s various codes you can put in and then with the name afterwards, I just put in the jail file.” Q. You put in his name and got an address; is that correct? MR. HINSON: Your Honor, I object. THE COURT: Over[r]uled.” (Emphasis supplied.)

After the state rested, Scott renewed his earlier motion for mistrial, and also moved for a mistrial “on the basis of the officer who got my client’s name on the jail list. I [don’t?] think that that was necessary. I think it, obviously, placed his character in issue. I think the state had, frankly the prosecuting attorney, I think had done as much as she could do to protect his character from being put into issue in her direct examination. I don’t want to give up any points, but I think she did everything she could, but then she went back on redirect and got into an issue that I felt like he was going to go into and that is this jail list. So we’ve got one witness testifying that his name’s on the probation list and another witness testifying that his name’s on a jail list or jail computer and I just think that, obviously, put into issue his character and we had not heretofore placed his character in issue.”

The trial court replied that “I certainly did not anticipate that phrase coming out and I don’t think the question required that. I’m disappointed in the fact that it happened. I am not going to declare a mistrial. If you would submit to me a proposed charge regarding that, I will be happy to give the appropriate charge to the jury.” (Emphasis supplied.) Hinson replied that “[o]f course, that puts me on the horns of a dilemma. I don’t want to emphasize that point with the jury, and I think to charge that would cause that point to be unduly emphasized.” (Emphasis supplied.) The trial court responded that “[t]hat is your option. So I’ll overrule your motion.”

On recross-examination of Scott, he denied ever having lived at 3334, 482 or 480 Antioch Road, and further denied ever having told anybody that he lived at 3334 or 482 Antioch Road.

After the defense rested, the state called Mozelle Gholson as a rebuttal witness. She testified that she was an employee of the Macon Probation Office, and replied affirmatively when asked if in the course of her work she had “come in contact with” Scott “on more than one occasion.” During her testimony on direct and cross-examination she testified that “each time” he came in the office it was “always standard procedure” to ask about his address. Gholson at first maintained that he “consistently” and “always” had given her 3334 Antioch Road as his address, but she later admitted that on at least one occasion he had told her that he lived at 3363 Antioch Road. She also said that he had never told her that he lived at 480 or 482 Antioch Road.

After her testimony, Hinson addressed the trial court as follows: “Your Honor, I wanted to renew the previous two motions for mistrial and also make an additional motion. I had previously objected at the bench or indicated that I wanted to object. The Court advised me you wanted me to wait until the jury left — THE COURT: That’s correct. MR. HINSON: — on the testimony of Mrs. Gholson. I believe her testimony has placed his character at issue and I would, therefore, request the Court grant a mistrial. THE COURT: We’ll let it go to the jury.”

(a) Scott’s initial contention with respect to his first enumeration of error is that the trial court erred by not granting his motion for mistrial that was based on Nelson’s reference to the probation computer. However, the record shows that at two points Scott’s counsel failed to object contemporaneously to the court’s ruling allowing the testimony: First, during the bench conference after Nelson made the reference, the court asked, “[t]he only way they can do it is how it was done, isn’t it,” and Hinson replied, “Yes, sir,” thereby acquiescing in the court’s ruling. Second, during his motion for mistrial on the following day Hinson acknowledged that “I did not make the objection at that particular moment,” referring to the bench conference the previous day. Although Scott moved for a mistrial based on Nelson’s reference to the probation computer, Scott’s “failure to object contemporaneously constitutes a waiver. [Cit.]” Merritt v. State, 255 Ga. 459, 460 (2) (339 SE2d 594) (1986). Accord Smith v. State, 180 Ga. App. 422, 423-424 (1) (349 SE2d 279) (1986).

(b) Scott’s second contention in support of his first enumeration is that the trial court erred by failing to grant his motion for mistrial that was based on Deal’s testimony that he searched for Scott’s address in the “jail file.”

We find that this contention presents nothing for our review, since the record shows that Scott declined the trial court’s offer to give curative instructions. After expressing its displeasure with Deal’s reference to the jail file, the court said, “[i]f you would submit to me a proposed charge regarding that, I will be happy to give the appropriate charge to the jury.” Hinson declined the offer, explaining that “[o]f course, that puts me on the horns of a dilemma. I don’t want to emphasize that point with the jury, and I think to charge that would cause that point to be unduly emphasized.” The trial court acknowledged his decision not to accept the court’s offer, informing Hinson that “[t]hat is your option. So I’ll overrule your motion.” We hold that “[s]ince defense counsel declined the trial court’s offer to give curative instructions to the jury, appellant will not now be heard to complain.” Jones v. State, 250 Ga. 166, 168 (3) (296 SE2d 598) (1982). Accord Tyler v. State, 198 Ga. App. 685, 687 (1) (402 SE2d 780) (1991).

(c) Scott’s third contention regarding his first enumeration of error is that the trial court erred by failing to grant his motion for mistrial that was based on Gholson’s testimony. He contends that her testimony improperly placed his character in evidence by revealing that he had a prior criminal conviction. We find that this contention has no merit.

The testimony in question did tend to impugn Scott’s character, but relevant evidence is not rendered inadmissible merely because it incidentally impugns the defendant’s character. Rhodes v. State, 200 Ga. App. 193, 197-198 (5) (407 SE2d 442) (1991) (travel permit issued by probation office was admissible because it was necessary to link defendant with other evidence); Miller v. State, 163 Ga. App. 889, 890-891 (3) (296 SE2d 182) (1982) (testimony by GBI agent about visits to defendant’s house on pending undercover investigation was material to issue of location of appellant’s house).

Scott’s defense was mistaken identity, and in support of this defense he attempted to show, through the confusion over the exact address of his apartment, that Deal was mistaken about the location of his purchases, and therefore that Deal had bought the cocaine at someone else’s apartment. We find that Scott thereby made the location of the sales a material issue, and that the trial court did not err by permitting the state to explain a source of the investigating officers’ confusion over the address of Scott’s apartment, even though such evidence incidentally impugned Scott’s character.

