text:
    75143.
    SPS INDUSTRIES, INC. v. ATLANTIC STEEL COMPANY.
    (366 SE2d 410)
   McMurray, Presiding Judge.

On February 6, 1979, defendant Atlantic Steel Company sent to plaintiff SPS Industries, Inc., a “quotation request” seeking information regarding price, terms and delivery for six (three pairs) cast tooth mill pinions. The pinions were to be manufactured in accordance with defendant’s specifications for use in a Blooming mill which defendant operated. Replying to defendant’s request, plaintiff submitted a price quotation of $4,795 for each pinion; delivery was proposed to be made in “20-24 weeks.” Thereafter, on March 5, 1979, defendant issued to plaintiff a “purchase order” which called for the delivery of six cast tooth mill pinions (at the price quoted by plaintiff) as follows: one pair to be delivered by July 25, 1979; a second pair to be delivered by November 1, 1979; a third pair to be delivered by January 5, 1980. In response to defendant’s purchase order, plaintiff sent defendant an “order acknowledgement” which confirmed the delivery dates.

Plaintiff encountered numerous problems manufacturing the pinions and it did not meet the delivery dates. On August 6, 1979, defendant’s purchasing agent sent the following letter to plaintiff: “It is imperative that you provide me with the information I requested on the subject orders during our telephone conversation last week. It would appear that the elapse of time since these orders were placed with your company would enable you to respond to delivery requests and to our need for your report on the defective pinions. Your immediate response is expected.” Charles J. Wentz, plaintiff’s president, deposed that ordinarily such a letter was referred to the appropriate personnel for a response. He did not know, however, whether plaintiff in fact responded to the letter.

Nearly 18 months after the delivery date specified in the contract, on January 14, 1981, plaintiff shipped the first pair of pinions to defendant. By that time, unbeknownst to plaintiff, defendant abandoned the operation of its Blooming mill (it was replaced by a “continuous caster”) and it had no use for the pinions.

Several weeks after the delivery of the first pair of pinions, defendant notified plaintiff that it was cancelling the “remaining part” of the order. The cancellation took the form of a “change order” which was sent by defendant to plaintiff on February 16, 1981.

On February 18, 1981, plaintiff mailed a letter to defendant confirming a telephone conversation which took place on the previous day. Therein, plaintiff informed defendant that the charges for the cancellation of the four remaining pinions would be $13,840. In this regard, plaintiff advised defendant that of the four remaining pinions, two had been drawn to specifications and two were “in the as cast condition.” Plaintiff concluded: “Per your telephone instructions all work on this order has been stopped until you advise [plaintiff] if we are to continue to finish these four (4) pinions or are to ship in present condition to your plant.” Thereafter, on March 17, 1981, plaintiff sent defendant an invoice which acknowledged defendant’s February 16, 1981, change order and set forth cancellation charges of $13,840.

On April 24, 1981, plaintiff received a letter from defendant stating, in pertinent part: “We received delivery of the first pair of . . . pinions on January 14, 1981, nearly 18 months late, and we have yet to receive the second and third pairs of . . . pinions. Thus, neither of the three deliveries meets the corresponding delivery dates which we agreed upon and the pinions ... are thus not acceptable to us. . . . [Defendant] thereby [sic] rejects the first delivery of . . . pinions and [defendant] also rejects and cancels the two remaining deliveries. As stated in our Change Order dated February 16, 1981, we cancel the remaining two deliveries of the last four pinions . . . and will not accept delivery of these. Due to our rejection of the subject pinions because of late delivery, it is the position of [defendant] that we are not responsible for payment of the first two pinions as detailed in your invoice #1323 dated January 14, 1981, nor for the cancellation charges as detailed in your invoice #1341 dated March 17, 1981.”

In view of defendant’s refusal to make payment, plaintiff brought this action in the State Court of Fulton County seeking to recover $23,940 (the price of the delivered pinions plus the cancellation charges). Defendant answered the complaint, alleging, inter alia, that plaintiff was not entitled to a recovery because it breached the parties’ contract. Additionally, defendant counterclaimed, alleging it incurred damages as a result of plaintiff’s purported breach. Following discovery, defendant moved for summary judgment. Its motion was accompanied by a statement of undisputed material facts (in accordance with Rule 6.5 of the Uniform State Court Rules). Paragraphs 6 and 7 of the statement read: “On August 6, 1979, [defendant] sent and [plaintiff] received a letter demanding immediate assurance that the first pair of pinions would be promptly delivered. . . . Plaintiff did not respond to defendant’s letter . . .” In Paragraph 11 of the statement, defendant asserted: “On February 6, 1981 [defendant] notified [plaintiff] that it had no use for the pinions and that it did. not want them.”

Opposing defendant’s summary judgment motion, plaintiff submitted the affidavit of Charles J. Wentz, its president. In the affidavit, Wentz deposed that the letter which plaintiff received from defendant on April 24, 1981, was “the first statement of any kind, by [defendant] that it was rejecting delivery of the first two mill pinions . . . [and] the first indication that [defendant] would not pay the cancellation charges as detailed in [plaintiff’s] prior invoice.” Plaintiff did not file a formal response to defendant’s statement of undisputed material facts.

Following a hearing upon defendant’s summary judgment motion, the trial court entered summary judgment in favor of defendant with regard to the main claim. In pertinent part, the trial court’s order read as follows: “The parties contracted in March, 1979 for Plaintiff to deliver six pinions to Defendant, one pair on each of the following dates: July 25, 1979, November 1, 1979, and January 5, 1980. The first pair of pinions was not delivered on July 25, 1979. On August 6, 1979, Defendant demanded in writing assurances of due performance. Plaintiff, by making no response to that request and by not making any delivery until on or after January 14, 1981, approximately 18 months late, repudiated the contract. OCGA § 11-2-609. Delivery of the first pair of pinions was rejected within a reasonable time on February 6, 1981, plaintiff having failed to timely dispute Defendant’s statement of undisputed material fact that Defendant notified Plaintiff on February 6, 1981, that Defendant had no use for the pinions and that it did not want them since the mill for which they were ordered had been closed. Moreover, Defendant cancelled the contract and remaining four pinions within a reasonable time.”

Plaintiff appeals, asserting the existence of genuine issues of material fact and the inappropriateness of summary judgment. Held:

1. Defendant contends it is entitled to summary judgment because plaintiff repudiated the contract as a matter of law. In this regard, defendant argues that it demanded adequate assurance of due performance and that plaintiff failed to respond to the demand, thereby repudiating the contract. We disagree. Viewing the evidence favorably to plaintiff, as we are bound to do, Blount v. Seckinger Realty Co., 167 Ga. App. 778, 779 (307 SE2d 683), we find genuine issues of material fact with respect to the repudiation issue. Specifically, factual questions exist concerning (a) whether defendant had reasonable grounds for insecurity, (b) whether defendant demanded adequate assurance of due performance, (c) whether plaintiff failed to respond to the demand and (d) whether defendant proceeded as if a repudiation never took place.

(a) OCGA § 11-2-609 (1) provides: “A contract for sale imposes an obligation on each party that the other’s expectation of receiving due performance will not be impaired. When reasonable grounds for insecurity arise with respect to the performance of either party the other may in writing demand adequate assurance of due performance and until he receives such assurance may if commercially reasonable suspend any performance for which he has not already received the agreed return.” The Code section makes it clear that in order for a party to demand adequate assurance, he must first have “reasonable grounds for insecurity.” As observed in Cole v. Melvin, 441 FSupp. 193, 203 (D.S.D. 1977), “the drafters of the code did not intend that one party to a contract can go about demanding security for the performance of the other whenever he gets nervous about a contract. Some reason for the demand for assurance must precede the demand.”

