author: Phipps, Judge.

text:
    A02A1256.
    YOUNG et al. v. SHELBY.
    (566 SE2d 426)
   Phipps, Judge.

Tony Young and his wife sued Ronnie Shelby and others to recover for injuries inflicted on Young by two bulls owned and raised by Shelby. Shelby moved for summary judgment on grounds that there is no evidence that he had any knowledge the bulls were vicious or dangerous and that Young, in any event, had equal knowledge of the danger posed by the bulls and, therefore, assumed the risk of any injury. The trial court awarded summary judgment to Shelby based on an absence of evidence that he had knowledge of any violent propensities of the bulls. For reasons which follow, we affirm.

“[B]ulls, like other livestock, are not considered to be statutorily vicious animals. Therefore, as a bull is a domestic animal, a bull owner must have some knowledge of the animal’s vicious or dangerous character before he can be held liable for an attack by that animal. [Cit.]”

[S]ome bulls are vicious notwithstanding their classification as domestic farm animals. Nevertheless, it cannot be said as a matter of law . . . that bulls, as a class, are dangerous. . . . Bulls are more dangerous than cows and steers; stallions are more dangerous than mares or geldings; rams are more dangerous than ewes and lambs. However, these animals have been kept for stud purposes from time immemorial so that the particular danger involved in their dangerous tendencies has become a normal incident of civilized life. The virility which makes them dangerous is necessary for their usefulness in performing their function in the socially essential breeding of livestock, and justifies the risk involved in their keeping. Therefore the law has not regarded bulls, stallions and rams as being abnormally dangerous animals. [Cits.]

Both Young and Shelby are experienced cattlemen who were displaying bulls during a beef exposition at fairgrounds in Perry. Young helped unload Shelby’s two bulls from the trailer in which they were being transported into a pen. To accomplish this task, Shelby released the bulls from the trailer, and Young manned the gate of the pen into which the bulls were supposed to run. Instead of entering the pen, however, the first bull collided with a panel on the gate, which broke loose and impaled Young’s upper thigh. After being thrust to the ground, Young was trampled and kicked by the bulls.

Decided June 10, 2002.

Reynolds & McArthur, Bradley J. Survant, for appellants.

Campbell & Campbell, Douglas M. Campbell, Daniel, Lawson, Tuggle & Jerles, William R. Jerles, Jr., for appellee.

Although there is no evidence that Shelby’s bulls exhibited any dangerous or vicious behavior prior to being shown at the fairgrounds, another cattleman attending the exposition testified by affidavit that he personally observed the bulls shortly after Young’s injury, and that they were acting in an inordinately aggressive manner, as shown by their attempts to butt passersby. In the opinion of the affiant, Shelby should not have attempted to show the bulls at the exposition at the time in question. According to Young, Shelby acknowledged that the bulls were “fresh out of the pasture” and “a little bit nervous.”

Although the affiant testified about unusually aggressive behavior by the bulls after they injured Young, there is no evidence of such behavior before the incident. Even assuming a jury could infer from the affiant’s testimony that the bulls did exhibit untoward behavior prior to their release by Shelby, there is no evidence that Shelby had any knowledge of such behavior superior to that of Young. Because the true ground of liability in cases such as this is the defendant’s superior knowledge, and because there is no evidence to support this element of Young’s case, the court did not err in awarding summary judgment to Shelby.

Judgment affirmed.

Andrews, P. J, and Mikell, J., concur.

        Testamentary Trust of Moseley v. Barnes, 245 Ga. App. 817, 818 (538 SE2d 873) (2000).

       Id.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A02A0280.
    McGEE v. THE STATE.
    (566 SE2d 431)
   Ruffin, Judge.

In November 1997, a jury found David McGee guilty of violating the Georgia Racketeer Influenced and Corrupt Organizations (“RICO”) Act. The trial court subsequently granted him permission to file an out-of-time appeal. On appeal, he challenges the sufficiency of the evidence presented to corroborate an accomplice’s testimony, as well as his trial counsel’s effectiveness. He also claims that the trial court erred in admitting evidence at sentencing. For reasons that follow, we affirm.

1. When reviewing the sufficiency of the evidence, we do not weigh the evidence or assess witness credibility. Instead, we view the evidence in the light most favorable to support the jury’s verdict and determine whether a rational trier of fact could find each essential element of the crime charged beyond a reasonable doubt.

Viewed in this manner, the evidence showed that the McGee family was involved in the illicit drug trade. According to McGee’s mother, Katie Mae, she and other family members sold cocaine out of her house in Macon. Katie Mae further testified that McGee supplied the cocaine for the family business, bringing three or four cocaine “cookies” to the house each week. Various family members sold the cocaine and then paid McGee $1,300 per cookie out of the sale proceeds. Katie Mae also indicated that, by 1997, McGee had been supplying cocaine to the family for several years.

Louise Gooden, Katie Mae’s cousin, participated in this enterprise. Like Katie Mae, Gooden testified that McGee supplied the cocaine sold from the house. Ellen McGee, McGee’s sister, similarly told the jury that McGee supplied cocaine for the family’s drug activities during the several years preceding his 1997 trial. Ellen and Gooden also testified that McGee charged his family $1,300 for each cocaine cookie.

On April 16, 1996, Macon police officers executed a search warrant at Katie Mae’s house and found 4.8 grams of cocaine in a bedroom. Police searched the house again on May 16, 1997, and discovered four cookies of crack cocaine hidden in a flower pot. Gooden, who was present during that search, also gave police a bag of cocaine that she had hidden in a trash can. Laboratory tests showed that police seized 96.3 grams of 94 percent pure cocaine from Katie Mae’s home on May 16, 1997.

Gooden testified that McGee supplied the cocaine seized by police on May 16, 1997. Katie Mae similarly testified that McGee brought this cocaine to the house. Although she did not actually observe cocaine in McGee’s possession, Katie Mae saw him with a package, which he gave to Gooden. Gooden then told Katie Mae that McGee had “ ‘brought the stuff.’ ” Katie Mae testified that Gooden made this type of statement to her each time McGee delivered cocaine.

To satisfy its burden of proof in a RICO prosecution, the State must show that the defendant engaged in at least two similar or interrelated incidents of racketeering activity. In this case, the State asserted that McGee and others engaged in ten racketeering activities or predicate acts. With respect to the ninth predicate act, the State alleged that, on or about April 16, 1996, McGee and the others possessed cocaine with the intent to distribute it. For the tenth predicate act, the State alleged that, on or about May 16, 1997, these individuals trafficked in cocaine. In reaching its guilty verdict, the jury concluded that McGee engaged in the ninth and tenth predicate acts.

On appeal, McGee does not challenge the interrelatedness of these acts, attack the evidence supporting the ninth predicate act, or question the applicability of the RICO statute. Instead, he argues that the State presented insufficient evidence to support Gooden’s testimony relating to the tenth predicate act — drug trafficking. Noting that a conviction cannot stem solely from an accomplice’s testimony, McGee claims that only Gooden’s uncorroborated assertions tied him to the 96.3 grams of cocaine seized from Katie Mae’s home on May 16,1997. According to McGee, because the State failed to corroborate Gooden’s testimony, it did not sufficiently prove his participation in the tenth predicate act, undermining his RICO conviction. We disagree.

Although “[a]n accomplice’s testimony as to the identity and participation of the defendant . . . must be corroborated [,] [w]here, as here, more than one accomplice testifies at trial, the testimony of one accomplice may be corroborated by the testimony of the others.” This corroboration need only be slight and may be circumstantial. Ultimately, the jury decides the sufficiency of the corroborating evidence.

Gooden testified that McGee supplied the cocaine seized from the house on May 16, 1997. Katie Mae similarly testified that McGee provided this cocaine. On cross-examination, Katie Mae admitted that she did not actually see McGee with the cocaine. Nevertheless, she saw him with a package and then observed that package in Gooden’s hand, and Gooden told her that McGee had “ ‘brought the stuff.’ ” Furthermore, both Katie Mae and Ellen McGee testified that McGee supplied the cocaine used in the family drug business in 1997.

Citing Brookshire v. State, McGee argues that Gooden’s statement to Katie Mae must be disregarded as nonprobative hearsay. Although not addressed by the parties or the court, the statement appears to fall within the co-conspirator exception to the hearsay rule. Even without that statement, however, Katie Mae’s testimony about the package McGee gave Gooden, as well as the general testimony that McGee supplied the family with drugs to sell in 1997, sufficiently corroborated Gooden’s testimony connecting McGee to the 96.3 grams of cocaine seized from the house on May 16, 1997.

2. McGee also argues that he received ineffective assistance of counsel at trial. To succeed in this claim, he must prove “(1) that his trial counsel’s performance was deficient, and (2) that but for this deficiency the outcome of the trial would have been different.” In so doing, McGee must overcome the strong presumption that trial counsel performed within the wide range of reasonable professional conduct and that any challenged conduct might be considered sound trial strategy.