2. In his second enumeration of error Scott contends that the trial court erred by permitting testimony about an alleged independent buy from a woman who allegedly lived with him. For the following reasons, we find that this enumeration has no merit, as the testimony was relevant to the question of Deal’s identification of Scott.

On cross-examination of Deal, he was asked by Hinson whether he knew “how many people were living in the apartments [sic] you went into?” Deal responded, “I know for a fact, two.” On redirect examination, Shumate questioned him as follows: “Q. You worked several different locations on Antioch Road; is that correct? A. No, ma’am. On Antioch Road itself, I worked Mr. Scott’s house and the area right on the side. There’s several people that sit on a hill there. Q. So you didn’t work various apartments on Antioch Road? A. No, ma’am, just that one apartment. Q. Just that one particular apartment? A. Yes. Q. And you had made other cases in the front yard? A. Several; numerous. Q. Did you ever make a case on a female? A. I did. Q. Okay, and do you know who that female was? MR. HINSON: Your Honor, I object. I don’t know what that has to do with this case. THE COURT: I don’t either, but let’s find out. Answer the question. MS. SHUMATE: May we approach? Bench Conference. MS. SHUMATE: The question is it’s his girlfriend. MR. HINSON: That hasn’t got anything to do with this case. THE COURT: I don’t know whether it does or not. Conclusion of Bench Conference. THE COURT: Answer the question. MS. SHUMATE: Do you know who the f[e]male was? A. I’m not exactly sure of the name right now. I haven’t reviewed the file in a long time, but I know that she lived in the same apartment with Mr. Scott. MR. HINSON: I object to that, Your Honor. No name and it’s just — THE COURT: Overrule the motion. Overrule the objection. Q. And you made purchases from her as well? A. Yes. Q. In the front yard of that same apartment? A. I did. MS. SHU-MATE: Nothing further.” Scott subsequently moved for a mistrial with respect to the foregoing portion of Deal’s testimony, and the trial court overruled the motion.

On direct examination of Scott, he admitted that he lived with a 26-year-old woman, but said that she did not sell drugs.

On appeal Scott argues that the “only conceivable purpose and the clear and unavoidable effect” of Deal’s testimony that he had made a case in the front yard of Scott’s apartment with a woman who lived with him “was to attempt to further incriminate and convict Defendant by allegation of association with other persons who sell drugs.” He asserts that that testimony “not only wrongfully raises the issue of Defendant’s character, but relies on the suggestion of guilt by association” through “an apparently unconnected crime by another person.”

The state replies that the testimony in question described Deal’s “familiarity with the apartment and with the appellant’s girlfriend,” and was “relevant and material to an issue which the appellant himself raised at trial — i.e., the reliability of Deal’s identification of him and description of the location of these events. When the officer’s testimony was thus attacked, the state was entitled to prove his knowledge of the facts to which he testified and the basis of that knowledge.”

We find, as Scott contends, that the testimony did place his character in issue, since it tended to impugn Scott’s character and establish his guilt by association. See Johnson v. State, 202 Ga. App. 590 (415 SE2d 189) (1992) (state cross-examined defendant whether his companion had been convicted of selling cocaine); Hill v. State, 176 Ga. App. 509, 510 (336 SE2d 276) (1985) (state cross-examined defendant whether other members of his family had “been in trouble for marijuana”). Compare with Shields v. State, 203 Ga. App. 538 (1) (417 SE2d 168) (1992) (testimony that defendant was “associate” of person from whom officer had purchased stolen property and controlled substances did not necessarily impugn defendant’s character); Tinch v. State, 170 Ga. App. 714 (318 SE2d 505) (1984) (testimony that officer had seen defendant and co-defendant together before did not place defendant’s character in issue).

Decided January 22, 1993

Reconsideration denied February 1, 1993

Sinnreich & Francisco, Elizabeth R. Francisco, for appellant.

Willis B. Sparks III, District Attorney, Kimberly S. Shumate, Assistant District Attorney, for appellee.

However, we also find, as the state contends, that the testimony in question was relevant to the issues Scott himself had raised. See Division 1 (a), supra. It was therefore admissible, even though it incidentally impugned Scott’s character. Rhodes, supra, 200 Ga. App. at 197-198 (5); Miller, supra, 163 Ga. App. at 890-891 (3).

3. In his third enumeration of error Scott contends that the evidence was insufficient to sustain the verdict. However, construing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found Scott guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

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


text:
    A92A2286.
    GARLAND v. THE STATE.
    (427 SE2d 314)
   Blackburn, Judge.

The defendant, Yancey Derringer Garland, was convicted by a jury of armed robbery and aggravated assault and sentenced to 20 years on each count. On appeal, the defendant contends that the evidence was insufficient to support his conviction.

At trial, the 44-year-old male victim, testified that on August 11, 1990, a woman accompanied him home after she offered to have sex with him for money. The defendant followed the two to the victim’s home. The victim subsequently asked the woman to leave when he was unable to produce enough money. She returned to the victim’s home with the defendant, who forced his way into the house and stabbed the victim in the upper part of his back. The defendant also took the victim’s wallet which contained money and food stamps. The victim reported the incident to the police and was subsequently taken to the hospital.

Officer Chris Mullins testified that on the night in question, the victim had informed him that a tall man wearing a white T-shirt, tan pants and a “box” haircut pushed his way into his home. The victim indicated that the man took $50 and stabbed him in the back with an unknown object. Officer Betty Spencer testified that on the night in question, she received a call concerning this incident and she reported to the hospital emergency room. Upon her arrival, she saw two stabbing victims, one was the victim and the other was the woman who had been with the victim earlier that evening. While at the hospital, she saw the defendant attending to the woman. The woman was later identified as his girl friend. According to Officer Spencer, the defendant appeared to have fit the victim’s description of his assailant. When Officer Spencer started looking for the defendant and asking questions about him, he fled and was later apprehended at a Florida hospital while visiting his girl friend who had been transferred there for treatment. The next day after the incident, Officer Spencer asked the victim to view a photographic array, from which the victim identified the defendant. The victim was also able to identify the defendant in court as his assailant.