“Whether in a specific case a buyer has reasonable grounds for insecurity is a question of fact.” AMF, Inc. v. McDonald’s Corp., 536 F2d 1167, 1170 (7th Cir. 1976). Do the facts show that defendant had reasonable grounds for insecurity when it sent its letter of August 6, 1979? We think not. “Between merchants the reasonableness of grounds for insecurity and the adequacy of any assurance offered shall be determined according to commercial standards.” OCGA § 11-2-609 (2). Reviewing the record, we can find no evidence showing the reasonableness of grounds for insecurity on August 6, 1979, by any objective standard. Cole v. Melvin, 441 FSupp. 193, 203, supra. Compare AMF, Inc. v. McDonald’s Corp., 536 F2d 1167, 1170, supra.

(b) OCGA § 11-2-609 (1) “clearly requires that when reasonable grounds for insecurity arise, before a party avails himself of the right to suspend his further performance, he must, in writing demand adequate assurance of due performance of the other party.” Automated Energy Systems v. Fibers & Fabrics of Ga., 164 Ga. App. 772, 774 (298 SE2d 328). See also Continental Grain Co. v. McFarland, 29 UCC Rep 512 (4th Cir. 1980). Defendant contends that it made written demand for adequate assurance in its letter of August 6, 1979. Obviously, defendant’s letter meets the requirement of a writing. We are not convinced, however, that the letter demanded adequate assurance of performance. It would appear that the letter was nothing more than a request for information. Compare Automated Energy Systems v. Fibers & Fabrics of Ga., 164 Ga. App. 772, 774, supra, with Cole v. Melvin, 441 FSupp. 193, 203, supra. At any rate, it cannot be said that the letter constituted a demand for adequate assurance as a matter of law.

(c) OCGA § 11-2-609 (4) provides that “[a]fter receipt of a justified demand failure to provide within a reasonable time not exceeding 30 days such assurance of due performance as is adequate under the circumstances of the particular case is a repudiation of the contract.” The evidence does not demonstrate that plaintiff failed to respond to a justified demand for assurance within a reasonable time. Plaintiff’s president deposed that he did not know whether plaintiff responded to defendant’s letter of August 6, 1979 (the purported justified demand). No contrary evidence was presented on this point. Thus, even if defendant’s letter of August 6, 1979, was a justified demand, it cannot be said as a matter of law that plaintiff failed to respond to it.

(d) Where a seller repudiates a contract, the buyer is entitled to await performance by the seller for a commercially reasonable time or cancel the contract and pursue its remedies under OCGA § 11-2-711. See OCGA § 11-2-610. If instead, however, the buyer proceeds as if a repudiation did not occur, a question arises as to whether an “attempt to cancel had never taken place.” Wahnschaff Corp. v. O. E. Clark Paper &c. Co., 166 Ga. App. 242, 244 (304 SE2d 91).

Viewed in favor of plaintiff, the evidence shows that the first pair of pinions was shipped to defendant on January 14, 1981; that on February 16, 1981, defendant notified plaintiff it was cancelling the “remaining part” of the contract and inquired about cancellation charges for the four remaining pinions; and that it was not until April 24, 1981, that defendant rejected the first pair of pinions “because of late delivery . . .” These facts raise a question as to whether defendant considered plaintiff’s conduct to be a repudiation of the contract and as to whether defendant cancelled the contract on account of a repudiation. See Wahnschaff Corp. v. O. E. Clark Paper &c. Co., 166 Ga. App. 242, 244, supra.

2. Putting aside the question of repudiation, we must consider whether defendant is entitled to summary judgment because plaintiff did not deliver the pinions on time. Where a seller fails to tender delivery of goods in a timely fashion, the buyer is entitled to reject the goods. OCGA § 11-2-601. However, “Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.” OCGA § 11-2-602 (1).

Whether a buyer rejected goods within a “reasonable time after their delivery” and seasonably notified the seller of the rejection is ordinarily a question of fact for determination by a jury under all of the facts and circumstances of the case. OCGA § 11-1-204. See Griffith v. Stovall Tire & Marine, 174 Ga. App. 137, 139 (329 SE2d 234). In light of evidence that plaintiff was not notified about the rejection of the first pair of pinions until April 24, 1981, we find a genuine issue of material fact as to whether defendant timely rejected delivery of the first pair of pinions and seasonably notified plaintiff of the rejection. Trailmobile Div. of Pullman v. Jones, 118 Ga. App. 472, 474, 475 (164 SE2d 346); Hub Motor Co. v. Zurawski, 157 Ga. App. 850, 851 (278 SE2d 689).

3. Defendant would have us rule that by failing to respond to defendant’s statement of undisputed material facts, plaintiff admitted (1) that defendant’s letter of August 6, 1979, constituted a demand for adequate assurance; (2) that plaintiff did not respond to defendant’s letter of August 6, 1979; and (3) that notice of the rejection of the pinions was given by defendant to plaintiff on February 6, 1981. We cannot make such a ruling.

Rule 6.5 of the Uniform State Court Rules simply provides: “Upon any motion for summary judgment pursuant to the Georgia Civil Practice Act, there shall be annexed to the notice of motion a separate, short and concise statement of each theory of recovery and of each of the material facts as to which the moving party contends there is no genuine issue to be tried. The response shall include a separate, short and concise statement of each of the material facts as to which it is contended there exists a genuine issue to be tried.” This rule requires that a party opposing a motion for summary judgment submit a response to the moving party’s statement of undisputed material facts. It does not, however, require that the respondent “admit or deny” each of the moving party’s statements. Nor does it provide that the failure to controvert a statement constitutes an admission that the statement is true. (Compare Federal Local Court Rules, Rule 220-5 (b) (2), N.D. Ga., which provides, in pertinent part: “Response should be made to each of the movant’s numbered material facts. All material facts contained in the moving party’s statement which are not specifically controverted by the respondent in his statement shall be deemed to have been admitted.”) Thus, it cannot be said that by failing to respond to defendant’s statement of undisputed material facts, plaintiff admitted the statements therein.

Mills v. J. E. Sharber Oil Co., 181 Ga. App. 81 (351 SE2d 275), cited by defendant, does not stand for the proposition that a party opposing summary judgment admits statements of undisputed material facts by failing to respond to them. In that case, summary judgment was granted by the trial court after the response of the opposing party was stricken for (1) failure to respond to the motion within 30 days; (2) failure to submit a statement of material facts in issue; and (3) failure to submit adequate opposing affidavits. On appeal, this court simply ruled that the trial court did not abuse its discretion when it struck the response of the party opposing the summary judgment motion: “The appellant did not observe Rule 6.5, and we do not consider the trial court’s putting teeth in the rule by striking the appellant’s response to be an abuse of discretion. That reason alone is sufficient to sustain the trial court’s judgment . . .” Id. at 82.

In the case sub judice, the trial court did not strike plaintiff’s response to defendant’s summary judgment motion. Rather, it awarded summary judgment to defendant on the merits. Accordingly, Mills v. J. E. Sharber Oil Co., 181 Ga. App. 81, supra, is inapposite.

In passing, we observe that Rule 6.5 of the Uniform State Court Rules (and Rule 6.5 of the Uniform Superior Court Rules) was enacted to facilitate the summary judgment decision-making process. It was not designed to be used like a request for admissions, see OCGA § 9-11-36, and it should not be so used.

Judgment reversed.

