author: Smith, Judge.

text:
    A98A2449.
    ALTERNATIVE HEALTH CARE SYSTEMS, INC. et al. v. McCOWN.
    (514 SE2d 691)
   Smith, Judge.

Shelley McCown brought this action against Alternative Health Care Systems, Inc., d/b/a Peachtree Hospice (“AHC”), Sandra H. Yates, R.N., and Judith Ann Musco, R.N., among others, seeking damages for trespass to and mutilation of her husband’s body, intentional infliction of emotional distress, negligence per se in violating OCGA § 31-23-6, wanton failure on the part of AHC to train and supervise its employees, punitive damages, and bad faith penalties. McCown contended that AHC personnel wrongfully instructed an eye bank to remove her deceased husband’s eyes after she had refused permission, then concealed their actions from her and falsified records pertaining to the eye removal.

After the first portion of a bifurcated trial under OCGA § 51-12-5.1 (d), the jury completed a special verdict form declining to award “special damages” and awarding “compensatory damages” against AHC, Yates, and Musco. The jury also found that the conduct of AHC justified the award of punitive damages. After the punitive damages phase of the trial, the jury returned a verdict against AHC for punitive damages, but declined to find specific intent to harm McCown. See OCGA § 51-12-5.1 (f). The motion for new trial by AHC, Yates, and Musco and the motion for judgment notwithstanding the verdict by AHC were denied; they appeal, asserting eleven enumerations of error. Finding no error, we affirm.

1. While appellants assert the trial court erred in denying their motions for judgment on the pleadings, summary judgment, directed verdict, and j.n.o.v., they present no record references, argument, or citation of authority on this enumeration in their brief, and it is therefore deemed abandoned. Court of Appeals Rule 27 (c) (2). To the extent that the issue of sufficiency of the evidence arises in other enumerations of error, the standard of appellate review for the denial of motions for directed verdict and j.n.o.v. is the “any evidence” test. Ruben’s Richmond Dept. Store v. Walker, 227 Ga. App. 867 (1) (490 SE2d 536) (1997). Appellants must show that there was no conflict in the evidence as to any material issue and that the evidence introduced, with all reasonable deductions therefrom, demanded a verdict in their favor. Union Planters Nat. Bank v. Crook, 225 Ga. App. 578, n. 2 (484 SE2d 327) (1997).

2. In a series of enumerations, appellants raise multiple contentions concerning McCown’s failure to prove damages. First, they contest the award of punitive damages because it was foreclosed by an award for damages to the peace and feelings of McCown under OCGA § 51-12-6. Second, appellants claim damages under OCGA § 51-12-6 were not recoverable. Third, appellants contend special damages could not be awarded. None of these claims has merit, largely because of appellants’ failure to provide a special verdict form quantifying the damages awarded by the jury on McCown’s multiple causes of action.

(a) Appellants contend the trial court erred in allowing a verdict for punitive damages to be considered by the jury when an award was made under OCGA § 51-12-6 for a claim in which the “entire injury is to the peace, happiness, or feelings” of McCown. In essence, they complain that McCown received a double recovery. See Southern Gen. Ins. Co. v. Holt, 200 Ga. App. 759, 768 (5) (409 SE2d 852) (1991), rev’d in part on other grounds, 262 Ga. 267, 270 (2) (416 SE2d 274) (1992). But Holt also recognizes that a jury may award different measures of damages on multiple claims if the evidence establishes several distinct torts. Id. at 768 (5).

As noted above, a number of distinct tortious acts and causes of action were pled separately by McCown. For example, McCown asserted a claim of trespass on her quasi-property rights in the body of her deceased husband, arising from the removal of Mr. McCown’s eyes despite her refusal to consent. See Ga. Lions Eye Bank v. Lavant, 255 Ga. 60, 61 (1) (335 SE2d 127) (1985). She alleged that AHC failed to train and supervise its nursing personnel and that AHC employees later falsified records and refused to communicate with her in an apparent attempt to conceal their wrongful removal of Mr. McCown’s eyes. This court has distinguished between the mishandling of a deceased patient’s body and the intentional infliction of emotional distress by the hospital’s later conduct towards the survivors. They are separate causes of action. See McCoy v. Ga. Baptist Hosp., 167 Ga. App. 495 (306 SE2d 746) (1983).

While the jury’s award theoretically could have been based entirely on a claim of injury to the peace and feelings of McCown, it is equally possible that the jury awarded compensatory damages and punitive damages on one of McCown’s other claims or on a combination of claims, as recognized by Holt, supra.

(b) Similarly, appellants contend that McCown was required to make an election before trial between damages under OCGA § 51-12-6 and special damages. But, as noted above, McCown asserted multiple claims against appellants based upon different evidence. Several times during the trial, McCown’s counsel laid out McCown’s various causes of action and the measure of damages sought under each one.

Despite these clear indications that McCown was seeking recovery for distinct types of damages on several causes of action, appellants failed to present a special verdict form or object to the form of the verdict on any ground they now present. Their sole objection after the verdict was returned was that punitive damages could not be awarded in the absence of special damages. This is not a correct statement of the law. See generally Holt, supra, 262 Ga. at 270 (2).

In addition, appellants did not object to the verdict form as it was submitted to the jury by the trial court. Although McCown originally requested a more specific verdict form, one was never submitted by any party. The trial court informed the litigants that it expected “we are going to do a blank jury form and the parties will argue what the verdict ought to be,” and the record does not reflect that appellants ever objected to this procedure. Without special interrogatories in the verdict form to distinguish between McCown’s various claims and causes of action, any attempt to determine the jury’s reasoning in calculating its award is futile. Appellants ask this court to speculate as to the findings of fact supporting the verdict, a task we will not undertake. Strong v. Wachovia Bank, 215 Ga. App. 572, 575 (4) (451 SE2d 524) (1994). We also note that the verdict simply found for McCown for compensatory damages in the amount of $418,000. It is not illegal on its face. Appellants did not request special findings in this case and did not object to the verdict form and have therefore waived any complaint of deficiency in the verdict. Id. at 576. See also First Union Nat. Bank v. Boykin, 216 Ga. App. 732, 735 (1) (455 SE2d 406) (1995).

(c) Appellants complain that McCown was improperly allowed to seek special damages. Once again, appellants have presented no record references, argument, or citation of authority for this enumeration, and it is deemed abandoned. But even had it been preserved for review, appellants cannot demonstrate any harmful error because the jury found against McCown on her claim for special damages. See generally Ross C. Shaw, Jr., Inc. v. Reynolds, 221 Ga. App. 548, 549 (2) (472 SE2d 125) (1996).

(d) In the course of appellants’ arguments on damages, they attempt to assert additional claims of error based on the trial court’s instructions to the jury on damages and the preclusive effect of a grant of directed verdict on other issues in the trial. But “[m]atters not enumerated as error will not be considered on appeal. An enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration.” (Citation and punctuation omitted.) William N. Robbins, P.C. v. Burns, 227 Ga. App. 262, 265 (2) (488 SE2d 760) (1997). Accordingly, we do not consider these additional claims.

3. Appellants contend that McCown failed to show evidence that their conduct was the proximate cause of the removal of Mr. McCown’s eyes. But, construing the evidence in favor of the verdict, some evidence of proximate cause was presented. While appellant Musco may have responded affirmatively to a suggestion from appellants’ counsel that the nurse who received McCown’s refusal “equivocated” when she transmitted the information to her, the first nurse denied this. She insisted that she gave Musco the paperwork indicating refusal, and Yates agreed that the form originally indicated a refusal. Other evidence indicated that Musco told the eye bank she had obtained consent. This was sufficient evidence to present the question of proximate cause to the jury.

4. Appellants also contend in several enumerations that the trial court erred in its instructions to the jury. We note that appellants have attempted to include multiple assertions of error in the trial court’s charge to the jury within several other enumerations regarding proof of damages and negligence claims. The attempt to assert multiple errors within these enumerations violates OCGA § 5-6-40.

When, as here, an appellant asserts more than one error within a single enumeration, this court in its discretion may elect to review none, or one or more, of the errors asserted within the single enumeration. This court may elect to treat the remaining assertions of error therein as abandoned.

(Citations and punctuation omitted.) Willis Mining v. Noggle, 235 Ga. App. 747, 748 (1) (509 SE2d 731) (1998). We choose to address only the following contentions.

(a) Appellants contend the trial court erred in instructing the jury on negligence claims. But during the charge conference, appellants’ counsel repeatedly stated that “this is a medical negligence case.” The jury was instructed on medical negligence because of appellants’ insistence that the claims made by McCown amounted to claims of medical negligence. In addition, when appellants objected to this charge after it was given, the trial court pointed out that appellants had “insisted on giving that charge,” and appellants’ counsel acknowledged, “[t]hen it’s invited error.” If there was any error as to the trial court’s charge regarding a negligence claim, it was directly aided and invited by the conduct of appellants. “A defendant cannot complain of a verdict which was brought about by a charge which he had requested. One cannot complain of a failure to charge that is aided by his own trial tactics, procedures, and conduct.” (Citations and punctuation omitted.) Taylor v. State, 195 Ga. App. 314, 316 (4) (393 SE2d 690) (1990).

(b) Appellants’ contention that the trial court created a cause of action for “negligent infliction of emotional distress” by charging the jury on negligence is without merit for the same reason. As discussed in Division 2, above, McCown asserted a claim for intentional infliction of emotional distress, and the trial court correctly instructed the jury that in order to award damages under this theory it must find all four elements of the tort, including intentional or reckless conduct and that the conduct must be outrageous and egregious. The trial court’s charge plainly informed the jury that any such claim could not be based in negligence.