In the appellant’s sole enumeration of error, he contends that the evidence produced at trial was insufficient to support his conviction. On appeal of a criminal conviction, the standard of review is whether, “ ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Cit.]” (Emphasis omitted.) Adams v. State, 255 Ga. 356, 357 (338 SE2d 860) (1986). At trial, direct evidence was produced which connected the defendant to the crime. The victim made a pre-trial identification of the defendant from a photographic array and additionally identified the defendant as his assailant in court. Although the defendant challenges the victim’s pre-trial identification as being impermissibly suggestive, he does not enumerate as error the admissibility of the pre-trial identification nor did he object to its admission at trial. As this court held in Newberry v. State, 184 Ga. App. 356, 357 (1) (361 SE2d 499) (1987), “[e] numerations may not be enlarged by brief on appeal to cover issues not contained in the original enumeration. [Cit.]” Therefore, this court may not address the admissibility of the pre-trial identification.

The defendant also asserts that the victim was inconsistent and nonresponsive to some of the questions asked of him at trial. “[T]his court determines the sufficiency of the evidence, but does not weigh the evidence or determine witness credibility. [Cit.]” Daniel v. State, 200 Ga. App. 79, 80 (1) (406 SE2d 806) (1991). The jury weighed the evidence and found against the defendant and this court may not substitute its judgment for that of the jury. We have reviewed the evidence in the light most favorable to the prosecution and conclude that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided January 19, 1993

Reconsideration denied February 1, 1993.

Andrews & Seery, Stephen H. Andrews, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.

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


text:
    A92A1663.
    MILAN v. THE STATE.
    (427 SE2d 573)
   Blackburn, Judge.

Willie Milam, a prisoner at Georgia State Prison at Reidsville, Georgia, was convicted of aggravated assault upon a correctional officer, OCGA § 16-5-21 (e), and unauthorized possession of a weapon by an inmate, OCGA § 42-5-18 (b). Although the record and the style of this case on appeal indicate that the defendant’s surname is “Milan,” his counsel has informed this Court that the correct surname is “Milam.” In this opinion, we shall refer to him by his correct surname. Milam contends that the State impermissibly placed his character in issue, and that the trial court erred by denying his motion for a change of venue.

1. Milam claims that the State placed his character in issue. He testified at trial, and during cross-examination the following series of questions and answers took place: “Q. . . . Who was Horan Milan [sic]? A. That was my father. Q. He’s not alive anymore? A. No. Q. And that’s the reason you’re in prison, isn’t it? A. Right. Q. You killed him didn’t you? A. Yeah.” Milam did not object to this line of questioning at trial, and raised the character issue for the first time on motion for new trial. On appeal, he contends that the trial court erred by denying the ground of his motion for new trial that was based on that issue.

We find no error, since Milam’s failure to object at trial constituted a waiver. Johnson v. State, 204 Ga. App. 277 (1) (419 SE2d 118) (1992). Moreover, we note that all of the information elicited during the above portion of the cross-examination, with the exception of the fact that the victim was Milam’s father, was cumulative of evidence that was earlier admitted without objection.

2. Milam contends that the trial court erred by denying his motion for a change of venue. He was tried and convicted in Tattnall County, wherein lies the Georgia State Prison (hereinafter, “the Prison”). Before trial he filed a motion for change of venue, which was not heard until after the voir dire at trial. No transcription, of the voir dire was included in the record transmitted to this Court; instead, the transcript begins with the post-voir dire hearing on the motion to change venue: “THE COURT: Is there . . . any evidence that you desire to introduce? ... MS. CHENEY [DEFENSE COUNSEL]: I did want to say something about the fact that the panel that the defendant chose the jury from, when looking at. . . the make up [sic] of the panel, of the forty-four prospective jurors, sixteen of them had close relationships to people at Georgia State Prison; that is, they either were employed there themselves, their spouse or an immediate family member was employed there. There were another four or five who had more distant relations, whether they were cousins or in-laws, aunts or uncles. This didn’t even take into account those that had close friends and other types of relationships with people out there. I think that based on that it’s indicative of the fact that it’s very hard to separate the residents of Tattnall County from the prison. It’s the major employer here and it’s the most visible. There is no way that County residents can separate themselves from the prejudices that they have against the inmates at the prison; and for this reason, we would move for a change of venue. . . . MR. DURDEN [DISTRICT ATTORNEY]: ... As I recall, during jury selection, of course we went through the statutory questions and . . . nobody answered in the affirmative that they had a . . . preconceived idea about the way the case should come out or any bias, and in the general voir dire nothing of that effect came out. . . . THE COURT: All right. The Court’s going to deny the motion for change of venue. It’s denied.”

On appeal Milam contends that the trial court’s failure to change venue violated his right to an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution.

“In Street v. State, 237 Ga. 307, 311 (227 SE2d 750) (1976), [the Georgia Supreme Court] concluded regarding motions for change of venue ‘that under the decisions of the Supreme Court of the United States, to find that the petitioner did not receive a fair trial, petitioner must show (1) that the setting of the trial was inherently prejudicial [sometimes referred to as the “presumptive prejudice” test] or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible.’ The second test involves review of the voir dire examination of potential jurors. [Cit.]” Kesler v. State, 249 Ga. 462, 471-472 (7) (291 SE2d 497) (1982). Accord Chancey v. State, 256 Ga. 415, 429 (5) (349 SE2d 717) (1986). “Traditionally, a defendant seeking a change of venue on the basis that the setting of the trial is inherently prejudicial relies heavily if not primarily or exclusively on news media reports. . . .” Kesler at 472; accord Chancey at 429. But defendants sometimes also seek to show inherent prejudice has resulted from “widespread community fear and bias.” Chancey at 431 (5B). See Jordan v. State, 247 Ga. 328, 336-337 (5) (276 SE2d 224) (1981) (defendant attempted to show bias of citizens in Tattnall County against inmates of Georgia State Prison), federal writ of habeas corpus granted on other ground, Jordan v. Lippman, 763 F2d 1265, 1266 (11th Cir. 1985).