Sognier, J., concurs. Beasley, J., concurs in the judgment only.

Decided February 26, 1988.

James T. Perry, for appellant.

Walter G. Elliott II, for appellee.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    75330.
    GODOWNS v. CANTRELL.
    (366 SE2d 415)
   Beasley, Judge.

Plaintiff Godowns appeals the denial of his motion for new trial following the court’s direction of a verdict for defendant Cantrell in a suit for property damage to plaintiff’s automobile and truck. The verdict was directed on the basis that plaintiff failed to prove damages.

Plaintiff’s testimony was as follows. He owned both vehicles and the market values immediately preceding the wreck were $2,000 for the automobile and $4,500 for the truck. Two days before the collision he had taken the automobile in for a tuneup. When asked whether he was just guessing as to the pre-collision market value of the truck, he stated he went to used car lots, priced trucks of the same age and the same equipment and the cheapest thing he could find was $4,500 and up. The vehicles were not repaired.

In addition, plaintiff presented testimony from an owner of a paint and body shop about what repairs it would take to put the car and truck back into shape; estimates of the proposed repairs; photographs of both vehicles following the wreck; testimony that the depicted damage was done at the time of the wreck.

“ ‘Where an automobile owner elects not to make repairs to his damaged vehicle, the measure of damages is the difference in market value before and after the collision.’ [Cits.]” Reed v. Piper, 145 Ga. App. 75 (243 SE2d 257) (1978). “Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article in question but may testify as to its value if he has had an opportunity for forming a correct opinion.” OCGA § 24-9-66. “Market value may be established by either direct or circumstantial evidence. [Cit.] Questions as to value are peculiarly for the jury, who on this issue are not absolutely bound even by the uncontradicted testimony of experts, but may consider the nature of the property involved and any other facts or circumstances within their knowledge in arriving at a verdict, provided there are in evidence sufficient facts from which they may draw a legitimate conclusion. [Cits.]” Grant v. Dannals, 87 Ga. App. 389, 391 (74 SE2d 119) (1953). “ ‘The owner of property is considered to be qualified to state his opinion as to value, . . .’” Dixon v. Williams, 177 Ga. App. 702, 704 (340 SE2d 286) (1986), once he has given his reasons or shown he had had an opportunity for forming a correct opinion. See Hoard v. Wiley, 113 Ga. App. 328 (1) (147 SE2d 782) (1966).

Decided February 26, 1988.

Otis W. Harrison, for appellant.

A. Montague Miller, for appellee.

The evidence sufficiently established market values prior to the collision, Dixon v. Williams, supra, as well as the condition of the vehicles after the collision and the damage upon them. Sun Ins. Co. of N. Y. v. League, 112 Ga. App. 625, 626 (145 SE2d 768) (1965). See also Department of Transp. v. Driggers, 150 Ga. App. 270 (257 SE2d 294) (1979); Hogan v. Olivera, 141 Ga. App. 399 (233 SE2d 428) (1977).

Thus the case was not subject to directed verdict on the ground of failure to prove damages. OCGA § 9-11-50 (a); Beard v. Fender, 179 Ga. App. 465 (346 SE2d 901) (1986).

Judgment reversed.

McMurray, P. J., and Sognier, J., concur.


author: Beasley, Judge. Sognier, Judge,

text:
    75376.
    TANDY COMPUTER LEASING v. SMITH.
    (366 SE2d 417)
   Beasley, Judge.

Tandy filed a complaint in the State Court of Bryan County to domesticate a judgment obtained against Smith in the county court of Tarrant County, Texas. Smith answered and filed a counterclaim. Tandy then filed its motion to produce, request for admissions, and interrogatories. Among the requests for admissions were: number four, which provided that a lease entered into between the parties would be governed and construed in accordance with Texas law and deemed to be made in Fort Worth, Texas; number six, which provided that personal jurisdiction over Smith was made under specified Texas Rules of Civil Procedure and statute; number 13, which stated that under Texas law any person entering into a contract in Texas is subject to personal jurisdiction in the Texas courts.

Smith failed to answer the requests for admissions within the time required by law and when he did answer over a year later he did not move to withdraw the admissions. When Tandy moved for summary judgment, Smith neither responded nor requested a hearing. The trial court granted Tandy’s motion and judgment was entered in its favor. Two months later, Smith filed a motion to vacate the judgment, sought a restraining order and then moved for summary judgment. The trial court set aside the judgment for Tandy.

After the original judgment was vacated both Tandy and Smith again moved for summary judgment. Smith then answered Tandy’s interrogatories and responded to the request for admissions. After the summary judgment hearing, the trial court granted Smith’s motion and denied that of Tandy. The court found that the Texas court did not have personal jurisdiction over Smith and its judgment would not be recognized, despite having considered the “admissions on file.”

Tandy moved for reconsideration and upon denial of its motion appealed to this court within thirty days of entry of the judgment ruling on the motions for summary judgment. It complains that it was error 1) to vacate its judgment obtained against Smith, and 2) to grant summary judgment to Smith based upon lack of personal jurisdiction in Texas.

1. The trial court predicated its vacation of Tandy’s original Georgia judgment against Smith on the fact that Smith received neither notice nor hearing prior to entry of summary judgment against him. This ruling was based on Ferguson v. Miller, 160 Ga. App. 436 (287 SE2d 363) (1981), which held that, where the appellant received neither notice nor a hearing, summary judgment could not be granted against him. The same result does not necessarily follow now because of the passage of the Uniform Superior Court Rules. As Jacobsen v. Muller, 181 Ga. App. 382 (2) (352 SE2d 604) (1986) explained: “Under the new Rules, a party opposing a motion has 30 days after service of the motion to file a response (Rule 6.2) and a motion will be decided without benefit of an oral hearing unless a written request is made therefor (Rule 6.3). Contrary to appellant’s assertions, the Rules do not deprive the opposing party of the opportunity to be heard, since he is given 30 days after service of the motion in which to file a response to the motion. A respondent is ‘heard’ when he files a response, since ‘hearing’ does not necessitate an oral hearing but ‘contemplates notice to the respondent that the matter will be heard and taken under advisement as of a certain day.’ . . . Thus, appellant was given an opportunity to be heard and chose not to avail herself of that opportunity. . . . The Rules also put to rest appellant’s allegation that she received no prior notice of the date of ruling on the motions for summary judgment. Under the Rules, service of a motion on an opposing party serves as notice to that party that the court will take the matter under advisement after 30 days . . . after service of the motion has passed.”

Smith had notice of the motion, and the fact that it did not set out a date for the hearing was not crucial according to Jacobsen. Smith failed to avail himself of the protection of the Rules and chose not to respond, so he cannot complain about lack of notice or a hearing. The first judgment for Tandy should not have been vacated.

2. Even if it had been proper to set aside the first summary judgment, the court erred in applying OCGA § 9-12-114 (2) and ruling that the Texas court lacked personal jurisdiction, which was one of Smith’s defenses. He was a nonresident of Texas and the judgment had been obtained by default. But Smith admitted there was jurisdiction in the Texas suit by failing to answer the requests for admissions, which were never withdrawn. Even though one of them purports to admit law and is therefore of no consequence, A & D Barrel &c. Co. v. Fuqua, 132 Ga. App. 827, 831 (209 SE2d 272) (1974), those which are admissions of fact when considered together with other facts in the record constitute a base supporting a legal conclusion that Texas had jurisdiction over Smith. The unanswered and unobjected-to factual judicial admissions were conclusive and binding on Smith as established facts, unless allowed to be withdrawn, which they were not. OCGA § 9-11-36 (a) (2) apd (b); Stone v. Lenox Enterprises, 176 Ga. App. 696, 698 (1) (337 SE2d 451) (1985); Albitus v. Farmers &c. Bank, 159 Ga. App. 406, 407 (1) (283 SE2d 632) (1981). Thus the trial court was precluded from rejecting facts established by the admissions.