(c) Appellants also complain that the trial court instructed the jury on mental pain and suffering without the requirement of physical injury. It is true that in a claim for negligence, recovery for emotional distress is allowed only when there is some physical impact on the plaintiff, and that impact must be a physical injury. But if “the conduct is malicious, wilful or wanton, recovery can be had without the necessity of an impact. [Cit.]” Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992).

McCown presented evidence that the conduct of AHC and its employees was wilful and wanton. Construed to support the verdict, the evidence shows that when McCown refused permission for the eye donation, the nurse on duty filled out the appropriate form indicating that McCown had refused permission. This nurse also testified that she gave the form to Musco, and she denied saying or doing anything that could have given Musco the impression that permission had been granted. According to the first nurse, the form was later altered by someone else, by inserting additional material and by crossing out the indication that McCown had refused permission and substituting an indication that she had consented. Yates acknowledged that she altered this form “to reflect after the fact what had happened.” Musco testified that such an alteration would be improper and harmful.

When McCown received a “thank you” note from the eye bank, she became concerned and called and visited AHC, but the personnel refused to explain the discrepancy to her and told her they had lost her husband’s file. McCown testified that she eventually spoke to Yates, and Yates told her that a mistake had been made and that she “should get over it, or get on with it.” Yates testified that she was instructed by her supervisor not to have any contact with McCown. This was sufficient evidence of wilful, wanton, and malicious conduct to support the charge.

5. We next consider whether the trial court erred in excluding the testimony of Elizabeth Walker. Walker is an ordained minister of the United Methodist Church. At the time of these events, she was completing her doctoral work and working as a pastoral counselor for Covenant Counseling Institute, which appointed her to AHC’s hospice facility. While McCown and her family were at the hospice, AHC paged Walker and asked her to provide support to the McCown family. Walker testified that she was acting as a chaplain at that time. She testified that her purpose in speaking with McCown and her family was “to provide pastoral counseling, spiritual guidance and support to persons in need who requested it.” After the trial court sustained McCown’s claim of privilege, AHC made a proffer that Walker would contradict McCown’s testimony that she had not considered an eye donation until it was mentioned to her by one of the nurses.

The trial court excluded Walker’s testimony under OCGA § 24-9-22, which provides that “[e]very communication made by any person professing religious faith, seeking spiritual comfort, or seeking counseling to any . . . Christian or Jewish minister, by whatever name called, shall be deemed privileged.” AHC contends this privilege was waived by McCown because her two daughters were present during the conversation with Walker. But Walker testified that she was made available to provide spiritual comfort to “the family.” AHC has cited no authority for the proposition that the clerical privilege is waived by the presence of more than one person seeking spiritual comfort or counseling, and the law on other privileges indicates the opposite. For example, an attorney may consult with two individuals as joint clients, and the privilege exists until those clients’ interests subsequently become adverse. Peterson v. Baumwell, 202 Ga. App. 283, 284-285 (2) (414 SE2d 278) (1991).

AHC also contends that McCown waived the clerical privilege by testifying to her conversations with Walker. Assuming without deciding that the clerical privilege may indeed be waived, but see Security Life Ins. Co. v. Newsome, 122 Ga. App. 137, 141 (176 SE2d 463) (1970) (Evans, J., concurring specially), McCown’s very general testimony that the chaplain met with her family and offered spiritual support and comfort, and her deposition statement, in response to appellants’ questioning, that she was not upset by anything Walker said, do not address in any way the substance of McCown’s conversations with Walker and do not amount to a waiver of the privilege.

In addition, Walker’s testimony is of doubtful relevance. Even if McCown initially considered making an eye donation, she ultimately decided against it and instructed the nurse not to permit it. No evidence was presented that McCown ever gave permission to remove Mr. McCown’s eyes to those responsible for arranging the procedure, or that Walker communicated any statement by McCown to the nurses or was involved in the decision to remove Mr. McCown’s eyes. Under these circumstances, we cannot say that the trial court erred in excluding the testimony.

6. In another enumeration of error, appellants attempt to assert two distinct instances of alleged error: the trial court’s refusal to disqualify McCown’s counsel, and the trial court’s exclusion of testimony regarding counsel’s pre-litigation conduct. As noted in Division 4, above, the attempt to assert multiple errors within an enumeration violates OCGA § 5-6-40. We choose to address only AHC’s arguments concerning disqualification of counsel.

The trial court did not err in refusing to disqualify McCown’s counsel on the basis of alleged misconduct in interviewing former employees of AHC. This allegation is controlled adversely to appellants by our recent decision in Sanifill of Ga. v. Roberts, 232 Ga. App. 510 (502 SE2d 343) (1998). In Sanifill, this Court noted that Standard 47 of Rule 4-102 of the Rules & Regulations of the State Bar of Georgia forbids counsel to interview a party he knows to be represented by counsel. Id. While this provision has been construed by the Supreme Court of Georgia to forbid the interview of current employees of a corporate party, it does not include former employees. Supreme Court of Georgia Formal Advisory Opinion 94-3 interpreted Standard 47 to mean that a lawyer may properly contact and interview former employees of an organization that is represented by counsel to obtain nonprivileged information relevant to litigation against the organization provided, if the lawyer discloses the identity of his or her client and the former employee consents. Since the record shows that these conditions were met, no violation of Standard 47 has been shown. Id. at 512.

Appellants make other claims regarding alleged misconduct of McCown’s attorneys during interviews with Musco and Yates and their eventually unsuccessful attempts to obtain affidavits. But “[t]he ultimate determination of whether an attorney should be disqualified from representing a client in a judicial proceeding rests in the sound discretion of the trial judge. [Cits.]” Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga. App. 573, 574 (1) (377 SE2d 15) (1988). Appellants have not demonstrated an abuse of discretion in the trial court’s refusal to disqualify opposing counsel. See Stephens v. Ivey, 212 Ga. App. 407, 409-410 (4) (442 SE2d 248) (1994).

7. Finally, we decline to find that the jury’s award of damages in the amount of $418,000 is excessive.

A heavy appellate burden lies on a defendant to establish that a damage award either is inadequate or excessive within the meaning of OCGA § 51-12-12. In particular, appellate courts should be hesitant to second-guess verdicts where the damage award is based in any significant part on pain and suffering. This duty becomes most onerous when the jury is not required to render a special verdict as to damages.

Decided March 16,1999

Reconsideration denied March 30,1999

Kellogg, Saccoccia & Sigelman, Edward H. Kellogg, Jr., Steven W. Saccoccia, Christopher J. McFadden, for appellants.

Silfen, Segal, Fryer & Shuster, William R. Lester, Jeannine M. van der Linden, for appellee.

Joiner v. Lane, 235 Ga. App. 121, 127 (5) (508 SE2d 203) (1998). As noted above, appellants did not submit a special verdict form and have not enumerated error as to the form of the verdict.

Moreover, an excessive or inadequate verdict is a mistake of fact rather than of law and addresses itself to the discretion of the trial judge who, like the jury, saw the witnesses and heard the testimony. In fact, the trial court’s approval of the verdict creates a presumption of correctness which is not to be disturbed absent compelling evidence. ... Of course, the appellate court may set aside a jury verdict under OCGA § 51-12-12 (a), but the threshold is extremely high. Our role is not to enter the jury box. The jury made its award in its enlightened conscience and based upon the evidence agreed to by all concerned. Its verdict stands.

(Citations and punctuation omitted.) Moody v. Dykes, 269 Ga. 217, 221-222 (6) (496 SE2d 907) (1998).

Judgment affirmed.

Johnson, C. J., and Barnes, J., concur.

       We note that appellants have failed to follow Court of Appeals Rule 27 (c) (1), requiring that the sequence of argument in their brief follow the order of the enumeration of errors and be numbered accordingly. Appellants have divided their argument into sections that are not numbered and do not correspond with their enumeration of errors. At least two enumerated errors appear wholly unsupported by record references, citations, or argument. We nevertheless have attempted to address appellants’ arguments to the extent they can be discerned.

       The propriety of a trial court’s ruling on summary judgment, however, is moot after verdict and judgment. Self v. Hall, 233 Ga. App. 330, 331 (503 SE2d 918) (1998).

       In response to appellants’ counsel’s question, “So she equivocated?” Musco responded, “Huh-huhNo indication was given by the court reporter as to whether this was a positive or negative response.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A99A0399.
    SCANLON v. THE STATE.
    (514 SE2d 876)
   Johnson, Chief Judge.

Patricia Scanlon was charged with driving under the influence of alcohol to the extent that it was less safe for her to do so, failure to maintain lane, and failure to maintain minimum speed. The trial court granted her motion for a directed verdict of acquittal as to the charges of failure to maintain lane and failure to maintain minimum speed. A jury found her guilty of the DUI charge. She appeals from the judgment of conviction entered on the verdict.

Viewed in a light most favorable to the verdict, the evidence shows: Scanlon was driving her car on Georgia 400. A police officer stopped her after he saw her car moving slowly, causing traffic congestion, and weaving in its lane. Based on her physical appearance and the maimer in which she performed various field sobriety tests, the officer arrested Scanlon for DUI. The officer placed handcuffs on Scanlon, put her in the rear seat of the patrol car, and called a tow truck. Although Scanlon had not been advised of her Miranda rights, the officer read an implied consent notice to her. Scanlon verbally consented to take a chemical breath test and was taken to the local detention center where she was tested on an Intoxilyzer 5000.