In the present case Milam’s argument is based neither on allegations of actual prejudice nor inherent prejudice stemming from pretrial publicity, and is confined solely to an allegation of inherent prejudice due to widespread community fear and bias associated with the presence of the Prison in Tattnall County. The test for evaluating such an inherent prejudice contention was set forth in Chancey, supra, 256 Ga. at 431 (5B): “Was the setting of the trial inherently prejudicial as a result of the widespread community fear and bias alleged by the appellants?

“To answer this question in the affirmative would be to hold that appellants were entitled to a change of venue without the trial court’s even summoning prospective jurors to court and examining them in order to determine whether those prospective jurors actually summoned could in fact serve as fair and impartial jurors in the case. Thus, in determining whether community bias rendered the trial setting inherently prejudicial, as in determining whether pretrial publicity rendered the setting of the trial inherently prejudicial, we hold that questions should be asked as to whether the trial was held in an inflammatory atmosphere and whether there was a ‘wave of public passion.’ [Cit.] If factors such as these do not exist, the question of whether the criminal defendant is able to obtain a fair trial in a particular case should be determined through the jury selection process.”

The issue in the present case is, then, whether Milam demonstrated that, due to widespread community fear and bias, the trial was held in an inflammatory atmosphere amid a wave of public passion. On appeal, Milam contends that the Prison “is one of the largest employers in the County,” and that “many persons, if not all, on the ven[ire]” work there, have relatives or neighbors working there, or are otherwise associated with persons working there. He argues that any act of violence by an inmate against an employee of the Prison therefore “will be met with enmity in the minds of prospective jurors,” and that his right to an impartial jury “was significantly impaired by the community enmity directed at him and reflected by the panel of jurors drawn to try appellant.” Milam further argues that “Tattnall County is a largely rural county with a scattered population, and the people of the county naturally have fears and apprehensions about the inmates which prevent jurors from being impartial.” Finally, he argues that Tattnall County is the site of many prosecutions of Prison inmates; that the “entire jury pool of the county has been saturated with and infected by these cases and the events which gave rise to them”; and that prospective jurors are therefore predisposed to convict inmates.

We find no merit in this argument. Initially, we accept, through judicial notice, the assertion of Milam’s counsel on appeal that Tattnall County is a largely rural county (with a population of 17,722 according to the 1990 Census). Further, we assume without deciding that the factual assertions of Milam’s counsel during the hearing on his motion to change venue constitute evidence; thus, we assume for purposes of this opinion that Milam established that the Prison was one of the largest employers in Tattnall County (at trial, counsel said it was “the major employer,” but on appeal modified that assertion to “one of the largest”), and that the prospective jurors on Milam’s venire either were employed at the Prison or had relatives, friends, or acquaintances there.

However, there is no evidence to support Milam’s conclusory allegations that prospective jurors felt enmity toward acts of violence by inmates against Prison employees, or that the panel of jurors drawn to try him reflected that enmity. In the latter regard, Milam has provided us with no evidence whether he attempted to remove any prospective jurors for cause due to bias, whether any jurors were removed for bias, or even whether the jurors on the panel which was seated had any connection to the Prison through their own employment or the employment of others.

Similarly, he has failed to show that any generalized fears and apprehensions on the part of jurors resulted from the rural nature of Tattnall County. Finally, he has failed to demonstrate either the number of prosecutions of inmates in Tattnall County or a predisposition of jurors to convict resulting from such prosecutions.

Pretermitting whether the above unproven factual assertions by Milam would demonstrate, if supported by evidence, that the setting of the trial was inherently prejudicial due to widespread community fear and bias, the facts that we have accepted for purposes of this opinion as proven — the rural nature of Tattnall County, coupled with its status as one of the largest employers and its resultant impact on the prospective jurors on Milam’s panel — were insufficient to demonstrate either widespread community fear and bias or that the trial was held in an inflammatory atmosphere amid a wave of public passion. “We hold that, based on the present record, the trial court cannot be said to have abused its discretion or erred in ruling that there has been no such showing here of an inherently prejudicial trial setting as a result of community fear and bias.” Chancey, supra, 256 Ga. at 431 (5B).

Decided February 1, 1993.

Cheney & Cheney, Sharon G. Cheney, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Jr., Assistant District Attorney, for appellee.

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


text:
    A92A1919.
    BURT v. ENERGY SERVICES INVESTMENT CORPORATION.
    (427 SE2d 576)
   Blackburn, Judge.

The appellant, Hilliard Burt, appeals from the order of the trial court dismissing his complaint for damages against the appellee, Energy Services Investment Corporation, based upon lack of personal jurisdiction.

In 1979, a representative of Byron Oil Industries, Inc., of Missouri (Byron), contacted the appellant by phone to invest in an oil well in the State of Colorado. According to the terms of the agreement, Byron would act as the operator of the well. After several telephone conversations with a representative of Byron, the appellant received a letter, a statement of the well drilling costs and a “remittance receipt” in Georgia from Byron through the U. S. mail. The appellant signed the remittance receipt in Georgia and returned the receipt, along with $6,300, to Byron, also by U. S. mail. The appellant later received a prospectus from Byron. Byron subsequently sold its operating interest to another corporation and through a series of subsequent sales, the appellee acquired the operating interest in the Colorado oil well from Flore Properties, Inc. on May 1, 1990. The appellant has been billed by Byron as well as its subsequent transferees, including the appellee, for its operations’ expenses. The appellant has paid the charges periodically as they became due.