Following a hearing on McGee’s motion for new trial, the trial court concluded that McGee received effective assistance of counsel. We will not reverse that decision absent clear error, and, as discussed below, we find no error in this case.

(a) McGee claims that trial counsel deficiently failed “to subpoena and call as witnesses various persons who would have rebutted the State’s theory that he was involved in his family’s drug dealing.” At the hearing on McGee’s motion for new trial, counsel testified that he interviewed many of these witnesses, but determined that their potential testimony was not particularly strong. He concluded, therefore, that he did not want to waive the right to open and conclude closing arguments by calling the witnesses. This type of strategic decision, made after a thorough investigation, is virtually unchallengeable.

Furthermore, even if trial counsel’s performance could be deemed deficient, McGee has not shown prejudice. At the new trial hearing, McGee described how, in his view, these witnesses would have testified at trial. None of the witnesses, however, appeared at the hearing, leaving us only with McGee’s bare allegations regarding their trial testimony.

We cannot assess the prejudicial effect of trial counsel’s failure to call a witness unless the defendant specifically demonstrates how counsel’s failure affected the outcome of his case. And “[w]ithout the testimony of the particular witness, it is impossible for [McGee] to show there is a reasonable probability the results of the proceedings would have been different.” Accordingly, the trial court properly rejected this ineffective assistance claim.

(b) McGee also argues that trial counsel should have stricken from the jury an individual who was represented in an unrelated matter by one of his co-defendant’s attorneys. According to McGee, the juror’s “allegiance” to his co-defendant’s attorney prejudiced him.

We have not found, and McGee has not pointed us to, any evidence in the trial record that such a relationship existed between a juror and his co-defendant’s counsel. At the new trial hearing, trial counsel could not recall any such relationship. Furthermore, McGee has presented no evidence that the outcome of his trial would have been different had trial counsel stricken this juror. As McGee admitted at the new trial hearing, he has never spoken to the juror to determine whether the alleged relationship affected the jury’s deliberations. Thus, the trial court did not err in refusing to find counsel ineffective on this ground.

(c) McGee asserts that the State was vindictive and engaged in prosecutorial misconduct during the trial. This argument does not address his own counsel’s performance. Accordingly, it does not support his ineffective assistance claim.

(d) Next, McGee contends that trial counsel failed to cross-examine Gooden and Ellen McGee adequately. According to McGee, Gooden made a pre-trial statement — presumably to police — indicating that McGee was involved in the drug trade during the 1980s. At the new trial hearing, McGee claimed that this statement was an “outright lie[ ]” because he was incarcerated from 1977 to 1986. In his view, counsel should have impeached Gooden with the statement to expose her as a “liar.”

As an initial matter, McGee has not pointed us to any portion of the record containing this statement, which apparently was not introduced at trial. Furthermore, even if the statement exists, we cannot find counsel deficient in not using it to impeach Gooden. The statement would have introduced evidence of McGee’s long-term involvement with drugs, lending no help to his defense. Furthermore, the impeachment strategy McGee suggests would have informed jurors about his prior incarceration, another subject trial counsel reasonably avoided.

McGee also argues that counsel should have established, through cross-examination, that Ellen McGee was incarcerated at various times in 1996 and 1997 and thus lacked knowledge about the ninth and tenth predicate acts. Ellen testified at trial that she was not present during the April 16,1996 search and was incarcerated on May 16, 1997. The record further shows that she gave no specific testimony relating to the events at Katie Mae’s home on these dates. The jury, therefore, knew that Ellen lacked knowledge about the incidents involved in the ninth and tenth predicate acts. Accordingly, McGee has not shown that trial counsel performed deficiently in cross-examining Ellen or that the cross-examination prejudiced his defense.

(e) McGee also contends that counsel erred in not requesting that the trial court instruct jurors to disregard Ellen’s testimony, given her lack of knowledge regarding the ninth and tenth predicate acts. McGee has cited no legal basis for such a jury charge. Furthermore, Ellen readily admitted that she knew nothing about the April 16, 1996 and May 16, 1997 incidents, and she did not try to testify about them. Trial counsel’s failure to request such a charge was neither deficient nor prejudicial.

(f) McGee claims that trial counsel did not sufficiently prepare for trial. Although he asserts that trial counsel met with him only twice, failed to interview witnesses, and “just didn’t do anything,” counsel testified at the new trial hearing that he had six or more pretrial meetings with McGee, filed various motions on his behalf, developed a defense theory, and spoke with potential witnesses before trial. Counsel determined, however, that these witnesses would not be helpful to McGee’s defense.

Charged with resolving the conflict in the testimony, the trial court was authorized to believe trial counsel and reject McGee’s claim that counsel essentially did nothing to prepare for trial. And, in light of counsel’s testimony about his pre-trial activities, the trial court did not clearly err in finding that he adequately prepared McGee’s defense.

Furthermore, McGee has not shown that, had counsel prepared differently, the jury would have reached another result. McGee complains, for example, that trial counsel did not interview various witnesses who would have testified that he was a drug user. He makes no effort, however, to show how such testimony would have benefit-ted him or altered the jury’s verdict, especially given that several trial witnesses testified that he used cocaine. Thus, McGee has not shown prejudice.

(g) According to McGee, trial counsel erroneously informed him that, if he testified, the defense would lose its right to open and conclude closing arguments. McGee asserts that he based his decision not to testify on counsel’s statement.

Even if counsel gave McGee erroneous information, however, McGee has not shown that this misinformation — or his resulting decision not to testify — prejudiced him. At the new trial hearing, he did not discuss what his trial testimony would have been or how that testimony would have impacted the significant evidence implicating him in the family drug business. He merely stated that he needed to testify because the charges against him were “kind of heavy.” He thus has not shown any reasonable probability that the outcome of his trial would have been different had he testified.

(h) McGee complains that trial counsel failed to file a notice of appeal or a sentence review application on his behalf. The record shows, however, that McGee submitted his own sentence review request and obtained permission to file this out-of-time appeal. Because McGee has not shown how trial counsel’s failure to pursue these post-conviction remedies prejudiced him, he has not met his evidentiary burden for establishing ineffective assistance of counsel.

3. Finally, McGee argues that the trial court erred in sentencing him as a recidivist under OCGA § 17-10-7. At the sentencing, the State introduced evidence that McGee had previously been convicted of felonies in federal and state court. The trial judge subsequently sentenced McGee to the maximum penalty of twenty years, although he ordered that McGee serve five of those years on probation. McGee now argues that the trial court should not have admitted — or considered — evidence relating to the federal conviction because the State failed to introduce the federal indictment or plea. The record shows, however, that McGee did not object to the use of this conviction at the sentencing hearing. As a result, he waived this alleged error.

Decided June 11, 2002

L. Elizabeth Lane, for appellant.

Howard Z. Simms, District Attorney, Sharell F. Lewis, Assistant District Attorney, for appellee.

Furthermore, the State properly introduced evidence of the prior state felony conviction, which, McGee admits, obligated the trial court to impose the maximum 20-year sentence under the RICO Act. McGee now speculates that the trial court might have probated a greater portion of his sentence if the federal conviction had been excluded. Yet, he has pointed to no evidence that the federal conviction impacted his sentence or that this alleged evidentiary error actually harmed him. Accordingly, this argument presents no basis for reversal.

Judgment affirmed.

Pope, P. J, and Barnes, J., concur.

       See OCGA § 16-14-1 et seq.

       See Askew v. State, 248 Ga. App. 230 (1) (546 SE2d 15) (2001).

       See id.

       See Davitte v. State, 238 Ga. App. 720, 723 (1) (a) (520 SE2d 239) (1999).

       See OCGA § 24-4-8.

       (Citations omitted.) Hanifa v. State, 269 Ga. 797, 808-809 (7) (505 SE2d 731) (1998).

       See Wilbanks v. State, 251 Ga. App. 248, 259-260 (8) (554 SE2d 248) (2001).

       See id. at 259.

       230 Ga. App. 418, 420 (496 SE2d 757) (1998) (physical precedent only).

       See OCGA § 24-3-5.

       See Wilbanks, supra.

        Blackford v. State, 251 Ga. App. 324, 328 (4) (554 SE2d 290) (2001).

       See id. at 328-329.

       See id. at 329.

       See id.; see also Williams v. State, 248 Ga. App. 316, 322 (7) (a) (546 SE2d 74) (2001) (“Because opening and closing argument is a valuable right, the trial court was authorized to conclude that the preservation of that tactical advantage was a reasonable strategy for [the] defense attorney to pursue.”).

       See Swint v. State, 250 Ga. App. 573-574 (552 SE2d 504) (2001).