Moreover, in support of its motion for summary judgment, Tandy properly proved the Texas long arm statute. Under it, “entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party” in Texas shall be considered “doing business” in Texas, and the proper manner of service is specified. The certified copy of the Texas judgment itself recites that Smith was personally served in accordance with Texas law, showing that the Texas court had personal jurisdiction over him under Texas law.

That is all that was required, as the laws of other states, when properly authenticated and proved, “shall have the same full faith and credit in every court within this state as they have by law or usage in the courts of such state . . .” OCGA § 24-7-24 (a) (2). Compare Borg-Warner &c. Prods. v. May, 154 Ga. App. 482, 483-4 (2), (3) (268 SE2d 770) (1980). Smith failed to produce any evidence to rebut this showing, as he was required to do. See generally Stipp v. Bailey, 181 Ga. App. 555, 556 (353 SE2d 52) (1987).

The trial court was without authority to vacate its original grant of summary judgment against Smith and accordingly grant summary judgment in his favor.

Judgment reversed.

McMurray, P. J., concurs. Sognier, J., concurs specially.

Sognier, Judge,

concurring specially.

I concur fully in Division 1. However, I cannot concur fully because I do not agree with that portion of Division 2 which states that the admissions of fact support the reversal. Although recognizing that the admission of a legal conclusion “is ... of no consequence,” the majority nevertheless finds that the admissions here properly, if only partly, support a finding that Texas had jurisdiction over Smith. The majority further at least implies that the admissions here established jurisdiction, thereby precluding the trial court from rejecting that “fact.” I recognize that OCGA § 9-11-36 (2) requires that requests for admission be answered within 30 days or they are deemed admitted, and that as such they constitute judicial admissions, which are conclusive unless withdrawn. Albitus v. Farmers &c. Bank, 159 Ga. App. 406, 407 (1) (283 SE2d 632) (1981). However, the permissible scope of requests for admission is not boundless. OCGA § 9-11-36 is patterned after rule 36 of the FRCP. While federal rule 36 has been liberalized, still it has been held that rule 36 does not authorize a request for admission of matters solely relating to propositions of law. Williams v. Krieger, 61 FRD 142 (SDNY 1973). Similarly, Georgia courts have held, even after the liberalization of our own rule, that requests for admission “must deal with matters essentially factual, not opinionative or conclusions of law ...” A & D Barrel &c. Co. v. Fuqua, 132 Ga. App. 827, 831 (209 SE2d 272) (1974). See also Taylor v. Hunnicutt, 129 Ga. App. 314 (199 SE2d 596) (1973). I conclude, therefore, that appellee could not properly have admitted that Texas had personal jurisdiction over him, since such a request to admit would relate solely to a legal conclusion.

Decided February 26, 1988.

Sherwin P. Robin, for appellant.

Lloyd D. Murray, for appellee.

However, I agree with that portion of Division 2 which predicates a reversal of the judgment below upon the trial court’s error in finding that the Texas court did not have jurisdiction over appellee because the record shows proper service and personal jurisdiction under Texas law. Accordingly, I concur in the judgment.


text:
    75572.
    WRIGHT v. THE STATE.
    (366 SE2d 420)
   Beasley, Judge.

Curtis Wright was convicted of armed robbery, OCGA § 16-8-41, and sentenced to life in prison. He claims two errors.

1. The first is that Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986) was not complied with so that his Sixth Amendment right to a fair and impartial jury was violated. He does not challenge the procedure under any state law or state constitutional provision, so we deal only with the federal constitutional claim. See Powell v. State, 182 Ga. App. 123, 124 (355 SE2d 72) (1987).

After the jury was selected but before it was sworn, defendant, a black man, moved the court to require the State to explain its using nine of its ten peremptory challenges to strike black persons from the jury panel. This was timely. State v. Sparks, 257 Ga. 97 (355 SE2d 658) (1987). The particular jurors’ numbers were listed. Defendant relied on Batson, which had been decided three months earlier. The State questioned the accuracy of counsel’s count, which counsel stated both he and defendant kept during the voir dire, and counsel offered proof via testimony of the jury manager, but that was not permitted. The State asserted that these facts should have been put in the record at voir dire if defendant desired to preserve them.

The court denied the motion. At the end of the trial, the court established that defendant had not requested that the voir dire be recorded, that the State had accepted three and possibly four blacks but defendant had stricken them, that two jurors and an alternate juror were black (there apparently were two alternates). The record does not show how many black people or how many white people were on the venire.

Defendant’s opportunity to demonstrate systematic exclusion of a group of jurors from the venire was foreclosed by the court’s ruling. He did show that he was a member of a cognizable racial group and that the prosecutor exercised peremptory strikes against other members of it. See McCormick v. State, 184 Ga. App. 687 (362 SE2d 472) (1987). He should have been permitted to show the race of the jurors stricken by the State and the total number of blacks in the body of jurors subjected to voir dire. If the number of those stricken was as he stated in his place, particularly if the total number of black veniremen was low, he was entitled under Batson to an explanation of the State’s strikes and to the court’s determination of whether or not the strikes were racially neutral or, on the other hand, purposefully discriminatory. In Batson the State struck “all four black persons on the venire.” The prerequisites for a prima facie case are at page 16 of the slip opinion, 90 LE2d at 87-88. See also Gamble v. State, 257 Ga. 325 (357 SE2d 792) (1987). The fact that all of the black veniremen were not striken by the State, or the fact that the State did not use all of its peremptory challenges against such, is not conclusive. Barton v. State, 184 Ga. App. 258 (2) (361 SE2d 250) (1987); Powell, supra.

Accordingly, as required by Batson, the circumstances require remand for further proceedings in this regard. See Powell, supra at 125; Sparks v. State, 180 Ga. App. 467 (349 SE2d 504) (1986), aff’d State v. Sparks, supra; Wise v. State, 179 Ga. App. 115 (346 SE2d 393) (1986). “If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action,. . .” the conviction must be set aside. Batson, supra at 100. See also Hillman v. State, 182 Ga. App. 47, 48-49 (354 SE2d 673) (1987).

Decided February 26, 1988.

H. Haywood Turner III, for appellant.

William J. Smith, District Attorney, J. Gray Conger, Assistant District Attorney, for appellee.

2. The other enumeration contests the sufficiency of the evidence. We have examined it and conclude that, despite appellant’s urging that the jury was required to accept his testimony and that of the alibi witnesses over that of the identifying victim-witnesses, such is not the case. Weight and credibility are solely matters for the jury to consider. OCGA § 24-9-80; Harris v. State, 155 Ga. App. 530 (1) (271 SE2d 668) (1980). The number of witnesses marshalled by one side against the other is not conclusive. Redfield v. State, 240 Ga. 460, 461 (1) (241 SE2d 217) (1978).

Nor is the circumstantial evidence principle cited by appellant from Patrick v. State, 75 Ga. App. 687 (2) (44 SE2d 297) (1947) applicable. There was direct evidence from the two victims, who identified defendant based in part on his prior visits to the real estate office where the incident occurred, one of which was just fifteen to twenty minutes before the robbery and when defendant was not wearing the sunglasses, bandanna, or hat which partially covered the perpetrator’s face and head. The verdict was authorized under the test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Thus, if the Batson inquiry requires a new trial, the State may pursue it. Gamble v. State, supra at 330 (7).