The appellant filed this complaint in Dougherty County State Court on October 18, 1991. The appellee was served with the complaint in this action by certified mail on October 28, 1991.

In his sole enumeration of error, the appellant contends that the trial court erred in finding that the appellee was not subject to the jurisdiction of the Georgia courts. A close examination of the complaint, answer, affidavits, and responses to the plaintiff’s first and second interrogatories revealed the following facts: The appellee is a nonresident corporation with its principal office, place of business, and registered agent for service of process in Oklahoma. The appellee does not have a registered agent for service of process in this state and has not been incorporated or registered to do business in the state. The appellee has not engaged in the transaction of any business in Georgia nor has the appellee solicited investors from the State of Georgia. In addition, the appellee does not have any stockholders who are residents of Georgia.

According to OCGA § 9-10-91 (1), a Georgia court may exercise jurisdiction over any nonresident as to a cause of action arising from any acts enumerated in this Code section in the same manner as if he was a resident of the state, if the person or through an agent, “transacts any business within [the] state.” It has been held that this section applies to nonresident corporations. Scott v. Crescent Tool Co., 296 FSupp. 147 (N.D. Ga. 1969). “ ‘Under our Long Arm Statute (OCGA § 9-10-91) jurisdiction over a nonresident exists on the basis of transacting business in this state (1) if the nonresident has purposefully done some act or consummated some transaction in this state, (2) if the cause of action arises from or is connected with such act or transaction, and if the exercise of jurisdiction by the courts of this state does not offend traditional fairness and substantial justice.’ [Cit.]” Tampa Motel Mgmt. Co. v. Stratton of Fla., 186 Ga. App. 135, 136-137 (1) (366 SE2d 804) (1988). See also Kendrick v. Parker, 258 Ga. 210 (367 SE2d 544) (1988). However, “[the] ‘transacts any business’ subsection of the Georgia long-arm statute requires more contacts between the defendants, the forum, and the litigation for the assertion of specific personal jurisdiction than does federal due process.” General Elec. Credit Corp. v. Scott’s Furniture Warehouse Showroom, 699 FSupp. 907, 915 (N.D. Ga. 1988). “ ‘(T)o satisfy due process, the requirements of Intl. Shoe Co. v. Washington, 326 U. S. 310, 316 (66 SC 154, 90 LE 95) (1945) must be met as to each defendant over whom a state court exercises jurisdiction. (D)ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” Id. at 316.’ (Indention omitted.) [Cit.]” Millard v. Millard, 204 Ga. App. 399, 401 (419 SE2d 718) (1992). “Mere telephone or mail contact with an out-of-state defendant ... is insufficient to establish the purposeful activity with Georgia required by the ‘Long Arm’ statute.” Wise v. State Bd. for Examination &c. of Architects, 247 Ga. 206, 209 (2) (274 SE2d 544) (1981).

Decided February 1, 1993.

Hilliard P. Burt, pro se.

Thomas Q. Langstaff, for appellee.

Applying this analysis to the present case, we must agree with the trial court that personal jurisdiction over the appellee in this case is unreasonable. The appellee has not purposely done some act or consummated some transaction in this state. In addition, the appellee has not purposefully availed itself of the privilege of doing some act in this forum by merely acquiring and operating a well in Colorado in which the plaintiff has a financial interest or by collecting operating expenses from the appellee by mail. Further, the appellee did not initiate any contact with this appellant or this forum. The appellee has not transacted any business in Georgia, is not registered to do business in Georgia and does not own any property in Georgia. The record is devoid of any evidence indicating that the appellee has made the “minimum contacts” with this forum that are consistent with the due process notions of “fair play” and “substantial justice.” The appellant relies on several cases which place great weight on the defendant’s presence in the state during some phase of the soliciting, negotiation, consummation or performance of the contract or the defendant’s purposeful contact with a Georgia resident for the purpose of initiating a contract. Those factors are not present in the case sub judice.

Under the circumstances of this case, we find that the appellee has met its burden of showing that the appellee’s connection with Georgia was sufficiently attenuated that the fundamental principles of due process would be offended by the exercise of personal jurisdiction over the appellee. Accordingly, the trial court did not err in granting the appellee’s motion to dismiss appellant’s complaint.

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


text:
    A92A1924.
    LEWIS v. THE STATE.
    (427 SE2d 578)
   Blackburn, Judge.

In November 1990, a Department of Natural Resources conservation ranger charged the appellant, Robin Lewis, with hunting before legal hours and negligent hunting, both charges stemming from an incident in which Lewis accidentally shot another individual while hunting. On November 9, 1990, he appeared before the Fannin County Probate Court and paid a fine of $122 for the negligent hunting charge.

Subsequently, Lewis was indicted for the felony offense of misuse of a firearm while hunting, in violation of OCGA § 16-11-108, based on the same incident. He then filed a motion in autrefois convict and plea of former jeopardy, which was denied by the trial court. Even though denial of a plea of former jeopardy may be directly appealed, Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982), Lewis sought an interlocutory appeal, and this court granted his application.

Initially, we note that we are without the benefit of a transcript of the hearing before the trial court considering Lewis’s plea of former jeopardy, or of the proceedings before the probate court that fined him for negligent hunting. However, since probate courts have jurisdiction to conduct trials, receive pleas of guilty, and impose sentence for violations of misdemeanor offenses specified in Title 27, the fine imposed against Lewis by the probate court ostensibly pertained to a violation of OCGA § 27-2-25.1 (b). That statute makes it a misdemeanor for a hunter to fail to notify the Georgia Department of Natural Resources or any appropriate law enforcement officer in the event he injures or kills another person with a hunting weapon.