       Id. at 574; see also Baker v. State, 251 Ga. App. 377, 380 (2) (554 SE2d 324) (2001) (“Where the missing witness does not testify at the motion for new trial hearing, no evidence supports the claim that the witness was crucial to the defense or that the witness could have been located.”); Webb v. State, 249 Ga. App. 214, 217 (2) (547 SE2d 767) (2001) (because defendant failed to call allegedly exculpatory witnesses at new trial hearing, he “ ‘provided no evidence, other than bare allegations, that the testimony of these witnesses would have changed the outcome of the proceedings’ ”).

       See Randolph v. State, 225 Ga. App. 324 (484 SE2d 1) (1997).

       See Huntley v. State, 271 Ga. 227, 231 (7) (518 SE2d 890) (1999); Randolph, supra at 324-325.

       See Thurman v. State, 207 Ga. App. 96, 98 (2) (427 SE2d 69) (1993) (physical precedent only).

       Under Georgia law, a defendant does not waive his right to open and conclude closing arguments simply by testifying in his own behalf. See OCGA § 24-9-20 (c).

       See Harden v. State, 239 Ga. App. 700, 701 (2) (521 SE2d 829) (1999); Godfrey v. State, 227 Ga. App. 576, 577 (2) (489 SE2d 364) (1997).

       See OCGA §§ 17-10-7 (a); 16-14-5 (a).

       See Jenkins v. State, 235 Ga. App. 547, 550 (3) (c) (510 SE2d 87) (1998); Godfrey, supra; Scott v. State, 216 Ga. App. 692, 695 (4) (455 SE2d 609) (1995) (physical precedent only); cf. Manker v. State, 223 Ga. App. 3, 6 (5) (476 SE2d 785) (1996) (sentence reversed where transcript specifically showed that trial judge relied on inadmissible evidence in sentencing defendant as a recidivist under OCGA § 17-10-7), questioned on other grounds, Gillman v. State, 239 Ga. App. 880, 882 (2) (a) (522 SE2d 284) (1999).


author: Pope, Presiding Judge.

text:
    A02A0656.
    BEAM v. KINGSLEY et al.
    (566 SE2d 437)
   Pope, Presiding Judge.

On the afternoon of September 4, 1999, a car driven by Donna Beam collided with Scott Kingsley’s motorcycle. Kingsley was killed in the collision. The facts surrounding the collision were undisputed. Beam pulled in front of Kingsley. Although Beam did not see the motorcycle approaching, there was no allegation that Kingsley was speeding or that he was negligent in operating his vehicle. The evidence showed that Beam had been drinking that afternoon, and her blood alcohol level tested at 0.12, above the legal limit. She later pled guilty to a felony charge of vehicular homicide.

Kingsley’s wife, Susan, filed a wrongful death suit, individually and as the administratrix of her husband’s estate. The case proceeded to trial, and although Beam testified that a dip in the road had prevented her from seeing Kingsley’s motorcycle approaching, the jury found liability and awarded damages in the amount of $1,416,000 for the value of Kingsley’s life, and $2,584,000 to Susan Kingsley, as administratrix. Beam filed this appeal following the denial of her motion for new trial or remittitur.

1. Beam first asserts that the evidence was insufficient to support the amount of the jury’s verdict. She argues that the evidence showed that Kingsley’s funeral bills amounted to only $1,693.86. In addition, the medical evidence showed that Kingsley’s death occurred within one or two minutes after impact and that he may have lost consciousness prior to that. Beam asserts that the $2,584,000 award for funeral expenses and pain and suffering was excessive in light of these facts. Beam also notes that Susan Kingsley’s attorney requested $2,584,000 in lost wages on the wrongful death claim. Beam suggests that the jury may have mistakenly awarded the wrongful death damages to Susan Kingsley in her capacity as admin-istratrix. She requests that the portion of the judgment awarding damages to Susan Kingsley as administratrix be reversed and remanded for new trial on the issue.

“The amount of damages returned by a jury in a verdict for pain and suffering due to alleged negligence is governed by no other standard than the enlightened conscience of impartial jurors.” (Citations and punctuation omitted.) McCormick v. Harris, 253 Ga. App. 417, 419 (3) (559 SE2d 158) (2002). And the defendant has a heavy burden under OCGA § 51-12-12 (a) to establish that such a damage award is excessive: “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.” (Citation omitted.) Alternative Health Care Systems v. McCown, 237 Ga. App. 355, 362 (7) (514 SE2d 691) (1999). Therefore, for this Court to overturn the jury’s verdict, it must be “so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake [by] the jurors.” (Citations and punctuation omitted.) Turpin v. Worley, 206 Ga. App. 341, 343 (1) (425 SE2d 895) (1992). Moreover, because the trial court approved the verdict in denying Beam’s post-trial motion, a presumption of correctness arises that will not be disturbed absent compelling evidence. E-Z Serve Convenience Stores v. Crowell, 244 Ga. App. 43, 47 (2) (535 SE2d 16) (2000).

The evidence showed that Kingsley was aware of the impending collision and swerved to avoid it. Kingsley suffered broken ribs and a collapsed lung in the collision. He survived for as much as two minutes after the crash and could be heard choking and gasping for breath as he drowned in his own blood. This evidence supported an award of damages for pain and suffering, and we cannot say that the amount of damages was so flagrant under the circumstances as to shock the conscience. Nor has Beam provided us with any compelling evidence to justify overturning the jury’s verdict.

Decided June 11, 2002.

Downey & Cleveland, Y. Kevin Williams, for appellant.

2. Beam next asserts that the trial court erred in granting Susan Kingsley’s motion in limine to exclude background evidence concerning the reason for Beam’s alcohol consumption on the day of the accident. Beam made a proffer at trial to show that the weekend of the accident also marked the second anniversary of the remission of her breast cancer and that she had been celebrating her successful battle with cancer with friends that day. She asserts that this evidence should have been admitted because the nature of the claims against her placed her character into evidence. She states that she should have at least been allowed to explain her actions. Beam also argues that this evidence also would have demonstrated that her actions were not wilful and wanton.

“The admission or exclusion of evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. However, the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.” (Citations and punctuation omitted.) Homebuilders Assn. of Ga. v. Morris, 238 Ga. App. 194, 195 (518 SE2d 194) (1999). We find no abuse of discretion in this case.

Generally, the character of a party to a civil action is not an issue, and character evidence is not relevant. Weaver v. Ross, 192 Ga. App. 568, 569 (1) (386 SE2d 43) (1989). An exception to this general rule exists where the party’s character is a material issue under the pleadings or where there is evidence that the party threatened to commit a crime. Housing Auth. of Atlanta v. Green, 169 Ga. App. 211, 212 (3) (312 SE2d 196) (1983). Neither exception exists in this case. Beam admitted that she had been drinking prior to the accident. The reason behind her drinking was irrelevant, and it was within the trial court’s discretion to determine that the evidence was irrelevant. Moreover, because Susan Kingsley withdrew her claim for punitive damages prior to trial, whether Beam’s actions were wilful or wanton was not at issue.

Judgment affirmed.

Ruffin and Barnes, JJ, concur.

Cooper & Jones, Lance A. Cooper, Scott B. Cooper, Andrew W. Jones, for appellees.


author: Miller, Judge.

text:
    A02A0710.
    NORRIS v. HENRY COUNTY.
    (566 SE2d 428)
   Miller, Judge.

Henry County fired Anthony Norris when a county track hoe under his supervision became stuck in the mud, requiring great time and expense to extricate and repair. He appealed the termination decision to the county manager, to the board of commissioners, and to the superior court, all to no avail. Pursuant to a petition for a discretionary appeal, the appellant’s request was granted. Following a thorough review of the proceedings, we now affirm on the grounds that he was afforded due process and that some evidence supported the county’s decision to terminate him for cause.

A ten-year employee of Henry County, Norris was serving as a pipe crew foreman when his crew was assigned to clear out a swamp area behind a county building. He directed his track hoe driver to begin clearing the area, but the track hoe soon sank in the mud and became stuck. Over the next two days various efforts to extricate the track hoe were unsuccessful, and on the third day a wrecker finally extricated the now-damaged track hoe.

The next week Norris’s supervisor called him in and gave him a letter of termination based on Norris’s incompetence as exhibited by the track hoe incident and by his long history of job performance problems. Norris appealed the termination to the county manager, who then held a two-day evidentiary hearing with Norris and his attorney present. Based on the oral and written evidence presented as well as . a review of Norris’s personnel records, the county manager upheld the termination. Norris filed a discretionary appeal with the county board of commissioners, which declined to hear the appeal but which moved Norris’s termination date to the date of the county manager’s decision. Arguing that the county did not follow proper procedure and that no evidence supported the termination decision, Norris petitioned the superior court to review the matter. The superior court affirmed the county’s decision, which ruling he now appeals.

On appeal Norris enumerates three errors: (1) the trial court erred in ruling he received due process; (2) the trial court erred in evaluating the case under the “any evidence” standard; and (3) the trial court erred in ruling that there was sufficient evidence to support the termination decision. We hold that the two-day hearing afforded Norris due process, that the “any evidence” standard is the correct standard, and that evidence supported the decision to terminate Norris. Accordingly, we affirm.

