text:
    A96A0957.
    CORNER v. THE STATE. AARON v. THE STATE.
    A96A1724.
    (477 SE2d 593)
   Beasley, Chief Judge.

Corner was charged on August 26, 1995, with driving under the influence of alcohol, OCGA § 40-6-391 (a) (1) and (a) (4), and Aaron was similarly charged on November 5, 1995. Both challenge the trial court’s admission into evidence of the results of their Intoxilyzer 5000 breathalyzer tests on the ground that the regulations permitting the use of the machine are void. They contend the Georgia Bureau of Investigation Division of Forensic Sciences failed in 1994 to follow the Administrative Procedure Act, OCGA § 50-13-1 et seq., in amending the regulations that authorize the use of this machine by law enforcement, so that the tests are void and the test results are inadmissible as evidence against them.

OCGA § 50-13-4 (a) requires an agency to give at least 30 dáys’ notice of its intent to amend a regulation. The notice must clearly identify the rule being amended and include an exact copy and a synopsis of the proposed amendment, which must indicate the purpose and the main features of the proposed amendment and the differences between the existing rule and the proposed rule. The notice must also include the date, time, and place the agency will consider the adoption of the amended rule so that interested persons may present their views. The defendants concede the notice issued by the GBI/DFS fulfilled each of these requirements.

Not in the notice was a “citation of the authority pursuant to which the rule is proposed for adoption.” OCGA § 50-13-4 (a) (1). The statutory authority in this case is OCGA § 40-6-392 (a) (1), which provides that evidence of the amount of alcohol in a person’s system, as determined by chemical analysis, is considered valid and admissible at trial only if the chemical analysis “shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order. . . .” Additional requirements are specified but are not in issue here. Id. The issue is whether the omission of the citation is fatal.

Defendants maintain this case is controlled by the holding in a line of cases beginning with State v. Baker, 146 Ga. App. 608 (247 SE2d 160) (1978), where the statutory predecessor to OCGA § 40-6-392 did not require breath analysis equipment to be approved by the state crime laboratory, but the requirement was nonetheless created by the State Department of Public Safety’s own rules. Id. This Court held that because the State could not produce evidence at trial that the state crime laboratory had approved the, device at issue, the court properly excluded results of the breath test.

Here, the trial court, which was the same in each of these two cases, held the breath test admissible on the ground “that the statute does not require approval of the machine itself. The statute requires that the machine be properly certified, that it have all its working parts in order. The State has met that statutory requirement. That’s all the statute requires.”

To the contrary, approval of the Intoxilyzer 5000 itself is required. OCGA § 40-6-392 (a) (1) states the GBI/DFS must approve the “method” of testing with a particular machine. This inherently includes the machine itself, as it is ah integral part of the “method” of testing, the very instrument on which the method is employed. The method cannot be activated in a vacuum. As the State even explains in its brief, the GBI/DFS rule “enumerates the ‘Intoxilyzer 5000 manufactured by CMI, Inc.’ as the approved method of conducting breath tests after January 1, 1995.” The GBI/DFS was required to sanction its use in accordance with the rule-making requirements of the APA, since rule-making is the vehicle by which agencies take such type of official policy-setting action. See, e.g., Willoughby v. State, 153 Ga. App. 434 (265 SE2d 352) (1980).

The APA, as a statute in derogation of the common law, must be strictly construed, Caldwell v. Corbin, 152 Ga. App. 153, 158 (3) (262 SE2d 516) (1979), but strict construction of OCGA § 50-13-4 (a) does not render the amended rules void on account of the omission. Although we disagree with the trial court’s reasoning, we nonetheless affirm its decisions. A judgment right for any reason will be affirmed on appeal. Precise v. City of Rossville, 261 Ga. 210, 211 (3) (403 SE2d 47) (1991).