Before trial, Scanlon moved to suppress or exclude the breath test results and evidence that she consented to the breath test. Scanlon asserted that admission of this evidence would violate her federal and state privilege against self-incrimination, her state constitutional right of due process, and her statutory right against self-incrimination because she was never advised of her Miranda rights after her arrest. After an evidentiary hearing, the trial court ruled that the breath test results and evidence that Scanlon consented to the breath test were admissible. Scanlon asserts this ruling is error. We disagree and affirm.

1. The privilege against self-incrimination protects an accused only from being compelled to testify against herself, or otherwise to provide the state with evidence of a testimonial or communicative nature. United States v. Wade, 388 U. S. 218, 221 (87 SC 1926, 18 LE2d 1149) (1967). In order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Pennsylvania v. Muniz, 496 U. S. 582, 594 (110 SC 2638, 110 SC 528) (1990). When asked if she would take a chemical breath test, Scanlon replied “yes.” This verbal response was neither testimonial nor communicative in nature; it was neutral in its effect and thus, not protected by the privilege against self-incrimination. See id. at 593-597.

Scanlon’s understanding of the Intoxilyzer test and her consent to take it were not prompted by an interrogation within the meaning of Miranda. See id. at 600-601. The officer questioned Scanlon only as to whether she understood his instructions and wished to submit to the test. “These limited and focused inquiries were necessarily attendant to the legitimate police procedure” for giving implied consent notice, “and were not likely to be perceived as calling for any incriminating response.” (Citation and punctuation omitted.) Id. at 605.

Thus, the absence of Miranda warnings does not require suppression of Scanlon’s consent to the breath test under federal law. Id. at 604-605.

2. Admission of the breath test results did not violate Scanlon’s Fifth and Fourteenth Amendment rights even though she was in custody and no Miranda warnings were given. See Price v. State, 269 Ga. 222, 225 (3), n. 13 (498 SE2d 262) (1998); Morrissette v. State, 229 Ga. App. 420, 421-422 (1) (a) (494 SE2d 8) (1997). The results obtained from a chemical breath test, like the results obtained from a sobriety test or a blood test, are not evidence of a testimonial or communicative nature. See Schmerber v. California, 384 U. S. 757, 765 (86 SC 1826, 16 LE2d 908) (1966); see also United States v. Wade, supra at 221-223; Green v. State, 194 Ga. App. 343, 344 (3) (390 SE2d 285) (1990). Scanlon’s testimonial capacities were not implicated by the chemical breath test. Her participation in the breath test, except as a donor, was irrelevant to the results of the test, which depended solely on chemical analysis. See Schmerber, supra at 765.

3. Scanlon claims that it violated OCGA § 24-9-20 to admit in evidence her consent to a chemical breath test and the results of that test. We find this claim to be without merit.

OCGA § 24-9-20 (a) provides: “No person who is charged in any criminal proceeding with the commission of any indictable offense or any offense punishable on summary conviction shall be compellable to give evidence for or against himself.” OCGA § 24-9-20 is not applicable here because although Scanlon was in custody, she was not charged in a criminal proceeding when she consented to take and took the chemical breath test. See Montgomery v. State, 174 Ga. App. 95, 96 (1) (329 SE2d 166) (1985); see also Keenan v. State, 263 Ga. 569, 572 (2) (436 SE2d 475) (1993).

4. Scanlon contends that the Supreme Court’s holding in Price v. State, supra at 224 (3), requires that her conviction be reversed. We disagree.

The Supreme Court concluded in Price that under Georgia law, Miranda warnings must precede a request to perform a field sobriety test if the suspect is in custody. See id. at 225 (3); accord Turner v. State, 233 Ga. App. 413, 416 (1) (b) (504 SE2d 229) (1998); State v. O’Donnell, 225 Ga. App. 502, 504 (2) (484 SE2d 313) (1997); State v. Pastorini, 222 Ga. App. 316, 317-318 (1) (474 SE2d 122) (1996).

The cases cited by Scanlon involve field sobriety tests. This court is aware that police officers frequently rely upon field sobriety tests to bolster their opinions regarding a suspect’s state of sobriety. Often the principal evidence upon which an officer relies when making a probable cause determination in a DUI case is the result of a suspect’s field sobriety test. During field sobriety testing, an officer gives a suspect various instructions as to how and when to perform the tests and verbal response tests are also frequently used. How accurately a suspect follows testing instructions and performs the tests is generally admissible at trial.

A chemical breath test does not require the same sort of extensive verbal and physical responses, and a chemical test is usually performed after the police have already established probable cause by other admissible evidence.

Unlike cases involving field sobriety testing, this court has never held that Miranda warnings must precede the giving of an implied consent notice to a DUI suspect in police custody. Our state constitution does not prohibit the taking of a blood, urine, breath, or other bodily substance sample from a defendant without her consent, provided the taking of the sample is done under constitutionally acceptable conditions. See Fantasia v. State, 268 Ga. 512, 514 (2) (491 SE2d 318) (1997); Keenan, 263 Ga. at 570; State v. Leviner, 213 Ga. App. 99, 100 (2) (443 SE2d 688) (1994). In the case of Lankford v. State, 204 Ga. App. 405, 406 (1) (419 SE2d 498) (1992), this Court held that a refusal to take a blood-alcohol test was not an act coerced by the officer and thus the refusal was not protected by the privilege against self-incrimination. See also Buchnowski v. State, 233 Ga. App. 766, 768 (2) (505 SE2d 263) (1998). We find the holding in Lankford to be equally applicable to cases where the suspect consents to chemical testing.

Under the Georgia implied consent statutes, Scanlon was given a genuine choice whether to consent to a chemical breath test; she was not coerced or compelled to consent to chemical testing. Thus, even though she was not given Miranda warnings before being given the implied consent notice, her state constitutional right of due process and privilege against self-incrimination were not violated. Compare State v. Mack, 207 Ga. App. 287 (427 SE2d 615) (1993); see Fantasia, supra; Keenan, supra; State v. Highsmith, 190 Ga. App. 838-839 (380 SE2d 272) (1989). In view of the statutory protections provided by our implied consent statutes, we decline to extend the holding in Price, supra, and the similar cases of this Court, so as to require that a Miranda warning precede a request to submit to a chemical breath test when a suspect is in police custody.

5. Scanlon contends that the trial court erred in denying her request that the trial court give a charge to the jury that included an explanation of the requirements for and contents of Miranda warnings, the state’s burden to prove that Miranda warnings were properly given and thereafter waived, the voluntariness of a defendant’s pretrial statement, and the conditions which must be met before a defendant’s post-arrest statement could be considered by the jury. We find no error.

Decided March 17,1999

Reconsideration denied March 30,1999

Banks, Stubbs & Neville, Rafe Banks III, for appellant.

Leslie C. Abernathy, Solicitor, Laura A. Janssen, Assistant Solicitor, for appellee.

First, as determined in Division 1, Miranda warnings were not required before Scanlon was given an implied consent notice and the chemical breath test was performed. It is not error to decline to give a charge not reasonably raised by the evidence. See Lance v. State, 191 Ga. App. 701, 703 (2) (382 SE2d 726) (1989).

Second, although correct as an abstract principle of law, the requested charge was not adequately adjusted to the evidence. Thus, even if the issue had been reasonably raised by the evidence, the trial court did not err in refusing to give the requested charge. See Morrissette v. State, 229 Ga. App. at 425 (3) (a); Haney v. State, 234 Ga. App. 214, 217 (2) (507 SE2d 18) (1998).

Judgment affirmed.

McMurray, P. J, and Ruffin, J., concur.


author: McMurray, Presiding Judge. BEASLEY, Presiding Judge, Eldridge, Judge,

text:
    A97A0890.
    HINSON v. THE STATE.
    (515 SE2d 203)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of trafficking in cocaine, violating the Georgia Controlled Substances Act (possession of cocaine with intent to distribute), and possession of a firearm during the commission of a crime. In a prior appeal, a majority of this Court affirmed the denial of defendant’s motion to suppress and with all participating Judges agreeing we were bound by this Court’s whole court decision in Belt v. State, 227 Ga. App. 425 (489 SE2d 157) (subsequently reversed by the Supreme Court of Georgia in State v. Belt, 269 Ga. 763 (505 SE2d 1)) reversed his convictions because the trial court failed, sua sponte, to give a limiting instruction contemporaneously with the introduction of extrinsic acts or similar crimes evidence. Hinson v. State, 229 Ga. App. 840, 842 (3) (494 SE2d 693). The Supreme Court of Georgia granted certiorari to review that latter ruling and reversed, holding that “[r]egardless of when the defendant wishes the jury instructed on the limited admissibility of similar transaction evidence, it is incumbent upon him to make a timely request to the trial court for such a charge.” State v. Hinson, 269 Ga. 862 (506 SE2d 870) (1998). Held:

1. Division 3 of our prior opinion and our prior judgment of reversal are hereby vacated, and the judgment of the Supreme Court is made the judgment of this Court. Consequently, the trial court did not err in failing to give limiting instructions about the proper purposes for which extrinsic acts or similar crimes evidence is admissible, in the absence of a timely request. Division 1 of our prior opinion is not affected by the decision of the Supreme Court of Georgia. Consequently, our previous affirmance of the denial of defendant’s motion to suppress is adhered to, for the reasons expressed in both the majority opinion and in the special concurrence of Judge Eldridge. Hinson v. State, 229 Ga. App. 840 (1), supra.