1. Under the due process clauses of both the Georgia and federal constitutions, the State “must give notice and an opportunity to be heard to a person deprived of a property interest.” (Footnote omitted.) Camden County v. Haddock, 271 Ga. 664, 665 (1) (523 SE2d 291) (1999). “[A] public employee has a property interest in continued employment for due process purposes when a personnel manual provides that an employee can only be terminated for cause.” (Footnote omitted.) Id. Here the personnel manual contained such a provision.

After giving notice, Henry County afforded Norris a two-day hearing (attended by him and his attorney), in which the county manager received evidence, allowed questions and argument by Norris’s attorney, and reconsidered the termination decision. Such clearly met the demands of due process.

Nevertheless, Norris complains about the timing of the hearing, in that he was not afforded a hearing prior to being terminated. Although due process entitles the public employee to a pre-termination hearing, the employer’s failure to provide one is not a constitutional violation under the due process clause if the employer (as here) provides a later procedural remedy. Camden County, supra, 271 Ga. at 665 (1); see Jones v. Chatham County, 223 Ga. App. 455, 457 (3) (477 SE2d 889) (1996).

Norris next argues that Henry County failed to follow its own personnel manual when Norris’s supervisor gave him the termination letter (effective immediately) without first affording him a personal meeting, in which the supervisor was to provide Norris oral notice of the charge and proposed disciplinary action. At that personal meeting, which was to take place before the imposition of any disciplinary action, Norris under the personnel procedures was to have the opportunity to orally respond. Within three days the supervisor could notify the employee and the county manager in writing of the disciplinary action, to become effective at the time specified in the written notice.

The county failed to follow its own personnel manual procedures when Norris was not afforded the required personal meeting with his supervisor with oral notice and discussion prior to the delivery of the written termination notice. Although we do not condone the county’s actions, the question is whether this failure deprived Norris of his procedural due process rights where the county afforded Norris notice and an opportunity to be heard when he appealed the matter to the county manager. Jones, supra, 223 Ga. App. at 459 (5), is clear that such is not a violation of procedural due process, for the adequacy of due process is governed not by personnel manuals but by case law interpreting the federal and state constitutions, which only require that the employee (even if later) be notified and given an opportunity to be heard. See Camden County, supra, 271 Ga. at 665 (1). Indeed, “if the requirements of due process are met, the employer’s failure to follow all the procedures in the manual does not [even] give rise to an action for breach of contract.” Jones, supra, 223 Ga. App. at 459 (5). Norris’s reliance on Wayne County v. Herrin, 210 Ga. App. 747, 755 (7) (437 SE2d 793) (1993), is misplaced, for in that case no hearing nor any kind of any opportunity to be heard was afforded to any of the terminated employees, and thus the requirements of due process were not met.

The trial court did not err in ruling that Norris received due process.

2. Norris asserts that the standard of review for the superior court was not the any evidence standard but rather a “heavier” substantial evidence standard. On the contrary, the very case cited by Norris in his brief, City of Atlanta Govt. v. Smith, 228 Ga. App. 864, 865 (1) (493 SE2d 51) (1997), explained that under Supreme Court of Georgia precedent, “ ‘in Georgia the substantial-evidence standard is effectively the same as the any-evidence standard.’ [Cit.]” Thus, City of Atlanta expressly overruled Smith v. Elder, 174 Ga. App. 316 (1) (329 SE2d 511) (1985), from which Norris inexplicably quotes at length in his brief. City of Atlanta concluded:

The appropriate standard of review to be applied to issues of fact on writ of certiorari to the superior court is whether the decision below was supported by any evidence. On appeal to this Court, “our duty is not to review whether the record supports the superior court’s decision but whether the record supports the initial decision of the local governing body or administrative agency.” [Cit.]

228 Ga. App. at 865 (1); see Forsyth County v. Childers, 240 Ga. App. 819, 821 (2) (525 SE2d 390) (1999).

The trial court did not err in applying the any evidence standard of review.

3. Applying that same standard here, we hold that some evidence, construed in favor of the county, supported the county manager’s decision to uphold the termination. One example specified in the personnel manual as a ground for termination was “[incompetence or inefficiency in performance of work related duties.” Evidence showed that Norris was responsible for his crew and its equipment, including the track hoe. It was well known by all employees that two county track hoes had previously sunk and been stuck in thé same area and that normal procedure required that pads be laid down to prevent this very sort of circumstance from occurring. Norris proceeded, however, with the operation by using the riskier procedure of merely laying logs down as a mat. The track hoe slipped off the logs and became stuck. He then left the track hoe in the mud overnight, which may have caused the suction to increase. He should have obtained a wrecker sooner to extricate the track hoe.

Decided June 11, 2002.

William F. Mitchell, for appellant.

O’Quinn & Cronin, Michael A. O’Quinn, Donald A. Cronin, Jr., for appellee.

Beyond this particular instance, the county manager also considered Norris’s personnel records, which reflected a long history of poor job performance and poor judgment as a supervisor. Indeed, Norris had been reprimanded more than anyone else in the department. The numerous written reprimands in his file (which did not include several oral reprimands) specified instances of incompetent supervision, employee harassment, insubordination, taking unauthorized leave, and other job performance issues. When combined with the poor judgment portrayed by the recent track hoe incident, these reprimands gave the county manager at least some evidence to uphold Norris’s termination for incompetence.

Judgment affirmed.

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


text:
    A02A0793.
    JOHNSON v. THE STATE.
    (566 SE2d 440)
   Pope, Presiding Judge.

A Chatham County jury found Kevin Johnson guilty of armed robbery, kidnapping with bodily injury, two counts of aggravated assault, burglary, and possession of a firearm during the commission of a crime. On appeal, Johnson claims that the evidence was insufficient to support the verdict. He also claims that the trial court (1) erred in allowing evidence that his father offered to pay the victim to drop charges, and (2) in denying his motions to suppress evidence of drugs and a handgun found in his bedroom by police. He further maintains that he is entitled to a new trial because police failed to disclose exculpatory evidence and because he received ineffective assistance of counsel. We affirm for reasons that follow.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). So viewed, the evidence shows that Joseph Morris and Kenya Mumford went out on October 31, 1999, and returned to Morris’s trailer that evening, where they were met by two men with handguns. Morris recognized Kevin Johnson as one of the men. Morris knew Johnson from playing basketball and from seeing him around the trailer park. Johnson was not wearing a mask. He carried a chrome semi-automatic pistol. The gunmen forced Morris and Mumford to the floor, and Johnson ransacked the trailer looking for money. Johnson found some cash in the closet and then asked Morris where the remainder was. Morris did not answer. Johnson hit Morris on the head with the pistol, knocking him out for a short time. Morris then told Johnson that more money was in his car. Johnson took Morris’s car keys, and the gunmen left in Morris’s car.

1. Johnson claims that the evidence was insufficient to support the verdict. We disagree. Morris identified Johnson as his assailant from a photographic lineup after the robbery, as well as in court. Johnson’s alibi was subject to rebuttal. Viewing the evidence in the light most favorable to the jury’s verdict, we find that any rational trier of fact could have found beyond a reasonable doubt that Johnson was guilty of the charged offenses. See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

2. Johnson claims that the trial court erred in allowing the State to offer evidence of the conduct of Arthur Johnson, his father, after his arrest. Johnson made a motion in limine before trial in which he argued that the statements or actions of his father were independent acts and had no relevance. The trial court allowed the victim to testify that Arthur Johnson called him four or five times and offered him as much as $5,000 to drop the case, although Arthur Johnson denied that he made such an offer. The State can show a defendant’s attempt to influence a witness because it is evidence of consciousness of guilt. See Nguyen v. State, 273 Ga. 389, 398 (3) (543 SE2d 5) (2001). This includes attempts to influence witnesses made through intermediaries. Id. But evidence of a threat or attempt to influence a witness made by a third party must be linked to the defendant in order to be relevant to any material issues. See Fields v. State, 260 Ga. 331, 333 (4) (393 SE2d 252) (1990). In ruling on Johnson’s motion for a new trial, the trial court concluded that Arthur Johnson had been shown to have a very involved presence throughout the legal proceedings against his son. Arthur Johnson offered to protect Morris from retaliation by Johnson and his friends. Arthur Johnson, Johnson, and Johnson’s sister telephoned Morris together. Arthur Johnson admitted to calling Morris several times after the robbery, and to taping a conversation he had with Morris, but then destroying the tape. Morris’ girlfriend testified that Johnson’s “family” threatened to kill her. Furthermore, the defendant Johnson offered Morris $500 directly to drop the case. It was within the trial court’s discretion to allow the State to show the conduct of Arthur Johnson because there was some evidence that Arthur Johnson did not act independently from his son in making the $5,000 offer to drop the case. See Nguyen, supra; McCoy v. State, 273 Ga. 568, 570-571 (5) (544 SE2d 709) (2001).