In sum, this case must be remanded to the trial court for a hearing and for appropriate findings concerning only the issue of whether the requirements of Batson, supra, have been satisfied. Should further review of this issue be necessary, the appropriate appellate procedure shall be followed for such review.

Judgment affirmed and case remanded for hearing as directed in Division 1.

McMurray, P. J., and Sognier, J., concur.


author: Benham, Judge.

text:
    75286.
    CLARK v. THE STATE.
    (366 SE2d 361)
   Benham, Judge.

After being charged with murder, appellant, accompanied by counsel, pleaded guilty to voluntary manslaughter and received a 20-year sentence. This appeal followed the trial court’s denial of appellant’s motion to withdraw his plea.

Appellant pleaded guilty in a manner the constitutionality of which was sanctioned by the Supreme Court of the United States in North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970): appellant entered his plea of guilty while asserting his innocence. He now contends that his plea was not constitutionally acceptable.

1. Citing Henderson v. Morgan, 426 U. S. 637 (96 SC 2253, 49 LE2d 108) (1976), appellant contends he should be permitted to withdraw his guilty plea in light of the failure of the trial court to inform him that specific intent is a necessary element of voluntary manslaughter.

“Intent to kill is an essential element of both murder and voluntary manslaughter.” Parks v. State, 254 Ga. 403 (12) (330 SE2d 686) (1985). It is not necessary, however, that the trial court personally inform the accused of the elements of the crime to which he is pleading guilty. Ballard v. State, 150 Ga. App. 704 (3) (258 SE2d 331) (1979). “[I]t may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” Henderson v. Morgan, supra, 426 U. S. at 647. It is not appellant’s contention that he did not have notice of the crime to which he pleaded guilty, but that the trial court did not inform him of the elements of the crime. It was not error to refuse to permit appellant to withdraw his plea based on this ground. See also Wilson v. Reed, 246 Ga. 743 (1) (272 SE2d 699) (1980).

2. Appellant next argues that his plea was not voluntarily and freely made and that the trial court failed to make determinations concerning the voluntariness of the plea and the factual basis for the plea. We do not find merit in either of appellant’s assertions. The transcript of the plea hearing reflects that the trial court made a determination of the voluntariness of appellant’s plea. As the hearing drew to a conclusion, the trial court stated that “it [is] clearly clear to the Court that this plea is freely and voluntarily given by the Defendant with full knowledge of the consequences.” While the trial court did not make a determination concerning the factual basis for appellant’s plea, and while Rule 33.9 of the Uniform Rules for the Superior Courts urges the trial courts to refrain from entering judgment upon a guilty plea “without making such inquiry on the record as may satisfy him that there is a factual basis for the plea” (compare Ford v. State, 248 Ga. 241 (2) (282 SE2d 308) (1981)), “[it is not] necessary that a trial court affirmatively state on the record that it is satisfied that a factual basis for a defendant’s guilty plea exists when there is evidence that the trial court is aware of the factual basis.” Harris v. State, 167 Ga. App. 153 (3) (306 SE2d 79) (1983). The plea hearing transcript contains the district attorney’s summary of the evidence the State was prepared to present at appellant’s trial. The summary showed that the decedent told a third party on the evening before he disappeared in Florida that he was meeting appellant for dinner; later that evening, appellant was seen using the decedent’s credit cards. When the decedent’s body was found in Georgia, it had four bullet wounds. Appellant had the murder weapon and several of the victim’s personal possessions when he was arrested. Two bullets from the murder weapon and blood stains of a type matching that of the deceased were found in the truck being driven by appellant. Since the transcript contained a factual basis for appellant’s plea, it was not necessary for the trial court to affirmatively state that a factual basis existed. There was no error in accepting appellant’s plea. Brannon v. State, 176 Ga. App. 49 (2) (335 SE2d 163) (1985).

3. Appellant next asserts that his plea was involuntary because it was the result of coercion. At the plea hearing, appellant informed the trial court that he was pleading guilty “to avoid the threat of a multiple state prosecution,” a concern because it was unclear whether a crime involving the decedent had been committed in Florida as well as in Georgia. Successive prosecutions by two states for the same conduct were possibilities facing appellant. See Heath v. Alabama, 474 U. S. 82 (106 SC 433, 88 LE2d 387) (1985). However, “[t]he standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. [Cits.] That he would not have pleaded except for the opportunity to limit the possible [number of prosecutions] does not necessarily demonstrate that the plea of guilty was not the product of a free and rational choice. . . .” North Carolina v. Alford, supra, 400 U. S. at 31.

4. After hearing the testimony of appellant at the sentencing hearing, held several months after the entry of appellant’s guilty plea, the trial court observed that “[appellant] hasn’t said anything that is mitigating. Nor has he said anything that would indicate remorse to me. And I look at the circumstances surrounding this case. They were overwhelming . . . and I have to take that into consideration in imposing sentence.” The trial court then sentenced appellant to serve 20 years. Appellant now contends he should have been permitted to withdraw his plea since the trial court should not have accepted the Alford plea if it expected appellant to show evidence of remorse.

“In a presentence trial the trier of fact must make a determination as to the sentence to be imposed, taking into consideration all aspects of the crime, the past criminal record or lack thereof, and the defendant’s general moral character. [Cits.] Any lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes is admissible in aggravation . . . [S]uch evidence . . . may consist as it did here of the defendant’s attitude . . . [and] the trier of fact’s personal observation of the defendant. . . .” Fair v. State, 245 Ga. 868 (4) (268 SE2d 316) (1980). Since the trial court’s imposition of sentence on appellant was not based solely on appellant’s lack of remorse, we decline to hold that the trial court abused its discretion in refusing to grant appellant’s motion to withdraw his guilty plea.

5. Appellant next contends that a violation of the holding in Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), constituted grounds upon which he should have been permitted to withdraw his plea. The purportedly exculpatory material allegedly withheld from appellant was a report that an anonymous person had called police in Virginia and had named a Thomasville, Georgia man as having threatened the life of the decedent. This material came to the attention of the trial court and defense counsel during an in camera portion of a bond hearing held on August 6, 1985, fifteen months before appellant pleaded guilty. Appellant now claims it is exculpatory evidence that the State failed to give appellant in response to his Brady motion. However, appellant’s counsel admitted at the hearing on the motion to withdraw the plea in April 1987 that he had had a transcript of the in camera hearing prior to the entry of appellant’s guilty plea. At the April 1987 hearing, the State presented evidence that portions of the anonymous tip were untrue and that the alleged threatener was out of the county when the decedent was killed.

“[Appellant’s invocation of the Brady rule is inappropriate under the facts of this case. Brady applies to ‘the discovery, after trial, of information which had been known to the prosecution but unknown to the defense.’ [Cit.]” Baker v. State, 245 Ga. 657, 661 (266 SE2d 477) (1980). Counsel for appellant was present when the information was initially revealed, and admitted he knew of it at the time appellant tendered his guilty plea. He will not be heard to say that a Brady violation occurred.