2. Reviewing issues not previously considered, defendant first enumerates the general grounds.

Viewed in the light most favorable to the jury’s guilty verdicts, the evidence adduced at trial revealed the following: Defendant was the driver of a rental car in which Officer Byers of the DeKalb County police found a

plastic bag containing a white powdery substance. . . . Also, there was 88 plastic bags containing [suspected] crack cocaine and small individual ziplock bags. There was also a small electronic weight scale. A further check . . . [disclosed] a .45 caliber semiautomatic [pistol]. . . . [T]he magazine was fully loaded. . . . Inside of the trunk [Officer Byers] found a large leather artist portfolio case and that contained a Mossberg 500 Model 12-gauge shotgun, a pump action shotgun. . . . After the defendant was arrested, . . . [he volunteered] one statement to [Officer Byers]. . . . [Defendant] asked [Officer Byers], basically, would [the officer] let [defendant’s female companion] go if he [defendant] told [Officer Byers] that all of the items . . . found [in the car] belonged to him [defendant].

It was stipulated that the substance was cocaine. When police searched the female companion, they found on her person no drugs or drug paraphernalia, no cellular or mobile telephone, no beeper or pager, nor any money. “The net weight [of the largest bag of white powder] was approximately 205 grams, which is a little less than half a pound.” It was “approximately 39 percent pure.” The “small bag containing six small ziplock bags . . . that had chunky material. . . weighed about two and a half grams.” In a subcompact car such as defendant was driving, the semiautomatic pistol was within arm’s reach, even in the glovebox.

This evidence, including defendant’s statement of ownership against his penal interest, is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdicts that defendant is guilty, beyond a reasonable doubt of trafficking in cocaine, possessing cocaine with intent to distribute, and possession of a firearm during the commission of a crime as alleged in the indictment. OCGA § 16-13-31 (a) (1) (trafficking in cocaine); Sims v. State, 213 Ga. App. 151, 153 (3) (444 SE2d 121) (possession with intent to distribute); OCGA § 16-11-106 (b) (4) (possession of a firearm during the commission of a crime involving the possession or the possession with intent to distribute any controlled substance). See also Hinson v. State, 229 Ga. App. 840, 842 (2), supra.

3. Defendant’s third enumeration of error contends the trial court erred in holding defendant’s reasons for striking certain veniremen were not race-neutral and for placing four stricken jurors on the panel. For the reasons below, we agree and reverse.

The Supreme Court of the United States has

held that the equal protection clause prohibits a criminal defendant from engaging in purposeful discrimination on the basis of race in the exercise of peremptory challenges. To evaluate claims that the [S]tate or defendant used peremptory challenges in a racially discriminatory manner, the trial court must engage in a three-step process. The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent. The “ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.”

(Footnotes omitted.) Chandler v. State, 266 Ga. 509 (2), 510 (467 SE2d 562).

It will rarely be the case that a party will admit that his purpose in striking a juror was racially discriminatory. Accordingly, the trial court in most cases must infer discriminatory intent from circumstantial evidence. “The fact-finder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons() will permit the trier of fact to infer the ultimate fact of intentional discrimination, and ... no additional proof of discrimination is required.” (Punctuation and footnote omitted; emphasis in original.) St. Mary’s Honor Center v. Hicks, 509 U. S. 502 (113 SC 2742, 125 LE2d 407, 418-419) (1993). In addition, the court may consider whether “similarly-situated members of another race were seated, on the jury,” or whether “the race-neutral explanation proffered by the strikes’ proponent is so implausible or fantastic that it renders the explanation pretextual.” Turner [v. State, 267 Ga. 149, 151 (2) (476 SE2d 252)].

(Footnote omitted.) McKenzie v. State, 227 Ga. App. 778 (1), 779 (490 SE2d 522).

(a) Defendant is an African-American male who used 11 of 12 peremptory strikes to remove white venire from the panel. The record does not reveal the final composition of the petit jury. The State waived any objection to juror nos. 3 and 7. The trial court accepted defendant’s reason for striking juror no. 8, a white female student who is studying to get a Master’s degree in school counseling as race-neutral. But for juror no. 9, a white male student, defense counsel could only articulate “bad body language with him[, plus] his age and experience or lack of experience. . . .” The trial court noted that other jurors who were similar in age and experience were accepted, and “put [juror no. 9] back on the panel.”

“The opponent of [a peremptory] strike may carry its burden of persuasion by showing that similarly-situated members of another race were seated on the jury. See, e.g., Ford v. State, 262 Ga. 558 (3) (423 SE2d 245) (1992).” Turner v. State, 267 Ga. 151 (2), supra. The trial court in the case sub judice was authorized to conclude that defendant’s articulated racially neutral reason was not being neutrally applied, which is sufficient to authorize a finding of discriminatory intent. McKibbons v. State, 216 Ga. App. 389 (1), 390 (455 SE2d 293).

(b) Defendant next struck juror no. 15, “an older lady ... 45 years old. She used to work with U. P. S. . . . Although she is a homemaker now, she worked with an engineering firm for 13 years. . . .” Defense counsel’s articulated reason for striking this juror was

I just don’t think a housewife belonged on this jury, . . . because of the everyday experiences and being exposed to television and the tabloid news casts. . . . [The trial court ruled that since juror no. 15] has worked for 13 years [outside the home] she has [not] been a homemaker her entire life . . .

and put her back on the jury. Given counsel’s factual inaccuracy (as opposed to lack of knowledge) regarding this juror’s life experiences underlying defendant’s stated racially neutral reason, the trial court was authorized to conclude that stated reason was pretextual.

(c) Juror no. 16 was struck because she is

a 64-year-old [former] teacher whose husband is an insurance auditor [who, in defense counsel’s] experience, is a pro-prosecution . . . juror. . . . [Defense counsel compared this juror to a situation where she was of the same race as juror no. 16] and her husband was a deacon and she were 64 years old, . . . just because [counsel had] had bad luck in the past with deacon’s wives. . . . [The trial court recalled that juror no. 16’s teaching] certificate has expired and now she is a para [professional] with the vision program [giving] eye exam tests to the students. . . . [Juror no. 16 also] said her son as a teenager was arrested for a D.U.I., had a terrible crash and she said it probably saved his life.

Counsel clarified that juror no. 16 “said she works with young children and she is a teacher [,] and this is a drug case.”

The trial court stated it

could accept [a drug-related] rationale if [defense counsel] had asked her as a para professional in the school system does she come in contact with children who use drugs or is there a big drug problem at her school, do kids hang around outside of the school selling drugs or is she aware of any drug problem. It just wasn’t asked and there is no foundation for it.

The trial court further determined that any concern the defense had between this juror’s school responsibilities and drugs was “just speculation], and] put (juror no. 16] back on the panel.”

The trial court’s analysis miscast the ultimate burden of persuasion in a challenge to a peremptory strike from the opponent to the proponent of the strike.

We must keep in mind that the reasonable suspicion of a juror’s impartiality that prompts the exercise of a peremptory challenge need not rise to the level of justifying the removal of a venireman for cause. Henry v. State, 265 Ga. 732 (2) (462 SE2d 737) (1995). We must also keep in mind that the [proponent’s] multiple rationales for the exercise of [this] strike were facially race-neutral and were supported by [sufficient undisputed] facts elicited during voir dire. . . . The [proponent’s] failure to ask [additional] questions does not evidence racial animus.

Turner v. State, 267 Ga. 152-153 (2), supra. Consequently, the trial court in this case clearly erred in concluding the State had met the opponent’s burden of proof in challenging this peremptory strike.

(d) After accepting that “someone in [juror no. 18’s] family is married to a Rockdale officer . . . [as] a pretty valid reason” for exercising a peremptory challenge, the State challenged defendant’s dismissal of juror no. 19, “[who] is 51 years old, lots of life experiences, . . . two children, married, [and] is a manager with the Department of Human Resources.” Defense counsel objected to this juror on the ground that she is “[a] career state employee.”

The trial court determined that no bias on the part of this juror was “demonstrated in the record” and further concluded that the client’s concurrence in dismissing a career state employee “is not sufficient to get [past] a [reverse] Batson [challenge].” Juror no. 19 was then put back on the panel.

Defense counsel’s inference that a career state employee might be an establishment-oriented juror tending to favor the government is neither whimsical nor fanciful, and it is certainly race-neutral. The trial court did not indicate she thought these race-neutral reasons were pretextual, and the State offered no further argument. Moreover, the trial court’s written findings denying defendant’s motion for new trial on this ground erroneously continue to place the onus on the proponent to establish bias during voir dire. Consequently, the record does not authorize a finding that the State, as the opponent of this peremptory strike, met its burden of persuasion to rebut the race-neutral explanation given by defense counsel. The trial court’s reasoning to the contrary again miscasts the ultimate burden of persuasion, which in this case never shifts from the State as the opponent of the strike to establish racially discriminatory intent despite race-neutral explanations.

(e) In each of these two instances, the error in reseating a juror peremptorily struck by the criminal defendant who nevertheless proffered racially neutral explanations for each strike must be deemed presumptively harmful. “Since the [S]tate [for aught that appears of record] failed to meet its ultimate burden of persuasion, the reinstatement of the two jurors resulted in an illegally constituted jury. Therefore, [defendant Hinson] is entitled to a new trial.” Chandler v. State, 266 Ga. 510, supra.

4. “The defendant’s remaining enumerations have been considered and are found to be without merit or to present circumstances unlikely to recur upon any retrial.” Hinson v. State, 229 Ga. App. 842-843 (4), supra.