3. (a) Johnson also argues that the trial court erred in denying his motion to suppress evidence of drugs found by the police in the course of their arrest of Johnson on an unrelated charge. We agree. Sheriff’s deputies executed a search warrant on the house where Johnson lived. The deputies found a chrome or silver semi-automatic handgun in Johnson’s bedroom. They also found cocaine and marijuana.

Circumstances surrounding an arrest are often admissible as part of the res gestae, because the arrest was contemporaneous or closely related in time to the offense and bore a logical relation to the offense. If the circumstances around an arrest are not part of the res gestae and are not relevant and material to the questions in issue, there is no basis for its admission into evidence.

(Citations and punctuation omitted.) Shelton v. State, 252 Ga. App. 444, 448 (3) (556 SE2d 540) (2001). The execution of the search warrant and the arrest at Johnson’s home were unrelated to the crime at issue here. The search and arrest were relevant to show police found a gun in Johnson’s bedroom matching the description of the gun used in the robbery. But we are unpersuaded that the drugs found during the execution of the search warrant were properly admissible. The illegal drugs were not probative to the questions presented at this trial and reflected poorly on Johnson’s character. The State argues that the drugs were admissible as part of the res gestae of the arrest, but fails to take into account that the arrest was for an unrelated offense. Circumstances surrounding an unrelated arrest which are not relevant to the issues being tried and which improperly put the defendant’s character in issue should be excluded from evidence. See Benford v. State, 272 Ga. 348, 350 (3) (528 SE2d 795) (2000); Crosby v. State, 269 Ga. 434, 435 (3) (498 SE2d 62) (1998); Shelton, supra; DeCastro v. State, 221 Ga. App. 83, 85 (1) (470 SE2d 748) (1996) (physical precedent only). It follows that the trial court erred when it failed to grant Johnson’s motion in limine with respect to the illegal drugs found by police in his bedroom.

Despite the trial court’s error, we do not find that a reversal is warranted. “[E]rror alone is not automatically grounds for a new trial but is subject to scrutiny for harmless error.” (Punctuation and footnote omitted.) Humphrey v. State, 249 Ga. App. 805, 807 (1) (549 SE2d 144) (2001). Given the strength of the State’s case, which was primarily based on testimony of a victim who knew Johnson personally and who identified him as the perpetrator from a photographic lineup and at trial, we find that there is no reasonable probability that the results of the trial would have differed if the evidence of the illegal drugs had been excluded.

(b) Johnson also argues that the trial court erred in denying his motion to exclude the chrome semi-automatic pistol found during the search of his bedroom by Bryan County deputies. He argues that the gun was irrelevant and impermissibly put his character into issue. The “admissibility of evidence is a matter which rests largely within the sound discretion of the trial court.” (Citation omitted.) Kellogg v. State, 233 Ga. App. 817, 819 (505 SE2d 794) (1998). “Georgia courts favor the admission of any relevant evidence, no matter how slight its probative value.” Evans v. State, 233 Ga. App. 879, 881 (3) (506 SE2d 169) (1998). The gun found in Johnson’s bedroom matched the victim’s description of the gun used by Johnson in the robbery. This is probative. Johnson shared his bedroom with two other people, but this would go to weight and not admissibility. Although the gun was found in a search and arrest for an unrelated offense, the gun — unlike the illegal drugs — was relevant to the offense charged. Circumstances surrounding an arrest other than for the crime for which a defendant is on trial are not always irrelevant and prejudicial. See Anderson v. State, 236 Ga. App. 679, 683 (4) (513 SE2d 235) (1999). The trial court did not err in admitting the gun into evidence.

4. Johnson claims he received ineffective assistance of counsel. We again disagree. In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Chapman v. State, 273 Ga. 348, 349 (2) (541 SE2d 634) (2001). The standard of review of the trial court’s determination of the effectiveness of counsel is whether the trial court’s findings are clearly erroneous. See Johnson v. State, 266 Ga. 380, 383 (2) (467 SE2d 542) (1996). Johnson claims he provided his trial counsel with the name of Notice Bacon, an alibi witness, but that his trial counsel failed to follow up and contact Bacon. Bacon was not Johnson’s sole alibi witness. Johnson produced four other witnesses. One of the alibi witnesses testified that he went by Johnson’s house to take him to a Halloween party at “Legends,” a nightclub, and the State rebutted this testimony by calling the owner of Legends, who testified that the Halloween party was held on Saturday night because alcohol sales were restricted on Sunday. At the motion for new trial, Johnson showed that Bacon would have testified that he had planned to go with Johnson to the party at Legends on Saturday night and with him to a haunted house party on Sunday evening, but that on both occasions that Johnson chose to stay home with his girlfriend. This testimony, Johnson contends, would have helped explain the State’s rebuttal testimony. Trial counsel, however, did not recall hearing about Bacon, either from Johnson or from the investigator he hired to work the case. And even if Johnson’s trial counsel had been deficient in failing to pursue Bacon, Johnson’s alibi defense, as the trial court noted in ruling on the motion for new trial, “did not turn out to be airtight.” We cannot conclude that if Bacon had testified, the outcome of the trial would have been reasonably likely to be different. See Greeson v. State, 253 Ga. App. 161, 166 (6) (558 SE2d 749) (2002). We find that the trial court did not err in denying Johnson’s motion for new trial on grounds of ineffective assistance of counsel.

Decided June 11, 2002

Zipperer & Lorberbaum, Eric R. Gotwalt, for appellant.

Spencer Lawton, Jr., District Attorney, Jerome M. Rothschild, Jr., Assistant District Attorney, for appellee.

5. Lastly, Johnson claims he is entitled to a new trial because the Garden City Police Department failed to disclose analysis of the fingerprints taken from the victim’s residence. The State is required to disclose information in its possession that is material to guilt or punishment. See Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). At the motion for new trial, defense counsel testified that he received a forensic unit report concluding that no prints found at the crime scene belonged to Johnson. The actual forensic analysis of the fingerprints found at the scene was not turned over to the defense. There were third-party fingerprints in Morris’s trailer that did not belong to Johnson. This is not surprising. We fail to see how, absent additional factors, that the actual forensic analysis of these fingerprints is material to the case. The State never contended that Johnson’s fingerprints were found in the trailer. The trial court concluded that the State’s provision of their forensic unit report to the defense was sufficient. We agree that there was no Brady violation.

Judgment affirmed.

Ruffin and Barnes, JJ, concur.


author: Blackburn, Chief Judge.

text:
    A02A0186.
    BELCHER v. CSX TRANSPORTATION, INC.
    (566 SE2d 370)
   Blackburn, Chief Judge.

In this action based on the Federal Employers’ Liability Act (FELA), Larry Belcher appeals the trial court’s grant of summary judgment in favor of CSX Transportation, Inc., contending that questions of fact remain whether negligent acts attributable to CSX contributed to an injury he received while acting as a train conductor. For the reasons set forth below, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

Viewing the evidence in this light, the record shows that, on the rainy morning of November 16, 1998, Belcher was called to work at the Martin Brower loading facility, where CSX was delivering frozen french fries. At the far end of the loading facility, just where the track begins to run next to it, a “close clearance” sign is posted, warning workers of the proximity between the building and the train cars. Belcher testified that he never saw the sign prior to his accident.

On the morning in question, Belcher was acting as conductor for the french fry delivery, and Terry Carswell was the engineer. During the operations, Belcher rode along on a ladder on one of the cars on the side of the train closest to the loading facility. Carswell sat in the engineer’s seat on the opposite side of the train. Carswell and Belcher could not see each other from their respective positions and communicated by radio.

As he attempted to line up the correct boxcar at the correct loading gate, Belcher ordered Carswell to move forward and climbed onto the side of the train. Belcher stated that, normally, he would have walked on the ground beside the train; however, rainwater had collected on the ground and he had forgotten to wear his rubber boots that day. As the train approached the last gate, it went past both a metal fence and a set of stairs jutting out from the side of the loading facility. Belcher’s testimony indicates that, as he approached the obstructions, he radioed to Carswell to stop the train. Carswell, however, did not stop the train immediately, and, as the train moved ahead, Belcher’s rain jacket snagged on the stairs platform and pulled Belcher off the train ladder. Momentarily suspended, Belcher began to spin, and an open boxcar latch on an approaching boxcar struck him on the side, causing him to topple to the ground.

The latch which Belcher collided with was apparently an open latch on one of the boxcars which he had not previously noticed. Belcher testified that he did not, as a general matter, inspect the cars to determine whether latch handles were open, although he further admitted that it was his job to ensure that there were no protuberances off of the cars before they were moved.

Belcher’s testimony that Carswell did not stop the train when he was supposed to do so creates a question of fact whether negligent actions attributable to CSX contributed in some way to his injuries.