6. Finally, appellant maintains that the trial court permitted improper cross-examination of his witness at the sentencing hearing, resulting in the consideration of inadmissible evidence. After appellant’s character witness had testified that he had a favorable impression of appellant and that appellant was held in high esteem, the district attorney asked the witness whether he had heard that shortly after appellant had resigned from a position with a Georgia city’s chamber of commerce, $9,500 had been found to be missing from the chamber’s account, and that appellant’s father-in-law had paid the shortfall; that appellant had been discharged from a position with another chamber of commerce after “irregularities” were discovered; that he had left Mississippi while owing $12,000 on a note; that appellant’s former wife suspected him of stealing $15,000 of family heirlooms from her; and that appellant had been caught in a jewelry store trying to switch false diamonds for real ones. Appellant objected to the line of questioning, contending it was hearsay and that the State had not given the notice required by OCGA § 17-10-2 before evidence in aggravation may be introduced at a sentencing hearing. Since the State was not introducing evidence in aggravation, but cross-examining the witness to determine the basis of the witness’ testimony, OCGA § 17-10-2 was not applicable. His hearsay objection, on the other hand, is meritorious.

“[W]here a witness for defendant testifies [at a pre-sentence hearing] as to defendant’s good reputation, the law allows the State, on cross-examination, to test the credibility of the witness by asking him as to whether he has ‘heard’ that defendant was charged with or committed certain crimes or misdemeanors. [Cits.]” Whatley v. State, 131 Ga. App. 320 (2) (205 SE2d 517) (1974). However, on cross-examination of a character witness, the district attorney may not “ask questions as to unproved crimes or acts of violence which are inflammatory, prejudicial, and suggestive of facts not in evidence, and such unwarranted cross-examination constitutes reversible error. [Cit.]” Simmons v. State, 168 Ga. App. 1 (5) (308 SE2d 27) (1983). Through his cross-examination, the district attorney presented prejudicial material for which he had no evidentiary basis. The State defends his actions by relying on Richardson v. State, 177 Ga. App. 48 (2) (338 SE2d 506) (1985). In that case, however, as in Nassar v. State, 253 Ga. 35 (4) (315 SE2d 903) (1984), cited therein, the questions asked by the district attorney were proven to be factual by a proffer of arrests and convictions as well as the defendant’s testimony. These cases have imprinted the judicial requirement for which this court pleaded in Whatley: the cross-examination of a defendant’s character witness must be limited to matters that will be supported by admissible evidence. See also Eubanks v. State, 180 Ga. App. 355 (1) (349 SE2d 244) (1986). In the case at bar, the district attorney admitted he did not have certified copies of appellant’s record or witnesses to testify concerning these acts, and stated that his questions were based upon information he had gleaned from hearsay reports submitted by his office investigator. The district attorney’s cross-examination, prejudicial and without an evidentiary basis, was improper. Simmons v. State, supra. Inasmuch as the admission over objection of this line of questioning impermissibly allowed the trial court to consider rumor at the sentencing hearing, we must reverse and remand to the trial court for a new trial on the issue of punishment. Pounds v. State, 136 Ga. App. 852 (6) (222 SE2d 629) (1975). Compare Welborn v. State, 166 Ga. App. 214 (303 SE2d 755) (1983) (where the trial court sustained objections to prejudicial and illegal evidence injected into the sentence hearing).

Decided February 10, 1988

Rehearing denied February 29, 1988

G. Terry Jackson, Michael G. Schiavone, for appellant.

Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part and case remanded on the issue of punishment.

Banke, P. J., and Carley, J., concur.


text:
    75654.
    RICE v. THE STATE.
    (366 SE2d 322)
   Benham, Judge.

Appellant was convicted of four counts of armed robbery. On appeal he maintains that the trial court erred in admitting evidence of similar transactions and that he was not afforded his constitutional right to effective assistance of counsel.

1. Each of the four victims positively identified appellant as one of two men who entered a commercial establishment where the victim was, spent some time there, and then robbed the proprietor and customers at gunpoint. The man purported to be appellant’s accomplice appeared as a witness for the State and testified that he and appellant committed the armed robberies for which appellant was on trial, as well as three other armed robberies with which appellant was not charged. The uncharged crimes occurred within days of the charged crimes; were committed in the same area of DeKalb County as the charged crimes; followed the same method of operation as that displayed in the charged crimes; and the descriptions of the perpetrators given by the victims generally fit appellant and the accomplice/witness. Appellant’s 1975 conviction of armed robbery was also introduced as evidencing a similar transaction.

“Before evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. [Cits.]” Baxter v. State, 160 Ga. App. 181 (2) (286 SE2d 460) (1981). Appellant contends that the testimony of his accomplice is not sufficient to establish the proof of identity and involvement necessary to permit the introduction of the uncharged crimes as similar transactions. While there must be independent corroboration of an accomplice’s testimony as to the identity and participation of a defendant in order to convict the defendant of that crime (OCGA § 24-4-8; Ledford v. State, 162 Ga. App. 221, 223 (291 SE2d 82) (1982)), “[circumstantial evidence may be used to establish a prior similar offense. [Cit.] Whether the circumstantial evidence is enough to show [the defendant] to be the [perpetrator] of the other offenses is a matter for the jury to decide. [Cit.]” Baxter v. State, supra.

Since appellant did not present the remainder of his appellate argument concerning the admission of the evidence of similar transactions in the trial court, we may not now consider it. Hagger v. State, 179 Ga. App. 16 (2) (345 SE2d 118) (1986).

2. In an amended motion for new trial filed by new counsel, and now on appeal, appellant contended he was denied the effective assistance of counsel at trial. Cf. Thompson v. State, 257 Ga. 386 (2) (359 SE2d 664) (1987). Appellant contends his trial counsel was deficient in failing to impeach the testimony of his alleged accomplice through the use of the testimony of appellant and other witnesses whose names appellant provided his attorney. At the hearing held pursuant to appellant’s motion for new trial, appellant’s trial counsel testified that the defense presented was that of mistaken identity and that she decided not to call appellant as a witness due to his criminal history. Appellant wished his trial counsel to call certain witnesses to show the bad relationship between appellant and the accomplice/witness who had testified against him. At the post-trial hearing, appellant’s uncalled witnesses gave their testimony about an event in 1970 involving appellant and the accomplice/witness. Cross-examination of those witnesses revealed that they had not actually witnessed the exchange between appellant and the accomplice/witness in 1970, and that they had no idea of the accomplice’s attitude toward appellant at the time this crime was committed in 1986.

“[I]n determining whether there has been actual ineffective assistance of counsel, thereby requiring the reversal of defendant’s conviction[,] [t]he defendant must show both that counsel’s performance was deficient and that this deficiency prejudiced the defense. [Cits.] . . . [C]ounsel’s performance will not be found to be deficient if it falls within the range of ‘reasonably effective assistance.’ To perform within this range, counsel must make all significant decisions in the exercise of reasonable professional judgment. The reasonableness of counsel’s performance is then considered in light of the totality of the circumstances, viewed from counsel’s perspective at the time of trial, thereby eliminating the possible distortions of hindsight analysis. [Cit.] The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. Regarding the second prong of the test, the defendant must show . . . there is a reasonable probability that the outcome of the proceedings would have been different but for counsel’s unprofessional errors. [Cits.]” Gabler v. State, 177 Ga. App. 3, 5 (338 SE2d 469) (1985).

Decided February 2, 1988

Rehearing denied February 29, 1988

Calvin A. Leipold, Jr., for appellant.

Robert E. Wilson, District Attorney, James W. Richter, Elisabeth G. MacNamara, Assistant District Attorneys, for appellee.