OCGA § 50-13-4 (a) provides, “[pjrior to the adoption, amendment, or repeal of any rule,” an agency must comply with, the rule-making procedures. Subsection (d) provides, “No rule adopted after April 3, 1978, shall be valid unless adopted in exact compliance with subsections (a) and (e) of this Code section and in substantial compliance with the remainder of this Code section.” These two subsections, construed together, mean that strict compliance with respect to the citation is necessary only when a rule is being adopted, not when it is being amended or repealed. This makes practical sense. As in this case, there is no possibility of confusion in determining the statutory authority for an existing rule that is being repealed or amended, when that authority has been cited in the publicly accessible existing rules. Nor have defendants claimed any confusion, either with respect to their own involvement with the machiné test in 1995 or with respect to the general public or interested parties when notice of the proposed amendment was .given in 1994. Accordingly, GBI/DFS did substantially comply with the APA requirements in that the notice cited the regulations being amended, Rules 92-3-.02, 92-3-,03, and 92-3-.06, which cite their statutory authority, OCGA § 40-6-392.

Cases defendants cite in support of their position are distinguishable on this ground, including Todd v. State, 205 Ga. 363 (53 SE2d 906) (1949); Dept. of Ed. v. Kitchens, 193 Ga. App. 229 (387 SE2d 579) (1989); and Outdoor Advertising Assn. &c. v. Dept. of Transp., 186 Ga. App. 550, 555 (5) (367 SE2d 827) (1988). In .those instances there was substantial non-compliance with the requirements and substantial harm as a result. The omission in this case does not rise to the same level.

Instead, it is akin in degree to the error committed by the agency in its rule-making in State v. Holton, 173 Ga. App. 241.(326 SE2d 235) (1984), where the rules were inadvertently issued in the name of the agency previously responsible for enacting them. We reiterate the holding of that case as equally applicable here: “[Ajlthough we do not approve of the subject state agencies’ failure to fully comply with the pertinent statutory requirements . . ., we conclude that the . . . rules have been promulgated in substantial compliance with said requirements and, thus, are valid and effective against [the defendants].” (Emphasis omitted.) Id. at 246. Likewise here, the issue-raising failure to cite the authority in the notice of proposed amendment could easily have been avoided.

Decided October 3, 1996

Reconsideration denied October 29, 1996

George A. Stein, Monte K. Davis, for appellants.

Keith C. Martin, Solicitor, for appellee.

Davis, Zipperman, Kirschenbaum & Lotito, Nicholas A. Lotito, Virgil L. Brown & Associates, Bentley C. Adams III, amici curiae.

Defendants argue that a proposed regulation failing to cite its statutory authority should be made especially susceptible to invalidation because of the principle of separation of powers. They point out the APA applies to situations where the legislature defers part of its decision-making authority to the executive branch through its administrative agencies. The rule-publishing requirement ensures the executive branch does not abuse or exceed this power. But as the State points out, it stretches reason to suggest that the omission in this instance, which we perceive to be imprecision due to inattention, constitutes an abuse of power.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Blackburn, Smith, Ruffin and Eldridge, JJ, concur.

       The State does not dispute that the GBI is an agency, OCGA § 35-3-2, and the DFS is a division of that agency, OCGA § 35-3-3, as defined in the APA, and is thus mandated to adhere to requirements of the Act in amending its rules and regulations. See OCGA § 50-13-2(1).


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A96A1322.
    CULLEN v. THE STATE.
    (477 SE2d 620)
   Birdsong, Presiding Judge.

Brian C. Cullen appeals his conviction in October 1995 for driving under the influence of alcohol and failure to maintain lane in November 1994. He contends the trial court erred by denying his motion in limine seeking to suppress evidence of the results from the Intoxilyzer 5000 because the Intoxilyzer 5000 had not been properly approved for use in the state at the time his breath was measured, because a proper foundation was not laid that the machine was operating with all its original components and parts, and because a certificate of calibration and maintenance and a certificate authorizing the Tyrone police to use the machine were not introduced. Held:

1. Cullen’s allegation regarding the approval of the Intoxilyzer 5000 is controlled by Corner v. State, 223 Ga. App. 353 (477 SE2d 593). Accordingly, this enumeration of error is without merit.