Plaintiffs . . . have a relaxed burden in proving causation in FELA actions. Plaintiffs must only provide a reasonable basis for a jury to conclude that the employer’s negligence played a part in producing the injury for which damages are sought. The test of a jury case is simply whether the proofs justify within reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.

(Citations and punctuation omitted.) Fulmore v. CSX Transp. Furthermore,

the case law is clear that under an FELA action, the standards of liability for negligence are significantly broader than in ordinary common law negligence actions. Slight negligence, necessary to support an FELA action, is defined as a failure to exercise great care, and that burden of proof, obviously, is much less than the burden required to sustain recovery in ordinary negligence actions. The FELA is meant to provide a broad remedial framework for railroad workers and, in light of that purpose, is to be liberally construed in their favor. In other words, trial by jury is part of the remedy in FELA cases.

(Citations and punctuation omitted.) Kelson v. Central of Ga. R. Co.

We note that there are unsworn statements made by Belcher in a recorded conversation with a CSX claims agent shortly after the accident which are inconsistent with his trial testimony. In this conversation, Belcher indicated that Carswell stopped when he was told to do so. Belcher also stated that he saw the hazards which caused his injuries in advance but stayed on the side of the train because he believed he could get past them without incident. In his pre-trial deposition, Belcher was given time to review his statement, and he made a general acknowledgment of the accuracy of this prior statement, although no specifics were discussed. This Court has recently held that the rule of Prophecy Corp. v. Charles Rossignol, Inc. does not apply under these circumstances.

Decided May 31, 2002

Reconsideration denied June 12, 2002

Robertson, Bodoh & Nasrallah, Mathew G. Nasrallah, for appellant.

Casey, Gilson, Williams & Shingler, Sandra Gray, for appellee.

The Prophecy Corp. rule does not apply to unsworn statements. The transcript of the [interview with the insurance adjuster] is not somehow transformed into sworn testimony simply because [Belcher] verified the accuracy of the transcript during his deposition. [Belcher] only verified that the transcript was accurate; he was not under oath when the conversation itself took place.

(Citations omitted.) Robison v. George.

Belcher’s trial testimony that Carswell did not heed his order to stop creates an issue of fact whether CSX’s negligence played a part in his injuries, even if that negligence was only slight. While a jury is free to consider the conflict between Belcher’s unsworn statements and his trial testimony, it may not be considered for summary judgment purposes absent the application of the Prophecy Corp. rule. Accordingly, this case must be heard by a jury.

Judgment reversed.

Johnson, P. J., and Miller, J., concur.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Fulmore v. CSX Transp., 252 Ga. App. 884, 886 (1) (557 SE2d 64) (2001).

        Kelson v. Central of Ga. R. Co., 234 Ga. App. 200, 203 (1) (a) (505 SE2d 803) (1998).

        Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986).

        Robison v. George, 253 Ga. App. 635, 637 (560 SE2d 108) (2002).


author: Ellington, Judge.

text:
    A02A0792.
    FURCAL-PEGUERO v. THE STATE.
    (566 SE2d 320)
   Ellington, Judge.

Following a bench trial on stipulated facts, the State Court of Cobb County convicted Rafael Antonio Furcal-Peguero of driving under the influence, OCGA § 40-6-391 (a) (5). Furcal appeals, contending the trial court erred in denying his motion to suppress the result of a breath test. Finding no error, we affirm.

Before trial, the parties agreed that the arresting officer read Furcal the implied consent notice only in English, despite knowing that Furcal’s native language was Spanish and that a telephonic translation service was immediately available. Furcal moved to suppress the result of the State-administered breath test on the basis that the implied consent notice was not conveyed to him as required by law. At trial, Furcal conceded the issue is controlled adversely to him by State v. Tosar, 180 Ga. App. 885, 888 (350 SE2d 811) (1986), in which we held that the implied consent notice does not have to be translated into Spanish for a Spanish-speaking person. Furcal argued, however, that State v. Tosar should be overruled as unconstitutional or modified to address situations in which translation services are instantly available to the arresting officer. Reserving his challenge to the evidence of his blood alcohol concentration, Furcal stipulated to certain facts, including that he was driving with an unlawful blood alcohol level, and submitted his case to the trial court for decision. The court found Furcal guilty, implicitly denying his motion to suppress under State v. Tosar.

Although the trial court and the parties characterized the proceeding below as a bench trial on stipulated facts, we are concerned that in many material respects the court and the parties considered the proceeding a conditional guilty plea, designed to preserve for appeal Furcal’s legal challenge to State v. Tosar, 180 Ga. App. at 888. In Hooten v. State, 212 Ga. App. 770, 775 (1) (442 SE2d 836) (1994), we overruled Mims v. State, 201 Ga. App. 277, 279 (410 SE2d 824) (1991), and disallowed the conditional guilty plea procedure. See Barber v. State, 231 Ga. App. 176 (2) (498 SE2d 758) (1998); Martin v. State, 214 Ga. App. 388 (448 SE2d 57) (1994). Ordinarily, a defendant waives any error in the denial of his motion to suppress by pleading guilty; therefore, viewing Furcal’s conviction as arising from a guilty plea would preclude this Court from reviewing the denial of his motion to suppress. Thompson v. State, 240 Ga. App. 539, 540 (2) (524 SE2d 239) (2000).

But Furcal expressly proceeded to trial on stipulated facts under the authority of Richards v. State, 269 Ga. 483 (500 SE2d 581) (1998). Under Richards v. State, a defendant may stipulate to facts that would be demonstrated at trial (such as the result of a breath test) and may acknowledge that the stipulated facts would support a conviction of the crime charged on the condition that he may challenge specified pretrial rulings on appeal (such as the denial of his motion to suppress the result of the breath test). Id. at 485-486. This procedure is particularly appropriate in this case, where the trial court was not required to resolve any disputed facts in ruling on the pretrial issues. Cf. id. at 483-484 (trial court was required to resolve disputed facts regarding reading of implied consent notice in denying motion to suppress). Thus, based on Richards v. State, we consider Furcal’s legal challenge on the merits. We urge trial courts, however, not to blur the important distinctions between accepting a guilty plea and finding a defendant guilty following a bench trial.

Where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, we review de novo the trial court’s application of the law to undisputed facts. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

In five related enumerations, Furcal contends the trial court erred in allowing the evidence of his blood alcohol level, based on the following circumstances to which the State stipulated: (1) Furcal’s native language is Spanish and his command of English is marginal; (2) Furcal carried a valid Georgia driver’s license; (3) the State administers the driver’s test to non-English-speaking applicants in the native language of the applicant; (4) the arresting officer read the implied consent notice to Furcal only in English; (5) as a Cobb County employee, the arresting officer had telephonic access to translation services; (6) knowing Furcal was a Spanish speaker and knowing that a telephonic translation service was immediately available, the arresting officer failed to have a translator relay the implied consent notice to Furcal in Spanish; (7) Furcal’s ability to understand that he could refuse the breath test, that evidence of his refusal could be used against him, and that he had a right to an independent test would have been significantly greater if the implied consent notice had been read to him in Spanish; and (8) Furcal agreed to take a breath test. It is also undisputed that Furcal did not request a translator; nor did he request an independent test.

The General Assembly has declared as a matter of law that persons having an illegal blood alcohol concentration “constitute[ ] a direct and immediate threat to the welfare and safety of the general public.” (Emphasis supplied.) OCGA § 40-5-55 (a). “Under the implied consent laws, every driver is deemed to have given his consent to a chemical test for alcohol content, subject only to the duty placed upon an officer to advise the testee that he is entitled to an independent test of his own choosing. Once that duty is fulfilled by the officer, the statutory obligation is satisfied.” (Citations and punctuation omitted.) State v. Webb, 212 Ga. App. 872, 873 (443 SE2d 630) (1994). See OCGA §§ 40-5-55 (a); 40-5-67.1 (b). OCGA § 40-5-67.1 (b) requires the arresting officer to inform the person who has been arrested of his right to an independent test and to inform him that his refusal to submit to State testing may be offered into evidence against him at trial. “OCGA § 40-5-67.1 thus allows the person to withdraw his implied consent by refusing to submit to testing.” Hernandez v. State, 238 Ga. App. 796, 798 (2) (520 SE2d 698) (1999). OCGA § 40-5-55 (b) provides that any person who is “dead, unconscious, or otherwise in a condition rendering such person incapable of refusal shall be deemed not to have withdrawn” his implied consent, thereby allowing the test or tests to be administered.

Furcal contends, inter alia, that State v. Tosar should be overruled or modified because non-English-speaking drivers are denied equal protection of the law in comparison to hearing impaired drivers. OCGA § 24-9-100 et seq. requires police officers to request the assistance of a translator before interrogating a hearing impaired arrestee. A written interrogation may proceed if a translator is not available within an hour. OCGA § 24-9-103 (b) (2). This mandatory requirement extends to DUI arrests. See Allen v. State, 218 Ga. App. 844, 846-847 (463 SE2d 522) (1995) (admission of result of State-administered test reversed due to officer’s failure to request a qualified interpreter for a hearing impaired driver); State v. Woody, 215 Ga. App. 448, 450 (449 SE2d 615) (1994) (exclusion of result of State-administered test due to officer’s failure to request a qualified interpreter for a hearing impaired driver affirmed).