From review of the record it is clear that trial counsel’s decisions not to call appellant as a witness falls into the category of trial strategy. It is evident from the post-trial testimony of the three witnesses appellant wished had been called at trial that their testimony would not have brought the result appellant wished. Furthermore, while we find no deficiency in trial counsel’s performance that falls without the range of “reasonably effective assistance,” we must note that, in light of the positive identification of appellant as a perpetrator by all four armed robbery victims, appellant has failed to show a reasonable probability that the outcome of his trial would have been different had trial counsel offered the testimony of appellant and the other three witnesses in an effort to impeach the accomplice/witness.

Judgment affirmed.

Banke, P. J., concurs. Carley, J., concurs in Division 2 and in judgment.


author: Sognier, Judge. Beasley, Judge,

text:
    75266.
    TAYLOR v. THE STATE.
    (366 SE2d 422)
   Sognier, Judge.

Defendant appeals his conviction of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b) and (d), possession of marijuana with intent to distribute, OCGA § 16-13-30 (j) (1), and possession of a dangerous drug, OCGA §§ 16-13-71 and 72.

1. The evidence, although mostly circumstantial, was sufficient for a rational trier to find the defendant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. In argument to this court, defendant contends that the trial court should have given, without request, the “two theories” circumstantial evidence charge. We find no error in its omission. Griffis v. State, 163 Ga. App. 491, 492 (2) (295 SE2d 197) (1982); Mercer v. State, 169 Ga. App. 723, 726 (2) (314 SE2d 729) (1984); Lee v. State, 177 Ga. App. 8 (2) (338 SE2d 445) (1985). Defendant does not assign error on the failure to charge OCGA § 24-4-6. See Arnett v. State, 245 Ga. 470, 473 (4) (265 SE2d 771) (1980).

3. Defendant’s assertion that authority for imposition of enhanced punishment was lacking because he was not indicted as a recidivist is without merit. OCGA § 16-13-30 (d), which provides “[u]pon conviction of a second or subsequent offense,” the defendant “shall be imprisoned for life,” is merely a direction as to the imposition of punishment under specified aggravated circumstances and does not create a separate and independent offense which must be alleged in an indictment. State v. Hendrixson, 251 Ga. 853, 854 (310 SE2d 526) (1984).

OCGA § 16-13-30 (d) provides, in pertinent part: “Except as otherwise provided, any person who violates subsection (b) of this Code section with respect to a controlled substance . . . shall be guilty of a felony . . . Upon conviction of a second or subsequent offense, he shall be imprisoned for life.” (Emphasis supplied.) In the instant case this was not appellant’s second conviction for a violation of OCGA § 16-13-30 (b), but his first; his two prior drug convictions were in Florida. Thus, § 16-13-30 (d), supra, is not applicable and does not authorize imposition of life imprisonment under the facts of this case. Nor does the recidivist statute, OCGA § 17-10-7, apply to the facts of this case. Subsection (a) of that statute refers to second offenders, and provides, in pertinent part: “Any person . . . having been convicted under the laws of any other state ... of a crime which if committed within this state would be a felony and sentenced to confinement in a penal institution, who shall afterwards commit a felony punishable by confinement in a penal institution, shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he stands convicted . . .” The longest period of time prescribed for punishment for a person convicted of a violation of § 16-13-30 (b), supra, is “not less than five years nor more than 30 years.” § 16-13-30 (d), supra. As stated previously, it is only when appellant is convicted a second time for a violation of § 16-13-30 (b) that a sentence to life imprisonment is authorized. Subsection (b) of § 17-10-7 is not applicable because it applies to persons with three or more prior convictions, whether committed in Georgia or out-of-state, and appellant here has only two prior convictions in Florida. Hence, it was error to sentence appellant to life imprisonment on the basis of his prior drug convictions in Florida. We recognize that defendant has not specifically raised the issue of whether the convictions with which he was charged fit within the statutory provision of “a second or subsequent offense,” so as to authorize imprisonment for life. Nevertheless this court has held: “ ‘ “In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” [Cit.]’ [Cits.]” (Emphasis supplied.) Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986); Kearney v. State, 184 Ga. App. 64, 66 (360 SE2d 633) (1987). We find this to be one of those cases in which the rule quoted above was intended to be applicable. It would seriously affect the fairness and integrity of the judicial system to allow an illegal and unauthorized sentence to stand, particularly where, as here, the sentence is to life imprisonment.

Accordingly, we affirm appellants convictions of the offenses charged, but we remand the case to the trial court with direction that it vacate appellant’s sentence and hold a new sentencing hearing to impose a sentence authorized by law. The right of a new appeal solely on this issue is reserved to the defendant in accordance with the applicable appellate law and procedures.

Judgment affirmed in part; case remanded for resentencing.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Pope, and Benham, JJ., concur. Deen, P. J., Carley, and Beasley, JJ., dissent.

Beasley, Judge,

dissenting.

I concur in Divisions 1 and 2 but respectfully dissent as to the second part of Division 3 and would affirm the convictions and sentences.

Defendant does not make an issue of whether the convictions with which he was charged fit within the term “a second or subsequent offense.” The prior offenses resulted in Florida convictions for possession of heroin and three counts of sale of cocaine. Thus as to nature of these crimes, they fit within the description of what is enumerated in subsection (b), OCGA § 16-13-30: “Except as authorized by this article, it is unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.”

Our function as intermediate appellate judges is to correct errors of law which are complained of. It does not extend to reaching into the record and sua sponte raising and deciding issues not presented by the parties. Ga. Const. 1983, Art. VI, Sec. V, Par. III. See OCGA § 5-6-40; Tandy Corp. v. McCrimmon, 183 Ga. App. 744, 746 (3) (360 SE2d 70) (1987); Phelps v. State, 130 Ga. App. 344 (3) (203 SE2d 320) (1973); Craig v. State, 130 Ga. App. 689, 692 (6) (204 SE2d 307) (1974). Although the latter is not a precedential case, the point here in focus is based on a unanimous decision of the Supreme Court describing this court’s jurisdiction as well as its own, Hess Oil & Chem. Corp. v. Nash, 226 Ga. 706, 709 (177 SE2d 70) (1970). As succinctly stated in Barnes v. State, 157 Ga. App. 582, 589 (2) (277 SE2d 916) (1981): “The Court of Appeals is a court for the correction of errors below; it is not a court of original jurisdiction. Georgia Constitution, Art. VI, Sec. II, Par. VII [sic].

Decided February 29, 1988.

O. Dale Jenkins, for appellant.

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

Not only was the issue not raised or ruled on below, it is neither enumerated as error nor briefed. These are all prerequisites to our consideration of a question. Southern R. Co. v. Ga. Kraft Co., 183 Ga. App. 884 (1), (7) (360 SE2d 605) (1987); Harmon v. Southern R. Co., 123 Ga. App. 309, 310 (2) (180 SE2d 604) (1971); McCollum v. State, 177 Ga. App. 40 (1) (338 SE2d 460) (1985); Martin v. State, 72 Ga. App. 810 (35 SE2d 315) (1945); Rules 15 (c) (2) and 27 (e). It thus has been subjected to no adversarial debate by the parties, no submission of argument or citation of authorities on both sides of it. Defendant does not say that his prior offenses are not embraced within the legislature’s intendment, nor has the State had opportunity to show that they do.

We take a big jurisdictional step when we venture beyond the matters complained of, and a larger one yet when in so doing we construe a statute contrary to the lower court’s unchallenged construction.

I am authorized to state that Presiding Judge Deen and Judge Carley join in this dissent.

       Correct reference is Par. VIII, of the 1976 Constitution.


author: Sognier, Judge.

text:
    75817.
    JOHNSON v. THE STATE.
    (367 SE2d 133)
    Decided February 29, 1988.
   Sognier, Judge.