Judgment reversed.

Smith, Ruffin and Barnes, JJ, concur. Beas ley, P. J., concurs specially. Andrews and Eldridge, JJ., dissent.

BEASLEY, Presiding Judge,

concurring specially.

I concur fully in Division 3 of the majority opinion, but not fully in Division 1, which I do not join although I concur in the ruling. As to Division 2, the court has already decided that the evidence was sufficient to sustain the conviction on all counts, as this was ruled on in Division 2 of the prior opinion and is not affected by the Supreme Court’s reversal. It is res judicata.

With respect to Division 4,1 concur because we are bound by the earlier ruling when the case was first before us. Moreover, even upon reconsideration it is a proper disposition of the remaining enumerations of error.

Eldridge, Judge,

dissenting.

The defendant, an African-American, used 11 out of 12 strikes to remove white jurors. This established a prima facie case for the use of race-based strikes. See, e.g., Russell v. State, 230 Ga. App. 546, 548 (2) (497 SE2d 36) (1998). Further, this Court has concurred with the trial court that two of the defense’s allegedly “race-neutral” explanations for the exercise of such strikes were, in reality, simply pretext, further strengthening the prima facie case.

However, after a strong prima facie case demonstrating the use of race-based strikes and after a demonstration that the defense used allegedly race-neutral explanations as a cover-up for impermissible race-based strikes, this Court then finds that the trial court was unauthorized to find that two additional explanations were pretext. Why? Because “the record does not authorize a finding that the State, as the opponent of [the] peremptory strike [s], met its burden of persuasion to rebut the race-neutral explanation [s] given by defense counsel.” This is wrong.

The determination as to whether the State met its burden of persuasion is the trial court’s, not ours. The evidence was clearly there for the trial court to disbelieve the defense, and the trial court had the authority to do so. In a McCollum challenge, the State’s burden of persuasion need go no further than the prima facie case: “The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination.” St. Mary’s Honor Center v. Hicks, 509 U. S. 502, 511 (113 SC 2742, 125 LE2d 407) (1993); McKenzie v. State, 227 Ga. App. 778, 779 (490 SE2d 522) (1997).

The majority’s determination in the instant case must be examined in light of the above.

1. The defense struck juror no. 16. When asked to explain the strike, defense counsel stated:

Judge, I had a no here for Mrs. Robinson because of a 64-year-old teacher whose husband is an insurance auditor, in my opinion and my experience, is a prosecution witness — a pro-prosecution juror. I mean, you know, if she were white and her husband was a deacon and she were 64 years old, I would say, Judge, you know, just because I have had bád luck in the past with deacon’s wives that isn’t race neutral but in 28 years, I’m not smart, but you know I had to learn one or two things.

The trial court — rightfully — did not accept this explanation.

It was only after the trial court refused to accept the first explanation that defense counsel added that Robinson “was a teacher and she works with young children. . . . So, I mean, this is a drug case.” However, Robinson was a teacher’s aide, not a teacher. Such was a misstatement of the record. Further, she worked with young children in a local school’s vision program, not in the classroom or in counseling. Contrary to the majority’s position, there was no relation to drugs in Robinson’s voir dire testimony, no mention of drugs, and no such reasonable “inference” was raised by her testimony.

Most importantly, and also contrary to the majority’s opinion, the defense initially did not state that she was struck because of any drug-related inference; the defense “had a no for Mrs. Robinson” because defense counsel decided that a white, 64-year-old insurance adjuster’s wife would be pro-prosecution. Based on the prima facie case, the prior improper use of strikes, and the lack of factual support for the second explanation offered when defense counsel’s initial explanation rightfully failed, the record supports the trial court’s ruling. This Court has no authority to reverse the trial court’s legitimate credibility determination that defense counsel’s “race-neutral” explanation for striking Robinson was, in essence, a crock.

2. The defense struck juror no. 19, a 51-year-old white female employee with the Department of Human Resources in the contracts and purchasing department. The explanation was because she was a “career state employee.” That was it. The majority contends that “[d]efense counsel’s inference that a career state employee might be an establishment-oriented juror tending to favor the government is neither whimsical nor fanciful.” However, that is the inference drawn by the majority. Defense counsel never stated such, and the trial court did not draw such inference. The majority raises its own inferences; expands defense counsel’s sole explanation, “career state employee”; and substitutes its own judgment for that of the trial court. However, based upon the prima facie case, the defense counsel’s prior use of pretextual explanations, and defense counsel’s inability to articulate a cogent rationale for striking yet another older white female, the trial court did not err in disallowing the strike. The record supports the trial court’s credibility determination.

3. Finally, the majority holds that “the trial court’s written findings denying defendant’s motion for new trial . . . erroneously continue to place the onus on the proponent to establish bias during voir dire.” However, this is simply inaccurate.

In its order, the trial court found that “[t]he State made a prima facie showing that the defense had discriminated against whites in its peremptory strikes.” Thereafter, the trial court held:

[T]he Court must consider the burden of persuasion on the State, as opponent of the strikes, in reaching a conclusion as to whether defense counsel’s strikes were motivated by discriminatory intent. The Court has considered the State’s burden of persuasion, the content of defense counsel’s explanations, and defense counsel’s demeanor. The Court concludes that defense counsel’s explanations for his strikes were subjective, vague, not based on the juror’s answers on voir dire, and not neutrally applied. It is for these reasons the Court placed four jurors struck by the defense back on the jury.

The trial court placed the burdens exactly where they belonged and evaluated the defense strikes in light thereof. See, e.g., Haynes v. State, 234 Ga. App. 272, 276 (5) (507 SE2d 151) (1998). It just does not get any cleaner than that.

This Court has repeatedly substituted its own evaluation of the striker’s explanations for that of the trial court. In those instances wherein the trial court disbelieves otherwise race-neutral reasons, i.e., McCollum challenges, this Court routinely reverses. Accordingly, the efficacy oí McCollum in Georgia has been seriously compromised. A review of the record in this case shows that this is yet another instance where a conscientious trial judge attempted to follow the law as it relates to McCollum and to hold both parties to that law, as well. “In evaluating the trial court’s findings, this Court must keep in mind the unique perspective the trial court judge has in evaluating the rationdle given by the [striker]. A cold transcript cannot convey all of the subtle nuances of the process of jury selection.” Berry v. State, 263 Ga. 493, 494 (435 SE2d 433) (1993). Yet this Court, again, reverses and substitutes its own judgment as to whether the State met its “burden of persuasion.” It is wrong and I dissent.

Decided March 30,1999

Manning & Leipold, Calvin A. Leipold, Jr., Sharon Smith-Knox, for appellant.

Fitzgerald Hinson, pro se.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Benjamin M. First, Assistant District Attorneys, for appellee.

I am authorized to state Judge Andrews joins in this dissent.

        Hinson v. State, 229 Ga. App. 840, 842 (2) (494 SE2d 693) (1997).

       “[W]here racially-neutral and neutrally applied reasons are given for a strike, the • simultaneous existence of any racially motivated explanation results in a Batson violation.” Lingo v. State, 263 Ga. 664, 667 (1) (c) (437 SE2d 463) (1993); Strozier v. Clark, 206 Ga. App. 85, 87 (5) (424 SE2d 368) (1992).

       “[W]e are not authorized to create an inference of discrimination where none is apparent, and where none has been found by the trial court, to whose findings we must give great deference.” Lingo v. State, supra at 668.

       See, e.g., Malone v. State, 225 Ga. App. 315 (484 SE2d 6) (1997); O’Neal v. State, 226 Ga. App. 224 (482 SE2d 478) (1997); Leeks v. State, 226 Ga. App. 227 (483 SE2d 691) (1997); Gilbert v. State, 226 Ga. App. 230 (486 SE2d 48) (1997); Pickett v. State, 226 Ga. App. 743 (487 SE2d 653) (1997); Smith v. State, 229 Ga. App. 765 (494 SE2d 757) (1997); Smith v. State, 232 Ga. App. 458 (501 SE2d 622) (1998).


author: Beasley, Presiding Judge.

text:
    A98A2352.
    HARPER v. CITY OF EAST POINT et al.
    (515 SE2d 623)
   Beasley, Presiding Judge.

Michael Crook, a city police officer for East Point, sexually assaulted Tawana Harper when over her objection he locked her in the back of his patrol car, stroked her inner thigh, and masturbated in front of her.* Harper sued him, the City of East Point, and the city’s police chief. Because of a bankruptcy discharge, she dismissed the causes of action against Crook. As to the claim of negligent hiring and retention remaining against the city and its police chief (jointly referred to herein as the “City”), the court entered summary judgment in their favor. Harper appeals, claiming evidence shows the City had constructive knowledge of Crook’s propensity to commit this act.

1. The City contends the statute of limitation had run prior to the filing of the complaint. It did not argue this point in its written summary judgment motion or brief or at the hearing but conceded that this was a renewal action under OCGA § 9-2-61.

Nothing in Lau’s Corp. [v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991)], places a burden on a plaintiff to respond to issues which are not raised in the motion for summary judgment or to present its entire case on all allegations in the complaint — even on issues not raised in the defendants’ motion.

Issues not argued in support of the motion for summary judgment will not be considered on appeal where plaintiff could have presented evidence to rebut them. Had the City raised the statute of limitation in its motion, Harper would have had the opportunity to present evidence that this was a renewal action.