While Georgia law requires a limited accommodation for this immutable physical disability, “a hearing impaired driver does not have greater rights and privileges than a hearing driver.” State v. Webb, 212 Ga. App. at 873-874. “[T]he laws requiring the presence of a qualified interpreter do not vitiate [the] implied consent” of a hearing impaired driver arrested for DUI. (Punctuation omitted.) Id. Because removing drunk drivers from our highways and roads is a critical public safety function, and because the level of alcohol or drugs in a person’s blood, breath, or urine inevitably changes over time, police officers must be able to initiate the evidence collection process without unreasonable delay. See OCGA §§ 40-5-55 (a); 40-5-67.1; State v. Tosar, 180 Ga. App. at 888; Smith v. State, 143 Ga. App. 347, 349 (1) (238 SE2d 698) (1977). As we emphasized in State v. Webb and in State v. Tosar, all drivers are entitled only to be advised of their rights under the implied consent law, that is, to have the implied consent notice read to them. State v. Webb, 212 Ga. App. at 873-874; State v. Tosar, 180 Ga. App. at 888. See Snelling v. State, 176 Ga. App. 192, 193 (1) (335 SE2d 475) (1985) (officer’s testimony that he advised the driver of his implied consent rights is prima facie evidence of compliance). The law does not require the arresting officer to ensure that the driver understands the implied consent notice. State v. Webb, 212 Ga. App. at 873-874; State v. Tosar, 180 Ga. App. at 888.

The result of the State-administered test is admissible in this case because Furcal consented to chemical intoxication tests by driving on Georgia’s roads, because the officer properly advised Furcal of his implied consent rights, and because Furcal did not withdraw his consent. OCGA §§ 40-5-55 (a); 40-5-67.1; 40-6-392; Snelling v. State, 176 Ga. App. at 193 (1). See also State v. Webb, 212 Ga. App. at 873; State v. Tosar, 180 Ga. App. at 888. The trial court did not err in admitting the result of the State-administered breath test.

Decided May 21, 2002

Reconsideration denied June 12, 2002

Head, Thomas, Webb & Willis, William C. Head, for appellant.

Barry E. Morgan, Solicitor-General, Lawrence J. LoRusso, Todd H. Ashley, Assistant Solicitors-General, for appellee.

Judgment affirmed.

Smith, P. J., and Eldridge, J., concur.

       OCGA §§ 40-5-55 (a) (consent to chemical test of blood, breath, or urine implied by act of driving a motor vehicle); 40-5-67.1 (b) (script for implied consent notice); 40-6-392 (a) (3) (right to independent test), (a) (4) (requirement that driver be advised of right to an independent test at time of arrest).

       When Furcal was arrested on June 10, 2000, a per se DUI violation under OCGA § 40-6-391 (a) (5) was defined as driving while having a blood alcohol concentration of 0.10 grams or more. See Ga. L. 1991, pp. 1886, 1891, 1896, § 6 (legal limit set at 0.10 for offenses after April 24, 1991); Ga. L. 2001, pp. 208, 214, 229, § 1-5 (legal limit reduced to 0.08 for offenses after July 1, 2001). The challenged breath test showed Furcal was driving with a blood alcohol concentration of 0.111 grams.

       For example, Furcal’s attorney asked his client, “You understand you are entering a plea on one count of DUI? ... Do you understand there is going to be a plea and from the plea we are going to appeal?” The defense attorney stated that he and the prosecutor worked for months on structuring the agreement. The State agreed to recommend a particular sentence and to enter nolle prosequi as to four other counts. See OCGA § 17-8-3. After hearing the parties’ stipulated facts, the trial court asked, “Then I suppose with this stipulation it is agreed by the parties that the Court should find [Furcal] guilty and sentence him. Is that contemplated between the parties?” The defense attorney responded, “I think [State v.] Tosar compels you to do so, until it is overturned, doesn’t it.” After finding Furcal guilty, the trial court said, “[s]ince this is a bench trial on stipulated facts, it is recognized by the Court that the parties are stancing [sic] their case so that the Court of Appeals can have a fresh look at . . . [State v.] Tosar” The court then stated that it “accept[ed] [Furcal’s] plea as freely [,] voluntarily and understandably entered.”

       OCGA § 40-5-55 (a) provides in pertinent part:
      [A]ny person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for [DUI] or if such person is involved in any traffic accident resulting in serious injuries or fatalities.

       In particular, OCGA § 24-9-103 provides:
      (a) The arresting law enforcement agency shall provide a qualified interpreter to any hearing impaired person whenever the hearing impaired person is taken into custody for allegedly violating any criminal law or ordinance of the state or any political subdivision thereof, (b) (1) Except as provided in paragraph (2) of this subsection, the law enforcement agency shall immediately request a qualified interpreter from the department, and the department shall provide a qualified interpreter. No interrogation, warning, informing of rights, taking of statements, or other investigatory procedures shall be undertaken until a qualified interpreter has been provided; and no answer, statement, admission, or other evidence acquired from the hearing impaired person shall be admissible in any criminal or quasi-criminal proceeding unless such was knowingly and voluntarily given through and in the presence of a qualified interpreter. No hearing impaired person who has been taken into custody and who is otherwise eligible for release shall be detained because of the unavailability of a qualified interpreter. (2) If a qualified interpreter is not available one hour after the hearing impaired person has been taken into custody and a request has been forwarded to the department, the arresting officer may interrogate or take a statement from such person, provided that such interrogation and answers thereto shall be in writing and shall be preserved and turned over to the court in the event such person is tried for the alleged offense.

       Furcal contends the trial court erred in finding that he “knowingly waived his right to additional testing’ under OCGA § 40-6-392. The trial court, however, did not find that Fur-cal knowingly waived his right to additional testing. Further, the admissibility of a State-administered test is not conditioned on the State’s showing of a knowing and intelligent waiver of the “right” to an independent test. Cunningham v. State, 255 Ga. 35, 38 (6) (334 SE2d 656) (1985); State v. Webb, 212 Ga. App. at 873, 874-875; State v. Tosar, 180 Ga. App. at 887; Snelling v. State, 176 Ga. App. at 193-194 (1).

       We note that in State v. Tosar, we accepted the State’s argument that a non-English-speaking driver is “noneommunicative,” that is, “the same as unconscious,” but we declined to base our holding that the State-administered test was admissible on OCGA § 40-5-55 (b). 180 Ga. App. at 887. We reaffirm today (and agree with Furcal) that a non-English-speaking driver is not “in a condition rendering such person incapable of refusal” for the purposes of OCGA § 40-5-55 (b). See also State v. Webb, 212 Ga. App. at 874 (hearing impaired driver’s inability to understand the officer did not constitute a withdrawal of his implied consent). This is an important distinction because, under OCGA § 40-5-55 (b), a law enforcement officer is not required to advise a dead or unconscious driver, or a similarly noncommunicative driver, of his rights under the implied consent law before administering chemical tests. Smith a State, 143 Ga. App. at 349 (1) (semi-conscious and noneommunicative). To the greatest extent possible, every driver suspected of DUI should be given the opportunity to exercise the choice of withdrawing his consent to testing (and suffering the evidentiary consequences) or submitting to the test and requesting an independent test. Requiring law enforcement officers to read the implied consent notice in English to every conscious driver, even those seemingly incapable of understanding spoken English,- may seem like a hollow formality, but it is not. Suppose an officer believes an apparently non-English-speaking driver would not be able to understand the implied consent notice and so forgoes giving the notice. The driver might later claim he could have understood the notice and, if given the notice, he would have withdrawn his consent or requested an independent test. Requiring law enforcement officers to read the implied consent notice in English to every conscious driver relieves those officers of the unreasonable burden of evaluating a driver’s communication ability before testing his breath or blood.
      We wish to clarify one aspect of State v. Tosar. In State v. Tosar, we stated that the driver’s “inability to communicate with the officer brings this case within the meaning of OCGA § 40-6-392 (a) (3). . . . Where the law enforcement officer cannot communicate with the suspect because the suspect cannot speak English, any failure to obtain an additional test is justifiable and the results of the state-administered tests are admissible.” 180 Ga. App. at 888. As we noted in Nelson v. State, 135 Ga. App. 212, 213 (217 SE2d 450) (1975), however, “the state’s justifiable failure or inability to obtain the additional test must logically be preceded by the [driver’s] request for same.” (Punctuation omitted.) See also Smith v. State, 250 Ga. App. 583, 586 (1) (552 SE2d 528) (2001); State v. Vandervoort, 215 Ga. App. 72, 73 (1) (449 SE2d 617) (1994); State v. Buffington, 189 Ga. App. 800, 801-802 (377 SE2d 548) (1989). Because Furcal did not request an independent test, OCGA § 40-6-392 (a) (3) has no application to the analysis of whether the result of the State-administered test is admissible.


text:
    A02A1161.
    ANDERSON v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY et al.
    (566 SE2d 342)
   Phipps, Judge.