Appellant was convicted of voluntary manslaughter and appeals on the general grounds. We have examined the entire transcript and find the evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

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

Drew R. Dubrin, Cynthia Y. Wright, for appellant.

L,¡ewis R. Slaton, District Attorney, Joseph J. Drolet, A. Thomas Jones, Benjamin H. Oehlert III, Assistant District Attorneys, for appellee.


author: Deen, Presiding Judge.

text:
    76089.
    JOHNSON v. THE STATE.
    (366 SE2d 424)
   Deen, Presiding Judge.

The appellant, Clemon Johnson, was convicted of aggravated assault and possession of a firearm by a convicted felon. On appeal, Johnson contends that the trial court erred (1) in allowing the state to introduce character evidence in the form of previous arrests and convictions, and (2) in not informing Johnson that he could discharge his trial counsel and represent himself. Held:

1. During the state’s presentation of its case, the victim testified that Johnson had entered his store at Greenbriar Mall with thé husband of a recently discharged employee. In complaining about the firing of the other man’s wife, Johnson struck the victim in the face and pointed a pistol at him. In giving his side of the story, Johnson referred to his friend’s wife as a Christian woman; on cross-examination, in response to the prosecutor’s question over whether his critical approach of the victim had stemmed from his being the kind of man who could not stand the victim’s harsh treatment of a Christian lady, Johnson stated that he could not stand to see any lady abused. After persuading the trial court that by this testimony Johnson had placed his character in issue, the prosecutor was allowed to introduce evidence of prior convictions for various offenses and to ask Johnson about his arrests for pimping, pandering, prostitution, and cussing.

“The general character of the defendant is irrelevant and inadmissible unless [the defendant] chooses to put it in issue.” Askew v. State, 135 Ga. App. 56, 57 (217 SE2d 385) (1975); OCGA § 24-9-20 (b), generally. See also Jones v. State, 257 Ga. 753 (363 SE2d 529) (1988). Johnson’s reference to his friend’s wife as a Christian woman may have commented on her character, but we cannot accept the state’s position that it also put Johnson’s own character in issue. To the extent that Johnson’s statement about not liking to see a lady abused may have placed his character in issue, the placement was made by the state. As in Askew v. State, supra at 57, “it was the state that opened the door on cross-examination . . . Introduction of such damaging evidence requires reversal. . . .” See also Mikle v. State, 236 Ga. 748 (225 SE2d 275) (1976), and Jones v. State, supra.

2. Because of our holding in Division 1, we need not address Johnson’s remaining enumeration of error.

Decided February 29, 1988.

Glenn Zell, for appellant.

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

Judgment reversed.

Carley and Sognier, JJ., concur.


author: Pope, Judge.

text:
    76109.
    HICKMAN v. THE STATE.
    (366 SE2d 426)
   Pope, Judge.

James L. Hickman was indicted for murder and found guilty of voluntary manslaughter. His enumerations on appeal challenge the sufficiency of the evidence to support his conviction.

Defendant’s in-custody statement to police recited: “I was coming home on Friday night and I met Otis Sanders on High Street. Otis told me that he was going to get me. Me and Otis had had an argument about two or three weeks ago. Otis pulled out his knife and I hit him with my fist in the face before he had a chance to open the blade. Otis fell down in the street and I stomped him in the face with my foot — I think I used my right foot, but I don’t remember. I stomped him several times and when I saw blood coming from his head I got scared and ran home.” This evidence was amply corroborated at trial, and the victim died in the hospital fifteen days later without ever having regained consciousness.

1. Defendant first asserts that there was insufficient proof that he acted unlawfully in striking the victim. There is no factual dispute that defendant acted in self-defense when he first struck the victim. However, the jury was authorized to conclude that defendant’s subsequent “stomping” of the victim while he lay unconscious in the street was use of excessive force. “Self-defense, as its nomenclature implies — is defensive in nature and not offensive. Therefore, it is invoked by necessity and without necessity being present it is inapplicable. Thus, the amount of force which can be utilized is based upon necessity and under no circumstances may legitimate self-defense exceed the bounds necessary for its use. Where the force used exceeds that necessary for defense of the person, the law will consider the defender the aggressor and if his act results in a homicide — the offense is at least manslaughter. See 40 CJS 1018, Homicide, § 131.” Spradlin v. State, 151 Ga. App. 585, 586 (260 SE2d 517) (1979), addendum on remand, 151 Ga. App. 909 (266 SE2d 310) (1980). See generally An derson v. State, 163 Ga. App. 571 (1) (295 SE2d 748) (1982).

Decided February 29, 1988.

James H. Whitmer, for appellant.

C. Andrew Fuller, District Attorney, Joseph A. Homans, Assistant District Attorney, for appellee.

2. It follows from our holding in Division 1, supra, that the evidence was sufficient for the jury to conclude beyond a reasonable doubt that the first strike sustained by the victim was not the cause of death. Cf. Price v. State, 141 Ga. App. 335 (1) (233 SE2d 462) (1977); Powell v. State, 130 Ga. App. 588 (3) (203 SE2d 893) (1974).

3. Defendant’s final enumeration asserts as error the lack of proof that the victim died as a direct, proximate result of the strike or strikes inflicted by defendant because the cause of death was due to an intervening factor: pulmonary embolism. This assertion is controlled adversely to defendant by the holding in Heath v. State, 77 Ga. App. 127 (47 SE2d 906) (1948).

Judgment affirmed.

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


text:
    76215.
    MORGAN v. COLEMAN.
    (366 SE2d 427)
   Deen, Presiding Judge.

The appellant, Robert Morgan, rented a residence from the appellee, Daniel Coleman, from September 1977 through March 1979. When Morgan vacated the premises, Coleman unsuccessfully sued him for damages to the premises. During that civil proceeding, however, Morgan acknowledged that he had punched a hole through the bathroom door with his fist. Subsequently, Coleman swore out a warrant for criminal trespass against Morgan. This charge was eventually dismissed, and Morgan then commenced this malicious prosecution action against Coleman. Coleman moved for summary judgment on the basis that no genuine issue of fact existed over the element of probable cause. The trial court granted that motion, and Morgan appeals. Held:

Morgan contends that, notwithstanding his admission that he had punched a hole through the bathroom door, an issue of fact over probable cause existed because he denied having any intent to damage the property. However, “[t]he overriding question in actions for malicious prosecution is not whether the plaintiff was guilty, but whether the defendant had reasonable cause to so believe — whether the circumstances were such as to create in the mind a reasonable belief that there was probable cause for the prosecution. Tanner-Brice Co. v. Barrs, 55 Ga. App. 453 (2) (190 SE 676). In such prosecutions, the burden of proving want of probable cause is on the plaintiff. Auld v. Colonial Stores, 76 Ga. App. 329, 335 (45 SE2d 827). This burden is not carried in any reasonable sense unless the plaintiff shows that under the facts as they appeared to the prosecutor at the time of the prosecution, that the defendant could have had no reasonable grounds for believing the plaintiff to be guilty of the charge brought. Barber v. Addis, 113 Ga. App. 806 (1) (149 SE2d 833).” Fisher v. Ky. Fried Chicken, 175 Ga. App. 542, 545 (333 SE2d 877) (1985). In the instant case, the trial court properly concluded that Morgan’s admission about punching the hole in the bathroom door provided Coleman with a reasonable basis for believing that Morgan was guilty of criminal trespass.

Decided February 29, 1988.

Charles J. Vrono, for appellant.

Daniel A. Coleman, pro se.

Judgment affirmed.

Carley and Sognier, JJ., concur.