2. The City persuaded the trial court that Harper presented no evidence it had constructive knowledge of Crook’s propensity to sexually assault another person. “An employer’s liability for negligent hiring or retention of an employee requires proof that the employer knew or should have known of the employee’s propensity to engage in the conduct which caused the plaintiff’s injury.” Proof of such leaning must consist of evidence substantially related to the injury-causing conduct. Lying about employment qualifications, for example, does not constitute evidence of violent tendencies.

Harper presented evidence from which a jury could find that the City should have known that Crook was prone to committing a sexual assault. Construed in plaintiff’s favor, the evidence shows that prior to hiring Crook the City was aware he had pled guilty to making harassing phone calls to a female companion and had misrepresented in his employment application his relationship to that woman, hiding the incident. After Crook’s hiring, a citizen’s complaint about Crook resulted in an investigation that uncovered three sexually inappropriate encounters between Crook and female citizens.

In the first, Crook, while purporting to conduct an investigation, queried a woman in a parking lot. During the encounter he asked whether she was cold in her spandex shorts and leered at her body. Feeling “eerie,” she walked away, only to have him follow her very slowly in his police car. He approached her again, asking her if she had seen a suspect, to which she replied she had not. She started walking homeward at a fast pace, and he again followed her in his car, staring. She took a back entrance to her apartment complex so he could no longer follow her.

About a month later (again while conducting an “investigation”), he asked a second woman in the same neighborhood whether she was wearing shorts under her nightgown, commented on her tan, inquired if she was married, and remarked that she needed a boyfriend to take care of her. She responded negatively to his inquiries. He called her to his car window and asked her a second time if she was sure she did not need a boyfriend. Later he came to her house to speak to her again when he suspected that she had complained of his conduct and that a formal investigation was underway. She did not pursue the matter further for fear of Crook.

The third woman spoke of an uncomfortable encounter occurring around the same time. While making official inquiries, Crook had tried to look around her door as she stood in her nightgown behind it.

Crook’s conduct, as reported to the City, represented an increasingly aggressive progression of sexual deviancy. Beginning with a guilty plea on making harassing phone calls to a woman, the behavior escalated to asking intimate questions of female citizens, to following a woman in a police car, to repeatedly asking a female citizen if she needed a boyfriend, to trying to peer around a door at a woman in her nightgown — all the time while using his badge and the cover of official police investigation to try to cow these women into submission.

A jury could find that Crook’s conduct gave warning to the City that his behavior reflected an escalating sexual deviancy likely to result eventually in the sexual assault of a female while he was on duty. Significantly, the female officer investigating the matter for the City reported to her superior that based on the standard sex crimes courses in which all officers are trained, she felt Crook’s behavior was a “textbook case” of sexual deviancy and should be investigated further. The male superior ignored the suggestion and simply told Crook not to repeat the behavior. No professional counseling, no reassignment to team him with another officer, no sanction to curb future behavior was imposed. Tragically for Harper, the one-time instruction was insufficient.

Unlike Bunn-Penn v. Southern Regional Med. Corp., prior to the Harper incident Crook did not merely exhibit voyeuristic tendencies. He acted upon those tendencies by harassing women and following one in his car. Moreover, Crook was a police officer, a position that wields enormous power and intimidation over those vulnerable citizens an officer is sworn to protect. The City as his employer owed a higher duty to protect citizens from abuse of that power, a duty which private employers do not share. Under the Georgia Constitution, “[protection to person and property is the paramount duty of government. . . .” Even security employers are expected to exercise greater care in employment decisions. Those responsible for clothing citizens with police power must be even more vigilant.

The court erred in granting summary judgment to the City of East Point on the negligent retention claim.

The negligent hiring claim against the City of East Point and Chief McLendon has no merit, for at the time of hiring the evidence of Crook’s deviancy was, standing alone, insufficient to alert the employer of a potential sexual aggressor. The expert testimony of inadequate investigation was not submitted to the court before the summary judgment hearing, but was filed after the court entered its order. The court properly exercised its discretion to refuse to consider that evidence. Summary judgment on the negligent hiring claim in favor of the City of East Point and Chief McLendon was proper.

3. Chief McLendon asserted official immunity as an additional defense.

The Georgia Tort Claims Act (the “Act”) excludes from its waiver of sovereign [and official] immunity “losses resulting from . . . (t)he exercise or performance of or the failure to exercise or perform a discretionary function or duty on the part of a state officer or employee, whether or not the discretion involved is abused.” OCGA § 50-21-24 (2).

Decided March 30,1999

Wayne B. Kendall, for appellant.

Hollberg, Weaver & Kytle, George M. Weaver, for appellees.

The Act contains a

definition of discretionary function or duty: “a function or duty requiring a state officer or employee to exercise his or her policy judgment in choosing among alternate courses of action based upon a consideration of social, political, or economic factors.” OCGA § 50-21-22 (2).

Hiring, firing, and disciplining an individual as a police officer require the exercise of professional deliberation and judgment. Chief McLendon’s actions in this matter were part of his discretionary governmental functions. Because there was no evidence that Chief McLendon acted maliciously, wilfully, or corruptly, the court did not err in granting summary judgment to him on the negligent hiring and retention claims.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Ruffin, J., concur.

       Crook pleaded guilty to two counts of simple battery (merged) and one count of public indecency with respect to this incident. The court fined him $7,500 with $125 in surcharges and imposed 12 months probation for simple battery and 12 months consecutive probation for public indecency, plus $20 per month for probation supervision. Forty hours of community service and counseling for sexual behavior were special conditions of probation. We note that restitution to the victim could have been ordered. OCGA § 17-14-3. This may have been the only achievable remedy against him for such a terrible ordeal at the hands of a public servant. The victim has medical expenses, not to mention the horror of the experience or the pain of memory. The legislature has “declared [it] to be the policy of this state that restitution to their victims by those found guilty of crimes is a primary concern of the criminal justice system.” OCGA § 17-14-1. Judges have the power to carry out this policy, to implement it, and to assure that it is given meaning in the lives of victims of crime.

        Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995).

        Maxwell v. Mayor &c. of Savannah, 226 Ga. App. 705, 711 (4) (487 SE2d 478) (1997).

       (Footnote omitted.) Grand Union Co. v. Miller, 232 Ga. App. 857, 863 (6) (503 SE2d 49) (1998); Kemp v. Rouse-Atlanta, Inc., 207 Ga. App. 876, 878 (1) (429 SE2d 264) (1993) (“ ‘[a]n employer’s liability for negligent hiring or retention of an employee requires proof that the employer knew or should have known of the employee’s violent and criminal propensities’ ”), quoting Odom v. Hubeny, 179 Ga. App. 250, 252 (2) (345 SE2d 886) (1986).

        Fortune v. Principal Financial Group, 219 Ga. App. 367, 371-372 (1) (465 SE2d 698) (1995).

       Id.; Edwards v. Robinson-Humphrey Co., 164 Ga. App. 876, 880 (298 SE2d 600) (1982).

       227 Ga. App. 291, 294 (2) (488 SE2d 747) (1997).

       See Harvey Freeman & Sons v. Stanley, 259 Ga. 233, 234 (2) (378 SE2d 857) (1989).

       Ga. Const, of 1983, Art. I, Sec. I, Par. II.

        C. K. Security Systems v. Hartford Accident &c. Co., 137 Ga. App. 159, 161 (2) (223 SE2d 453) (1976).

       See Myers v. Barnard, 180 Ga. App. 192, 193 (348 SE2d 733) (1986) (affidavit filed after summary judgment order entered was properly not considered).

        Rhoden v. Dept. of Pub. Safety, 221 Ga. App. 844, 845 (1) (473 SE2d 537) (1996).

        Dept. of Transp. v. Brown, 267 Ga. 6, 7 (1) (471 SE2d 849) (1996).

       See, e.g., Bontwell v. Dept. of Corrections, 226 Ga. App. 524, 527 (4) (a) (486 SE2d 917) (1997) (physical precedent only) (“the operation of a state or county correctional institute ... including the degree of training and supervision to be provided over its officers, is a discretionary governmental function”) (emphasis in original); Holsey v. Hind, 189 Ga. App. 656, 657 (1) (377 SE2d 200) (1988) (“[n]o one, for example, would seriously contend that a decision by a prosecutor on such a matter as hiring or firing a secretary would be anything other than administrative, although such a decision would obviously involve an exercise of judgment or discretion connected with the duties of his office”).

       See Parker v. Wynn, 211 Ga. App. 78 (438 SE2d 147) (1993).


author: Judge Harold R. Banke.

text:
    A99A0063.
    IVEY v. THE STATE.
    (515 SE2d 193)
   Judge Harold R. Banke.

Jermaine Ivey was tried for two counts of aggravated assault and one count of armed robbery. He was acquitted on the aggravated assault charges. Enumerating two errors, Ivey appeals his conviction for armed robbery.

The underlying case arose after the victim and his friend decided to wash the victim’s car on their way out of town for the Fourth of July holiday. While the victim was washing his 1996 white Pontiac Grand Prix inside a carwash bay on Covington Highway, a vehicle with four black males pulled into the adjacent bay. His friend became uneasy after “they looked at us like they was [sic] scoping us out.” One of the men with his face obscured by a bandanna suddenly came around the corner and pointed a shotgun at them. After the victim heard the assailant cock his weapon, and as his friend thought he heard him command, “[g]ive it up, motherf — er,” both men broke away and hid in a ditch next to the carwash. When the victim fled, he left his keys in the ignition because “[a]in’t no car worth dying over.” Less than a minute later, the victim’s friend heard the distinctive sound emitted from the car’s dual tail pipes as it roared away. They immediately contacted police from the service station. Within 20 to 35 minutes, the victim was informed that police had recovered his vehicle and “had the guy.”