The indictment subsequently returned against Lewis charged him with a violation of OCGA § 16-11-108 (a), which provides that “[a]ny person who while hunting wildlife uses a firearm or archery tackle in a manner to endanger the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm to or endanger the safety of another person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor; provided, however, if such conduct results in serious bodily harm to another person, the person engaging in such conduct shall be guilty of a felony. ...” The probate court had no jurisdiction over such an offense, and any prosecution of this felony offense before the probate court would have been void and no impediment to a subsequent prosecution in the superior court which did have jurisdiction. Parker v. State, 170 Ga. App. 333 (317 SE2d 209) (1984).

Inasmuch as both offenses stem from the same conduct, Lewis contends that the former prosecution in the probate court should bar the subsequent prosecution. However, under the facts as presented in this case, we conclude that the second prosecution is allowed.

“The starting point for an analysis for any double jeopardy question in this state must begin with [OCGA §§ 16-1-6 through 16-1-8] . . . [T]hese provisions . . . provide new, expanded statutory tests for determining double jeopardy questions, thereby rendering inapplicable previous Georgia decisions applying only minimum constitutional standards of double jeopardy. These statutory provisions distinguish between two aspects of double jeopardy — first, limitations upon multiple prosecutions for crimes arising from the same conduct (referred to as the procedural bar of double jeopardy); and, second, limitations upon multiple convictions or punishments that may be imposed for such crimes (referred to as the substantive bar of double jeopardy).” Stephens v. Hopper, 241 Ga. 596, 598-599 (247 SE2d 92) (1978).

OCGA § 16-1-7 (a) provides that “[wjhen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other; or (2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.” OCGA § 16-1-7 (b) provides that “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution. ...”

In the instant case, allowing the state to proceed with its prosecution of the felony violation of OCGA § 16-11-108 (a) presents no danger of subjecting Lewis to impermissible multiple convictions. The misdemeanor offense of OCGA § 27-2-25.1 (b) prohibits the failure to report an accidental injury to another while hunting. The felony offense of misuse of a firearm while hunting requires a showing of a conscious disregard of a substantial and unjustifiable risk of injuring another person which results in serious bodily harm to another. The two offenses contain some different elements and require proof of different facts, and thus one offense is not included within the other. Stephens v. Hopper, supra. Further, the two offenses are not intertwined, in that one does not merely represent a specific instance of the general conduct prohibited by the other.

In order to sustain Lewis’s plea of former jeopardy under OCGA § 16-1-7 (b), he had the burden of showing that the proper prosecuting officer at the time of commencing the probate court proceeding knew of the felony offense arising from the same incident that resulted in the misdemeanor charge. This procedural protection applies only to such crimes that are actually known to the prosecuting officer actually handling the proceeding, and the burden is on the defendant to show that knowledge on the part of the proper prosecuting officer. Baker v. State, 257 Ga. 567 (361 SE2d 808) (1987). In the instant case, there could be no showing of knowledge of an actual felony charge against Lewis at the time of the probate court proceeding, because Lewis had not yet been charged with the felony offense. Had the district attorney known of or participated in the probate court proceeding, and known of the impending felony charge against Lewis, perhaps the procedural protection of OCGA § 16-1-7 (b) may have been invoked. See McCrary v. State, 171 Ga. App. 585 (320 SE2d 567) (1984). However, there is no indication that the district attorney had even been aware of the probate court proceeding, until after the fact. Accordingly, Lewis’s plea of former jeopardy could not be sustained pursuant to OCGA § 16-1-7 (b). Anderson v. State, 200 Ga. App. 530 (408 SE2d 829) (1991).

Decided February 1, 1993.

McCracken K. Poston, Jr., for appellant.

Roger Queen, District Attorney, for appellee.

Allowing the state to proceed with the prosecution of Lewis for the felony offense does raise some concerns. “The first policy underlying the double jeopardy bar is to prevent harassment of the accused by successive prosecutions or the threat of successive prosecutions.” State v. Estevez, 232 Ga. 316, 318 (206 SE2d 475) (1974). There is no indication of any intention of harassment in this case, but from Lewis’s perspective he is not spared any trouble nonetheless. Also, there is the possibility of Lewis’s guilty plea to a misdemeanor offense, which had some common elements with the felony offense subsequently charged, being used against Lewis in the prosecution of the felony charge. Nevertheless, as discussed above, we are unable to conclude that Lewis’s plea of former jeopardy was sustainable under the controlling statutory provisions governing successive prosecutions and multiple convictions.

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


text:
    A92A2196.
    ROLLINS et al. v. SOUTHERN MORTGAGE COMPANY.
    (427 SE2d 581)
   Blackburn, Judge.

On May 27, 1992, the appellee, Southern Mortgage Company, filed a dispossessory action against the appellants, seeking possession of premises which had been foreclosed upon earlier. The appellants answered the petition on June 8, 1992, at which time the Clerk of the state court informed them that the matter was scheduled for trial on June 17, 1992. In their answer, the appellants asserted that the foreclosure had been stayed under the automatic stay provisions of the United States Bankruptcy Code, and they submitted a copy of their motion to convert a Chapter 13 proceeding to a Chapter 7 proceeding, which had been filed with the United States Bankruptcy Court on May 4, 1992. Consequently, on June 10, 1992, the state court ordered that the dispossessory action be stayed until further order of the court.

However, on June 17, 1992, the state court tried the case and entered a judgment the following day, ordering issuance of a writ of possession for the appellee. Although we are without benefit of any transcript of the trial, counsel for the appellants was present and participated in the proceeding. It is undisputed that during the proceeding, it was adduced that the Bankruptcy Court had lifted the automatic stay, with regard to the appellee’s claim against the appellants, before the appellee had filed the dispossessory action.