Decided October 16, 1996.

Saia & Richardson, Joseph J. Saia, for appellant.

William T. McBroom III, District Attorney, James E. Hardin, Assistant District Attorney, for appellee.

2. Cullen’s allegation that the trial court erred by admitting the results of the Intoxilyzer 5000 because the prosecution did not establish through the certificate required by ÓCGA § 40-6-392 (a) that the Intoxilyzer 5000 had all of its electronic and operating components attached and in working order, however, is controlled in his favor by State v. Hunter, 221 Ga. App. 837 (473 SE2d 192) and State v. Kampplain, 223 Ga. App. 16 (477 SE2d 143). Under OCGA § 40-6-392 (a) and (f) the prosecution was required to introduce the certificate of compliance required by OCGA § 40-6-392 (a). “The plain and unequivocal language of Section 5 of the April 1995 act makes the act retroactively applicable to all pending cases.” State v. Hunter, supra. Accordingly, Cullen’s conviction must be reversed and the case remanded to the trial court with instruction to grant Cullen’s motion to suppress.

3. In view of our disposition in Division 2, Cullen’s other enumerations are moot.

Judgment reversed.

Beasley, C. J., and Blackburn, J., concur.


author: Andrews, Judge.

text:
    A96A1044.
    VIDRINE v. AMERICAN PROFESSIONAL CREDIT, INC.
    (477 SE2d 602)
   Andrews, Judge.

While Kimberly Vidrine was leasing an apartment from Tahoe North Apartments (Tahoe), the apartment was damaged by a fire started by Vidrine’s four-year-old son. Tahoe claimed Vidrine was liable to it under the terms of the lease for approximately $18,900 in fire damage. Metro Atlanta Properties (Metro), as the managing agent for Tahoe, hired American Professional Credit, Inc. (American), a collection agency, to collect the debt from Vidrine. After American initiated collection efforts, Vidrine disputed the debt and sued American alleging in three counts that its actions: (1) violated the Fair Debt Collection Practices Act (FDCPA) (15 USCA §§ 1692-1692o); (2) defamed her and (3) intentionally inflicted emotional distress on her. The trial court granted summary judgment in favor of American on all three counts, and Vidrine appeals.

1. Vidrine alleged in Count 1 of the complaint that American violated §§ 1692e (2) (A), 1692e (7), and 1692e (8) of the FDCPA by making false representations to credit bureaus to which it furnished information concerning the claimed debt and by failing to inform the credit bureaus that she disputed the debt.

In finding there was no evidence that American violated § 1692e (8), the trial court ruled that American had no obligation under the FDCPA to report that the debt was disputed when it furnished information concerning the claimed debt to the credit bureaus. This ruling was clearly erroneous under the circumstances. Section 1692e prohibits a debt collector from using any false or misleading representation in the collection of a debt. Subsection (8) of § 1692e specifically provides that a debt collector violates this section by “[c]ommunicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.”

There was evidence that American sent a dunning letter to Vidrine dated June 17, 1992, in connection with the claimed debt; that, through her attorney, Vidrine responded by disputing the debt pursuant to § 1692g (b) in a letter dated July 9,1992, and that American subsequently sent verification of the claimed debt to Vidrine’s attorney on or about July 14, 1992. See FDCPA § 1692g (a). Although American’s president testified on deposition that, after the verification, American had no further contact with Vidrine or her attorney concerning the claimed debt and closed its file in October 1992, there was also evidence that, when the file was closed, American furnished information concerning the claimed debt to credit bureaus without communicating to the credit bureaus that Vidrine disputed the debt. This evidence was sufficient to create a factual issue on the claim that, while communicating credit information, American violated § 1692e (8) by failing to communicate that Vidrine disputed the debt pursuant to § 1692g (b). See Jeter v. Credit Bureau, 760 F2d 1168, 1175 (11th Cir. 1985) (this amounts to an allegation of a per se violation of section 1692e rather than one controlled by the least sophisticated consumer standard applicable to other § 1692e violations). The trial court erred by granting summary judgment in favor of American on this issue.