At trial, Officer C. A. Williams testified that while on patrol at just after midnight, he observed two men washing a white Pontiac Grand Prix. A little later, Williams saw the Pontiac proceeding on Covington Highway with its lights off. He made a U-turn to follow the Pontiac so he could tell the driver to turn on his lights. After Williams stopped the vehicle, he received a radio call about a carjacking of a Pontiac from a carwash down the street. Williams arrested Ivey, the driver, on the spot.

During the trial, after beginning its deliberations, the jury posed several questions to the court. First, it inquired, “[c]an a person be guilty of aggravated assault but not be guilty of armed robbery or vice versa?” With the agreement of both sides, the court instructed the jury to consider each count separately. Later, the jury sent another note: “[c]an we see copies of Jury instructions? Specifically, the ‘parties to a crime.’ We are confused about the laws related to charges.” The court provided copies of the pattern charge on parties to a crime and told the jury it would take a while to get copies of the entire charge. After resuming deliberations, the jury sent its final note stating, “[w]e would like the rest of the laws — in Jury instructions. Could this be provided while we take a lunch break?” In response to the trial court’s inquiry as to whether the jury wanted the definitions of the various crimes, the foreman twice answered in the affirmative. The court stated, “[w]ell, we’ll undertake to have that for you when you get back from lunch.” The court then dismissed the jury for lunch. After resuming its deliberations, the jury did not pose any further questions to the court. The record is silent as to whether copies of the entire charge were provided to the jury before it returned its verdict. The defense did not interpose any objection that the jury had not been provided with the complete charge. Held:

1. Ivey contends that the trial court erred by failing to provide the jury with copies of the specific jury instructions which it had requested.

Where a transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed at the trial court level under the provisions of OCGA § 5-6-41 (f). Burns v. State, 196 Ga. App. 732 (2) (397 SE2d 19) (1990); Howe v. State, 250 Ga. 811, 814 (2) (301 SE2d 280) (1983). Since this was not done in this case, we cannot review this particular issue. See Zachary v. State, 245 Ga. 2, 4 (262 SE2d 779) (1980). We cannot assume, as Ivey urges, that the trial court did not follow through on its intentions. See Anderson v. State, 262 Ga. 26, 28 (3) (413 SE2d 732) (1992) (trial court may provide copies of instructions to jurors).

Where a jury requests further instructions upon a particular phase of a case, the court in its discretion may recharge the jury in full or only upon the point or points requested. Bowley v. State, 261 Ga. 278, 280 (3) (404 SE2d 97) (1991). But here, notwithstanding Ivey’s claim to the contrary, the transcript does not indicate that the court failed to recharge on any specific legal point that the jury wanted clarified. See Kimmel v. State, 261 Ga. 332, 334 (3) (404 SE2d 436) (1991).

2. Ivey contends that the evidence adduced at trial was not sufficient to sustain the verdict. Ivey points out that the victim could not identify him and claims that his custodial statement exonerated him wherein he said that as he was walking alone by the carwash, a man he knew only as “Killer,” armed with a shotgun, told him to drive the white Pontiac to an Exxon station.

On appeal, the evidence must be viewed in the light most favorable to the verdict, and Ivey no longer enjoys the presumption of innocence. Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995). In essence, Ivey seeks this Court to retry his case, reweigh the evidence, and judge the credibility of the witnesses, which we cannot do. Dismuke v. State, 261 Ga. 254 (1) (403 SE2d 812) (1991); Key v. State, 230 Ga. App. 359, 361 (3) (496 SE2d 497) (1998).

The evidence showed that as the victim was washing his white Pontiac, a black male suddenly pointed a shotgun at him and took the car. Within minutes of that crime, Ivey was arrested driving the victim’s car in an area near the carwash. We conclude that a rational trier of fact could have found Ivey guilty beyond a reasonable doubt of the offense of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Brown v. State, 261 Ga. 184 (1) (402 SE2d 725) (1991).

Judgment affirmed.

Beasley, P. J., and Blackburn, J., concur.

Decided March 30,1999.

Maryann F. Blend, for appellant.

J Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, Neal C. Scott, for appellee.


author: Blackburn, Judge.

text:
    A99A0260.
    ANDERSON v. THE STATE.
    (515 SE2d 195)
   Blackburn, Judge.

Defendant Orpheus Anderson appeals his conviction of two counts (3 and 4) of child molestation, following a jury trial, contending that the evidence was insufficient to support the verdict and that his trial counsel was ineffective. The trial court directed a verdict as to Count 2, and the jury found the defendant not guilty as to Count 1 of the four-count indictment. We affirm.

1.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Punctuation omitted.) Mangham v. State, 234 Ga. App. 567 (507 SE2d 806) (1998).

The evidence reveals that when Anderson went to Gail Tukes’ house for the purpose of buying a drink, he brought his five-year-old niece along with him. Two witnesses testified that Anderson took his niece into the bathroom, where he kept her for close to an hour. Tukes testified that she had to knock on the door to get them to come out of the bathroom. When they did come out, she thought it was strange that she did not hear a toilet flush, and she smelled an odor which she associated with sex. Upon exiting the bathroom, the victim threw up what appeared to be “semen from a man’s ejaculation.” Tukes took the victim back into the bathroom where the victim confided that Anderson “put his ding-a-ling” in her mouth. Tukes testified that the victim’s clothes were disarrayed and that Anderson’s pants were partially unzipped revealing his erect penis.

The examining physician testified that the victim told her that Anderson had “touched [her] pee-pee,” and that she saw his “pee-pee.” The physician stated that the victim’s vaginal area and inner thigh were red and that she found a secretion on the victim’s inner thigh. Although the physician testified that the redness on the victim’s thigh was consistent with problems other than sexual abuse, she determined that the redness combined with the secretions were consistent with some sort of sexual abuse.

Anderson testified that he did not put his penis in the victim’s mouth or touch her in any sexual way. He stated that he was in the bathroom with the victim for 15 or 20 minutes while she used the toilet. He did not recall the victim becoming sick or vomiting. Anderson was charged and convicted under Count 3 of the indictment of placing his penis on the vagina and inner thigh of the victim. He was charged and convicted under Count 4 of the indictment of placing his penis on the vagina of the victim.

Despite [Anderson’s] unequivocal denial that he committed the [molestation], the jury was authorized to find him guilty. It is well settled that it is the prerogative of the jury to accept the defendant’s statement as a whole, or to reject it as a whole, to believe it in part, or disbelieve it in part. In the exercise of this discretion they are unlimited.

(Punctuation omitted.) Cooper v. State, 232 Ga. App. 461, 462-463 (1) (502 SE2d 306) (1998).

The evidence here meets the standard of Jackson v. Virginia, supra. A rational trier of fact could have, found Anderson guilty beyond a reasonable doubt of child molestation as charged in Counts 3 and 4 of the indictment.

2. In his second enumeration of error, Anderson contends that his trial counsel was ineffective in failing to object to witnesses’ opinions and improper testimony.

To be successful with [his] claims of ineffectiveness of trial counsel, [Anderson] must demonstrate that [his] attorney’s performance was deficient and that the deficiency prejudiced [his] defense. [He] must overcome the strong presumption that counsel’s performance was within a wide range of professional conduct and that counsel’s decisions were the result of reasonable professional judgment, the reasonableness of which is viewed at the time of trial and under the particular circumstances of the case. Berry v. State, 267 Ga. 476, 479 (4) (480 SE2d 32) (1997); Roland v. State,.266 Ga. 545, 546 (2) (468 SE2d 378) (1996), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). [Anderson] does not meet [his] burden.

Bagwell v. State, 270 Ga. 175, 176-177 (1) (508 SE2d 385) (1998).

Anderson contends that his trial counsel was ineffective because he failed to object when a witness testified that at the scene Anderson denied abusing the child but that in the witness’s “opinion” he believed that Anderson had. Anderson’s trial counsel testified at the hearing on Anderson’s motion for new trial that he was “about halfway out of [his] seat” to object when the prosecutor interrupted the witness and redirected him. In fact, the prosecutor stated: “Well, despite what your opinion is, please tell us what you saw that night.” Trial counsel determined that he did not want to put more emphasis on the testimony by objecting, especially considering that the prosecutor immediately redirected the witness. Trial counsel further stated that the actions of the witnesses on the night of the incident indicated that they thought Anderson had done something wrong to the victim so that the witness’s testimony regarding his opinion added little. Trial counsel’s testimony indicated that his decision not to object was the result of his reasonable professional judgment.

Anderson also contends that his trial counsel was ineffective for failing to object when a witness testified that the event was difficult to talk about because he loved children. Anderson asserts that such testimony was irrelevant and served to bolster the witness’s testimony. Trial counsel testified that the witness “appeared to be overcome with emotion and having a hard time telling what happened. And it just didn’t strike me as authentic and certainly not something strategically that I would object to.” Trial counsel further testified that he did not believe the jury was buying the show of emotion or that it was helpful to the State. Therefore, trial counsel’s failure to object was a strategic decision.

“The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Punctuation omitted.) Binion v. State, 222 Ga. App. 333, 334 (1) (474 SE2d 208) (1996). In the present case, trial counsel’s testimony is uncontroverted that the errors complained of by Anderson were strategic decisions and not the result of ineffective assistance of counsel.

Judgment affirmed.

Beasley, P. J., and Barnes, J., concur.

Decided March 30,1999

Mark R. Gaffney, for appellant.