1. On appeal, the appellants contend that the trial court erred in trying the case because the court’s previous order staying the dispossessory action had never been lifted. However, “[d]uring the term at which a judgment or ruling is made, the judge, in the exercise of his own discretion to correct errors and to promote justice, has plenary power to amend, modify, revise, supplement, or even supersede, revoke, or vacate such previous judgment or ruling.” Shockley v. Henslee, 114 Ga. App. 227, 228 (150 SE2d 689) (1966); see OCGA § 15-1-3, generally. The fact that the trial judge, who was the same judge who had ordered the stay, proceeded to try the case on June 17, 1992, after being advised that the automatic stay had been lifted by the Bankruptcy Court, was sufficient indication that the stay in the dispossessory proceeding was lifted. The subsequent judgment ordering issuance of a writ of possession should confirm the vacation of the stay. The appellants also have made no showing of harm in having to proceed with the trial as scheduled.

2. The appellants next contend that the trial court erred in lifting the stay of the dispossessory action, on the grounds that although the automatic stay had been lifted in their Chapter 13 proceeding, the conversion to a Chapter 7 proceeding reimposed the automatic stay. The only authority relied upon by the appellants, however, does not support their position. In In re State Airlines, 873 F2d 264 (11th Cir. 1989), the court held that conversion of a Chapter 11 proceeding to a Chapter 7 proceeding did not resurrect an automatic stay that had been lifted previously. The appellants provide no persuasive reason why the same result should not obtain with regard to a conversion from Chapter 13 to Chapter 7. In In re Campos, 128 B. R. 790 (Bkrtcy. C. D. Cal. 1991), a Bankruptcy Court specifically found that conversion from Chapter 13 to Chapter 7 did not create a new automatic stay. The appellee suggests that the appellants’ own authority loses their case for them, and we agree.

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

Decided February 1, 1993.

The Williams Firm, Yolanda W. Favors, for appellants.

Germano, Kimmey & Cheatwood, J. Steven Cheatwood, for appellee.


text:
    A92A2243.
    TAYLOR v. CHESTER et al.
    (427 SE2d 582)
   Blackburn, Judge.

Richard Taylor, the appellant, appeals from the denial of his motion under OCGA § 9-11-60 (d) to set aside a judgment entered against him. The alleged “nonamendable defect” appearing on the face of the record is the lack of notice to him of the assignment of the case for trial as required by OCGA § 9-11-40 (c).

The relevant and undisputed facts are as follows: The appellees, the Chesters, filed a complaint against the appellant to set aside a deed and for damages on September 19, 1990. The appellant received service of the complaint at an address shown on the Sheriff’s Entry of Service Form as Route 1, Box 1491, Taimo, Georgia. The appellant hired an attorney, and the attorney filed an answer and counterclaim on the appellant’s behalf. The attorney subsequently filed a Notice of Intent to Withdraw from Representation with the court on July 1, 1991, indicating that “[sjervice of notices may be made upon Richard Taylor at his last known address of Suite 386, 3192 Atlanta Highway, Athens, Georgia 30606.” On July 9, 1991, appellant’s attorney filed a Request to Withdraw as attorney of record, again specifying that the appellant’s “last known address ... is Suite 386, 3192 Atlanta Highway, Athens, Georgia 30606.” In a letter of July 22,1991, addressed to the judge concerning the scheduled pre-trial conference, the appellant’s attorney included the appellant’s address on Atlanta Highway and copied the appellant in order to notify him of the pre-trial conference that had been scheduled for August 9, 1991. The appellant did receive the July 22, 1991 letter and attended the pre-trial conference unrepresented. The appellant also appeared at the September 1991 term of the Jackson County Superior Court and obtained a continuance for the purpose of retaining new counsel.

The Superior Court’s pre-trial calendar for the “March 2nd Term, 1992” was mailed to the appellant on January 24, 1992, at Route 1, Box 1491, Taimo, Georgia 30575. On February 10, 1991, the appellant called the court and informed the court that he was in Kansas City, but would like the case placed on the trial calendar. However, the record does not show that the defendant was informed of the March 2, 1992 calendar at that time. He was informed that he would receive a trial calendar in the mail notifying him of the trial date. The case was placed on the trial calendar for the March 2, 1992 term and the calendar was mailed to the appellant on February 13, 1992, but was not mailed to the proper address contained in the court records. The record indicates that the calendar sent to the appellant was returned on February 18, 1992. The appellant, at that time, was pro se. The appellant never received the trial calendar and the clerk took no action to resend the calendar and it was placed in the record which the court had at the time the case was called.

No further attempt was made by the court to notify the appellant of the trial date or to supply him with a calendar. On March 9, 1992, the appellant contacted the judge’s secretary to find out when the case would be tried and was told that the case had been tried the previous week before a jury. The jury returned a verdict against the defendant for approximately $60,000 in actual damages and $40,000 in punitive damages. On April 22, 1992, the appellant filed a motion to set aside the judgment under the provision of OCGA § 9-11-60 (d) and the motion was subsequently denied by the trial court on June 8, 1992. We granted the appellant’s application for discretionary appeal.

In his sole enumeration of error, the appellant asserts that the trial judge erred by refusing to grant his motion to set aside the judgment entered against him on the grounds that appellant did not have notice of the trial. We agree.

As this court has stated in Shelton v. Rodgers, 160 Ga. App. 910 (288 SE2d 619) (1982), “ ‘[a] judgment or order based upon a trial or hearing entered against a party without notice to that party of the trial or hearing is subject to a motion to set aside where the lack of notice appears on the face of the record. (Cits.)’ [Cit.]” Id. at 911. In this case, as in Shelton, the record shows that the trial calendar was sent to an incorrect address and was subsequently returned. It further appears that the failure of the appellant to receive notice of the assignment of the case as required by OCGA § 9-11-40 (c) was not due to his failure to inform the court of his correct address. In fact, the appellant’s former attorney informed the court of the appellant’s last known address on July 1, 1991, in his Notice of the Intent to Withdraw From Representation, on July 9, 1991, in the actual Request to Withdraw, and on July 22, 1991, in a letter concerning the pre-trial conference. A simple review of the record by the clerk would have revealed the change in the appellant’s address. The clerk had a duty to notify the appellant of the assignment of his case to the calendar and notify the court that the trial calendar that had been forwarded to the appellant had been returned. In addition, the judge, through a review of the record, should have been cognizant of the returned calendar when he proceeded with trial. “Under these circumstances, to hold that this lack of notice to appellant is not a nonamendable defeet appearing on the face of the record requiring that the judgment against him be set aside under [OCGA § 9-11-60 (d)] would punish appellant for the oversight of the clerk.” Shelton v. Rodgers, 160 Ga. App. at 911.