Lyle Vincent Anderson, proceeding pro se, sued Georgia Farm Bureau Mutual Insurance Company (GFB) and four of its agents, alleging that they had failed to issue him fire insurance coverage that he had requested and should have received. The trial court granted summary judgment to defendants, and Anderson appeals. We affirm.

The record shows that Anderson contacted GFB for a quote on fire insurance on a dwelling he was building in Ellijay. After appraising the dwelling, agent Branch offered to issue Anderson a policy that would insure the dwelling for a maximum of $45,000. Anderson asked for coverage for his personal property inside the dwelling, but Branch told him such coverage would not be available until construction on the dwelling was complete. Anderson also asked Branch to appraise the dwelling at a higher value, but Branch did not do so. Anderson accepted the policy with a $45,000 limit and no personal property coverage, and he paid the premium.

Shortly after the policy was issued, the dwelling and all personal property inside were destroyed by fire. GFB paid Anderson the policy limit of $45,000, plus $4,250 for damages to the surrounding landscape and to a camper that was on the property.

Anderson claims that, contrary to representations by agent Branch, he could have obtained coverage from GFB for his personal property, as well as a limitation of liability in excess of $45,000. He also sought damages for living expenses he incurred after the fire, bad faith, and various consequential damages. Defendants filed a motion for partial summary judgment on Anderson’s claims for living expenses and damages to his personal property, and a second motion for partial summary judgment on his claims for consequential damages and loss to the dwelling in excess of the $45,000 policy limit. The trial court granted both motions.

1. Citing our decision in Ga. Farm &c. Ins. Co. v. Arnold, Anderson argues that defendants are liable in tort for failing to provide him with the personal property and extra dwelling coverage he requested. In Arnold, three joint owners of a dwelling destroyed by fire sued GFB after it claimed that the insurance policy on the building applied only to one owner’s one-third interest. The owners claimed that GFB’s agent had undertaken to insure the interests of all three, but had failed to do so. Relying on the principle that “[w]here one undertakes to procure insurance for another and is guilty of negligence in his undertaking, he is liable for loss or damage to the limit of the agreed policy,” we ruled that GFB could be held liable for its agent’s failure to procure the promised policy.

That principle, however, does not apply here. Anderson does not allege that GFB promised to provide him with coverage for damages to his personal property or to the dwelling in excess of $45,000. He admitted in his deposition that when he accepted the policy, he knew that it did not include coverage for personal property. He also admitted that he knew GFB would insure the dwelling for a maximum of $45,000. Thus, Anderson’s claim is not the sort recognized in Arnold — where defendants negligently failed to provide coverage they had promised. Rather, his claim is that defendants misrepresented the availability of the coverage he wanted. This claim, however, is not actionable under the facts of this case.

In Williams v. Fallaize Ins. Agency, Williams, who operated a jewelry business, purchased through Fallaize an insurance contract that provided theft coverage, but excluded any theft from an unattended motor vehicle. Six months later, a briefcase of jewelry was stolen from Williams’s unattended car, and the underwriter denied coverage. Williams claimed that “on at least two different occasions she requested that Fallaize find insurance which would cover an unattended vehicle, and that Fallaize falsely represented to her that the coverage was unavailable.” Williams asserted that she relied on this misrepresentation, did not seek such coverage elsewhere, and suffered an unnecessary loss. We held that she failed to exercise due diligence by not shopping the marketplace for the coverage she sought. Accordingly, she had no viable claim for negligent misrepresentation.

Like the plaintiff in Williams, Anderson claims that Branch falsely told him that the dwelling could be insured for only $45,000 and that personal property coverage was not available. Although Anderson asserts that Branch held himself out as an expert, there is no evidence that he sought Branch’s advice as to the appropriate type or amount of coverage he needed. Rather, the evidence shows that Anderson told Branch what he wanted, but Branch said that GFB would not provide it. It was Anderson’s duty to review the policy offered, and “[i]f it was not what he wished to have he could have renegotiated the contract, or, if the company was unwilling to do that, he could have returned it as unacceptable and negotiated a contract with another company.”

Anderson suggests that he was unable to review the policy because he did not receive it until after the fire. But the record shows without dispute that Anderson understood the material terms of the policy before he received the formal document in the mail, he knew that his personal property was not covered, and he knew that the limit on the dwelling was $45,000. Thus, his failure to receive the document before the fire is irrelevant.

Nothing in the record indicates that defendants in any way discouraged Anderson from contacting other insurers to obtain the best coverage he could find. In fact, Anderson testified at his deposition that around the time he contacted GFB, he also solicited rate quotes from one or more other insurers. However, he “preferred Georgia Farm Bureau” for personal reasons. And, although Anderson asserts otherwise, there is no evidence that Branch owed him any fiduciary duty or that their interaction was anything other than arm’s length. Under these circumstances, Anderson has no tort claim based on Branch’s alleged misrepresentation. Anderson understood the nature and amount of coverage GFB was offering, and he chose to accept it. He was equally free to reject it and look elsewhere. Defendants were properly awarded summary judgment on Anderson’s claims for damages to personal property and to his dwelling in excess of $45,000.

2. Anderson claims that summary judgment was erroneously granted on his claims for additional living expenses, consequential damages, and bad faith. We disagree.

Although Anderson claims he was entitled to additional living expenses under the policy, a review of the policy’s declarations page shows that it did not include such coverage. Anderson sought consequential damages due to defendants’ alleged delay in responding to his claims, but under Georgia law, the exclusive remedy for an insurance company’s bad faith refusal to pay a claim is set forth in OCGA § 33-4-6. And penalties for bad faith are not available where, as here, the insurance contract does not provide the coverage demanded.

3. Anderson raises several other challenges, none of which has merit.

First, he contends that the trial judge erroneously required him to procure from another judge who had earlier presided over the case an affidavit explaining the meaning of one of his rulings. However, the record shows that the trial judge merely told Anderson that if he objected to a letter from the earlier judge clarifying his ruling, then Anderson could obtain an affidavit from that judge. Anderson did not object, so he has no basis for complaint.

Second, Anderson asserts that the trial court was unfamiliar with the case and failed to base its rulings on a review of the entire record. However, the court’s orders state that they were made after considering the parties’ arguments and the pleadings, exhibits, and discovery filed in the case. Moreover, there is a legal presumption that the trial court considered the entire record before making its decisions. In any event, we have ruled that both motions for partial summary judgment were properly granted, so Anderson suffered no harm.

Third, Anderson claims that the court failed to police a number of alleged discovery abuses by defendants. But the record is devoid of any discovery-related motions or any court ruling on discovery matters. Accordingly, issues related to discovery are not properly before us.

4. Defendants have moved to strike certain portions of Anderson’s brief as discourteous and disparaging personal attacks on defendants’ counsel. Although argumentative, the language in question is not so discourteous and disparaging as to warrant granting the motion to strike. We therefore deny it.

Decided May 23, 2002

Reconsideration denied June 12, 2002

Lyle V. Anderson, pro se.

Minor, Bell & Neal, Dennis D. Watson, Thomas D. Weldon, Jr., for appellees.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       175 Ga. App. 850 (334 SE2d 733) (1985).

       (Citations and punctuation omitted.) Id. at 851 (1).

       Or, as Anderson stated in his deposition, “[T]his is not about the [insurance] contract as issued; this is about the contract [that] should have been issued.”

       220 Ga. App. 411 (469 SE2d 752) (1996).

       Id. at 412 (1).

       Id. at 414.

       Compare Heard v. Sexton, 243 Ga. App. 462, 463-464 (532 SE2d 156) (2000) (claim for negligent misrepresentation will lie where evidence shows that agent represented that proposed policy would provide coverage but, in fact, it did not).

       (Citation and punctuation omitted.) Ethridge v. Associated Mutuals, 160 Ga. App. 687, 689 (288 SE2d 58) (1981).

       See Fregeau v. Hall, 196 Ga. App. 493, 494-495 (396 SE2d 241) (1990).

       Anderson maintains that Branch acted as his agent as well as GFB’s because GFB is a farmers mutual insurance company of which he is a “member/owner.” However, Anderson points to no evidence in the record to support this assertion.

        Wallace v. State Farm Fire &c. Co., 247 Ga. App. 95, 96, n. 3 (539 SE2d 509) (2000).

        Collins v. Life Ins. Co. of Ga., 228 Ga. App. 301, 304 (3) (491 SE2d 514) (1997).

        Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874 (1) (392 SE2d 535) (1990).