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


text:
    A99A0335.
    HENRY v. JONES.
    (515 SE2d 199)
   Blackburn, Judge.

After being found in default, Ella Mae Henry appeals from the judgment awarding damages to Ronald L. Jones following a jury trial on that issue. Henry argues that the trial court erred (1) in failing to grant her motion for j.n.o.v. or motion for new trial, contending that Jones failed to attribute any damages to her, and (2) in allowing Jones to introduce evidence after the close of evidence and after Henry had concluded her summation. We affirm.

On May 16, 1990, Jones filed suit against Ella Mae Henry and her husband, Cliff Henry, asserting the Henrys had converted approximately 350 salvage automobiles and various items of personal property, belonging to Jones, to their own use. The Henrys failed to answer, and Jones took a default judgment against them. The matter proceeded to trial on the issue of the amount of damages, and the jury awarded compensatory damages against both of the Henrys in the amount of $140,273.50 and punitive damages against Cliff Henry in the amount of $87,500. As Cliff Henry did not appeal the judgment, this appeal concerns only the award of compensatory damages against Ella Mae Henry.

1. Henry contends the trial court erred in failing to grant her motion for new trial or motion for j,n.o.v., arguing that Jones failed to attribute any damages to her.

When reviewing a trial court’s denial of a motion for j.n.o.v. or new trial, this Court determines if there is any evidence to support the jury’s verdict. Lofty v. Fuller, 223 Ga. App. 95, 97 (2) (477 SE2d 30) (1996). Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s motions for new trial and j.n.o.v. will not be disturbed.

(Punctuation omitted.) Dept. of Transp. v. Mikell, 229 Ga. App. 54-55 (1) (493 SE2d 219) (1997).

Henry’s sole argument is that Jones was required to offer proof of Henry’s actions which gave rise to the damages. However, when a case is in default the plaintiff is entitled to judgment

as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury, unless the action is one ex delicto or involves unliquidated damages, in which event the plaintiff shall be required to introduce evidence and establish the amount of damages before the court without a jury, with the right of the defendant to introduce evidence as to damages and the right of either to move for a new trial in respect of such damages.

OCGA § 9-11-55 (a). As the case was in default, Henry had admitted each and every material allegation of the complaint, except the amount of damages. Whitby v. Maloy, 150 Ga. App. 575 (1) (258 SE2d 181) (1979).

The complaint alleged Henry “unlawfully seized, detained and converted to [her] own use, the Plaintiff’s entire inventory.” The default established Henry’s liability for the conversion of the inventory of salvage automobiles described therein, and Henry could not dispute liability. See Holland v. Tennyson, 201 Ga. App. 125 (410 SE2d 447) (1991). Thus, at trial, Jones only had to introduce evidence of the value of the inventory. The trial court did not err in denying Henry’s motions.

2. Henry also contends the trial court erred by allowing Jones to introduce evidence after the close of evidence and after Henry had concluded her summation. “It is within the discretionary power of the court to allow the case to be reopened after both sides have closed; and to hear additional evidence; and a liberal practice in this respect is most favorable to the ends of justice.” Newman v. Booker & Co., 133 Ga. App. 209 (1) (210 SE2d 329) (1974). The “admission of evidence is within the sound discretion of the trial court and appellate courts will not interfere absent abuse of that discretion.” (Punctuation omitted.) American Petroleum Products v. Mom & Pop Stores, 231 Ga. App. 1, 7 (3) (497 SE2d 616) (1998). The trial court opened the evidence to admit a box of car titles, bills of sale and receipts for the vehicles which initially had been excluded as duplicative of a list and testimony already before the jury. The court admitted the evidence after counsel argued that Jones could not establish damages based on the list alone. Under these circumstances, the trial court did not abuse its discretion in admitting the evidence, even after the close of the case. Moreover, even if the admission of the evidence was error, it was harmless as admissible evidence of the same fact was already before the jury. See Wilson v. Southern R. Co., 208 Ga. App. 598, 604-605 (4) (431 SE2d 383) (1993).

Decided March 30,1999.

Talley & Darden, David P. Darden, for appellant.

Karen L. Sacandy, for appellee.

Judgment affirmed.

Beasley, P. J., and Barnes, J., concur.


text:
    A99A0453.
    DEREN v. THE STATE.
    (515 SE2d 191)
   Blackburn, Judge.

Eric Deren appeals from his conviction for speeding in violation of OCGA § 40-6-181, following a bench trial, arguing that the trial court erred by denying him the right to assistance of counsel. We find that Deren was deprived of his right to counsel in his misdemeanor criminal prosecution, and we reverse.

Deren was charged with the criminal offense of speeding and subsequently appeared in the City of Atlanta Traffic Court. Deren pled not guilty and proceeded pro se to a non-jury trial. After being found guilty, Deren was sentenced to a fine of $566 and suspended sentence of 12 months confinement.

Deren contends that he was improperly denied his right to counsel during his bench trial.

Although the right to counsel extends to misdemeanor prosecutions where imprisonment may result (Argersinger v. Hamlin, 407 U. S. 25 (92 SC 2006, 32 LE2d 530) (1972)), our Supreme Court has interpreted Argersinger as requiring that a defendant in a misdemeanor criminal prosecution be entitled to [court-appointed] counsel only where the defendant is sentenced to actual imprisonment. Brawner v. State, 250 Ga. 125 (2) (296 SE2d 551) (1982); Johnston v. State, 236 Ga. 370 (3) (223 SE2d 808) (1976).

Decided March 30,1999.

James S. Lewis, for appellant.

Joseph J. Drolet, Solicitor, for appellee.

Capelli v. State, 203 Ga. App. 79 (1) (416 SE2d 136) (1992). Deren’s sentence imposed a fine and suspended sentence, but he was not deprived of his liberty. Therefore, he was not entitled to court-appointed counsel. See Smith v. State, 230 Ga. App. 151, 152 (3) (495 SE2d 624) (1998); Moore v. State, 225 Ga. App. 860, 862 (3) (485 SE2d 552) (1997); Dotson v. State, 179 Ga. App. 233, 234 (3) (345 SE2d 871) (1986).

However, entitlement to court-appointed counsel does not end the inquiry. “A criminal defendant [has] a constitutional right to be defended by counsel of his own selection whenever he is willing and able to employ such counsel.” Burney v. State, 244 Ga. 33, 35 (1) (257 SE2d 543) (1979). A criminal defendant may forfeit his right to counsel by a knowing and intelligent waiver. Jones v. Wharton, 253 Ga. 82 (316 SE2d 749) (1984); Smith, supra. “[S]ince [Deren] pled not guilty and went to trial, the state must also prove that the decision to proceed pro se was made knowingly and intelligently.” Jones, supra at 83.

The record here is devoid of any evidence that Deren intelligently and knowingly waived his right to assistance of counsel. Deren signed a form affidavit prior to entering his plea which stated, in part, “I understand that by entering a plea of guilty or nolo contendere (no contest) I waive . . . [m]y right to the assistance of counsel during trial [and] [m]y right to be represented by a private attorney or by a public defender if I am eligible.” The affidavit addresses the defendant’s right to counsel and the waiver thereof in the context of a guilty or nolo contendere plea. It does not address the waiver of his right to counsel at trial where a not guilty plea is entered. Since Deren pled not guilty, the affidavit does not waive his right to the assistance of counsel at trial, and the State did not otherwise meet its burden.

There is no evidence that Deren knowingly and intelligently waived his right to the assistance of counsel of his own choosing at trial. The proceedings in the trial court were not recorded, and “‘when the record is silent, waiver is never presumed.’” Smith, supra. The judgment must be reversed.

Judgment reversed.

Beasley, P. J, and Barnes, J., concur.

       The sentence was suspended upon Deren’s payment of the fine.


text:
    A99A0747.
    HEHIR v. THE STATE.
    (515 SE2d 406)
    Decided March 30,1999.

      Deming Law Associates, David M. Thomas, for appellant.

      Robert E. Keller, District Attorney, Albert B. Collier, Clifford A. Sticher, Assistant District Attorneys, for appellee.
   Blackburn, Judge.

Dennis Gordon Hehir appeals his conviction, following a jury trial, of possession of methamphetamine. Hehir contends that the trial court erred by allowing his character to be improperly placed into evidence. We affirm.

Hehir asserts that the prosecutor’s questions to him regarding the police officer’s service of a warrant on a separate crime improperly placed his character in evidence. However, although Hehir made a relevancy objection regarding the prosecutor’s question as to why Hehir was at the back window, Hehir never objected on the ground that his character was being placed into evidence. Additionally, Hehir contends that the prosecutor’s questions to him regarding whether he was aware that he would be searched when he arrived at the jail improperly placed his character into evidence. Hehir objected that this question was asked and answered, but he did not raise a character evidence objection. The trial court expressed concern that such a “line” of questioning might put the defendant’s character into evidence; nonetheless, Hehir’s defense counsel failed to object when the trial court specifically allowed the question.

“Because this is a court for review and correction of error, we cannot consider objections to evidence different from those raised at trial.” (Punctuation omitted.) Waddell v. State, 224 Ga. App. 172,174 (480 SE2d 224) (1996). [Hehir’s] failure to raise a character objection at trial precludes us from reviewing this issue. See also Malone v. State, 219 Ga. App. 728 (1) (466 SE2d 645) (1995).

Nash v. State, 225 Ga. App. 10, 11 (2) (482 SE2d 520) (1997).

Judgment affirmed.

Beasley, P. J., and Barnes, J., concur.