Decided February 1, 1993.

Kardos, Warnes & McElwee, James C. Warnes II, for appellant.

John T. Brown, for appellees.

Although the trial court relied on Redding v. Raines, 239 Ga. 865 (239 SE2d 32) (1977), in denying the appellant’s motion, we find that Redding is factually distinguishable. In Redding, the movant did receive notice of the assignment of his case to a trial calendar by letter from his former counsel, in which counsel requested that the case be placed on the next jury calendar. The Redding court found that the letter, that was admittedly received by the appellant, was sufficient notice since the letter indicated that the case would be placed upon the next jury calendar, which by law was set to begin the second Monday of the following March. However, in the present case, the record shows that the appellant did not receive notice that his case was assigned to a trial calendar, and was specifically told by court personnel that he would receive a trial calendar notifying him of his trial date. Therefore Shelton is controlling.

As the record in this case shows that there was a total lack of notice to the appellant of the assignment of his case to a trial calendar, we find that the trial court erred in denying the motion to set aside the judgment.

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


author: McMurray, Presiding Judge.

text:
    A92A2047.
    LANPORT, INC. v. RELIANCE INSURANCE COMPANY.
    (427 SE2d 584)
   McMurray, Presiding Judge.

Murray Ohio Manufacturing Company (“Murray”) brought an action against Lanport, Inc. (“Lanport”), alleging that Lanport is in the trucking business; that Lanport agreed to deliver a load of Murray lawnmowers from Lawrenceburg, Tennessee to Atlanta, Georgia and that the lawnmowers were stolen while en route to Atlanta due to the negligence of Lanport’s truck driver. Specifically, Murray alleged that the cargo was stolen when Lanport’s truck driver left the trailer and the cargo unattended at a vacant lot for approximately three hours. Lanport admitted that it agreed to deliver Murray’s lawnmowers to Atlanta via truck and that the cargo was stolen while en route to the Atlanta destination, but denied that the cargo was lost due to the negligence of its truck driver. Lanport filed a third-party complaint against Reliance Insurance Company (“Reliance”), alleging that Reliance insured the cargo under a liability insurance policy and that Reliance refused to pay the loss and claimed the cargo was not covered because it was not “in due course of transit” when it was stolen. Reliance admitted these allegations and that the “term ‘due course of transit’ is not defined in the policy of insurance. . . .” Reliance later filed a motion for summary judgment. The trial court subsequently entered an order granting summary judgment, finding that “the goods were not ‘in due course of transit’ when the driver left them to tend to personal business [and that] the contract of insurance did not cover the goods while they were left at the empty lot.” This appeal followed. Held:

Decided February 3, 1993.

Chamlee, Dubus & Sipple, Gustave R. Dubus III, for appellant.

Drew, Eckl & Farnham, Paul W. Burke, Brooks B. Powers, Clark & Clark, Fred S. Clark, for appellee.

The issues presented before the superior court and argued on appeal relate to the proper construction of an insurance policy. However, neither the insurance policy nor pertinent provisions of the insurance contract are included in the record. The parties merely stipulate that Reliance denied Lanport’s claim because the stolen lawnmowers were not “in due course of transit” at the time of the loss.

“The movant has the burden to prove the non-existence of any genuine issue of material fact. ...” Haire v. City of Macon, 200 Ga. App. 744, 746 (409 SE2d 670). In the case sub judice, Reliance failed to present evidence of the insurance contract at issue. Consequently, the trial court’s order granting Reliance’s motion for summary judgment must be reversed. Rivergate Corp. v. BCCP Enterprises, 198 Ga. App. 761, 762 (403 SE2d 65).

Judgment reversed. Cooper and Blackburn, JJ., concur.


text:
    A93A0038.
    TAYLOR v. THE STATE.
    (427 SE2d 587)
   McMurray, Presiding Judge.

Defendant was convicted of armed robbery and possession of a firearm by a convicted felon. Following the denial of his motion for a new trial, defendant appealed. Held:

Decided February 3, 1993.

Robert M. Bearden, for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Howard Z. Simms, Assistant District Attorneys, for appellee.

1. Defendant contends the trial court erred in failing to exclude pre-trial confrontation evidence. We disagree.

“ ‘Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. The totality of the circumstances must be viewed to determine if there is a “likelihood of misidentification which offends against due process and ‘the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation.’ [Cit.]” Yancey v. State, 232 Ga. 167, 169 (205 SE2d 282).’ Towns v. State, 136 Ga. App. 467, 468 (1) (221 SE2d 631) (1975).” Hood v. State, 199 Ga. App. 774, 775-776 (406 SE2d 120). Viewing the totality of the circumstances, we find no likelihood of misidentification by the witnesses in this case. Defendant was apprehended and positively identified by the witnesses within several hours of the robbery. The witnesses had ample opportunity to view defendant when the crime was committed and the description that they gave to the police was accurate. In sum, the pre-trial identification of defendant was reliable; the witnesses were not precluded from identifying defendant in court. Hood v. State, supra at 776.

2. The evidence was more than sufficient to enable any rational trier of fact to find defendant guilty of armed robbery and possession of a firearm by a convicted felon beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed. Cooper, J., concurs. Beasley, J., concurs in judgment only as to Division 1.