It follows that Vidrine retained a viable cause of action under the FDCPA for actual damages (§ 1692k (a) (1)), statutory damages not exceeding $1,000 (§ 1692k (a) (2) (A)), and costs and reasonable attorney fees (§ 1692k (a) (3)). Vidrine also sought emotional distress damages under the FDCPA. As a part of actual damages under the FDCPA, Vidrine was entitled to seek damages for emotional distress caused by American’s alleged FDCPA violation, without proving the elements of the state law tort of intentional infliction of emotional distress. See Teng v. Metro. Retail Recovery, 851 FSupp. 61, 68-69 (E.D.N.Y. 1994); Donahue v. NFS, Inc., 781 FSupp. 188, 193-194 (W.D.N.Y. 1991); Smith v. Law Offices of Mitchell N. Kay, 124 B.R. 182, 184-189 (Bankr. D. Del. 1991); compare Tracy v. Credit Bureau &c., 174 Ga. App. 668, 669 (330 SE2d 921) (1985) (holding that, because remedies under the Federal Fair Credit Reporting Act are of a federal statutory nature, relief in the form of damages is not determined by state court decisions); contra Carrigan v. Central Adjustment Bureau, 502 FSupp; 468, 470 (N.D. Ga. 1980). The trial court erred by granting summary judgment in favor of American on these issues.

Vidrine also contends that American violated either § 1692e (8) or § 1692e (2) (A) of the FDCPA by falsely communicating to credit bureaus that the claimed debt was an installment obligation on an account with Tahoe when it knew the claimed debt arose from fire damages under a lease, and by falsely communicating to the bureaus that the debt claimed by Tahoe was $18,900 when it knew the claimed damages had been partially paid by insurance proceeds. Assuming the claimed debt could be interpreted on the credit bureau reports as an installment obligation, and assuming insurance proceeds received by Tahoe for part of the fire damage reduced the claimed debt, we agree with the trial court that American was entitled to summary judgment on these claims. There is no evidence that American received any information from Tahoe or Metro that the claimed debt was an installment obligation nor is there any evidence that American communicated to the credit bureaus that the debt was an installment obligation on an account with Tahoe. In reporting the claimed debt and the amount of the debt, American relied on information supplied to it by Tahoe and Metro, which it subsequently verified. There is no evidence that American knew or should have known that any information communicated to the credit bureaus may have been false. See FDCPA § 1692e (8).

Since Vidrine provided no argument or citation of authority in her appellate brief regarding the contention that American violated § 1692e (7) of the FDCPA, this claim is deemed abandoned. Court of Appeals Rule 27 (c) (2). The trial court properly granted summary judgment in favor of American on this claim.

2. Vidrine contends the trial court erred by granting summary judgment in favor of American on her state law defamation claim because there was evidence American falsely communicated to the credit bureaus that she borrowed and failed to repay $18,900. As we held in Division 1, even if the credit reports contained inaccurate information that the claimed debt was a type of installment obligation, there is no evidence that American communicated any such false or inaccurate information to the credit bureaus. To the contrary, the evidence showed that, based on information provided to it by Metro and Tahoe, American reported the claimed debt as a collection account and not as an installment obligation. Since American did nothing more than accurately report that the claimed debt had been placed for collection, the trial court properly granted American’s motion for summary judgment on this claim. Spaulding v. Rich’s, Inc., 146 Ga. App. 693 (247 SE2d 218) (1978).

Decided October 9, 1996

Reconsiderations denied October 29, 1996

Albert A. Chapar, Jr., for appellant.

Greer, Klosik & Daugherty, Hollis C. Cobb, for appellee.

3. The trial court also properly granted summary judgment in favor of American on Vidrine’s state law claim that American’s actions constituted an intentional infliction of emotional distress. This claim must be based on evidence of extreme and outrageous conduct by which one intentionally or recklessly causes severe emotional distress. Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 706 (409 SE2d 835) (1991). “Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.” Id. There is no evidence that American knowingly communicated any false information to the credit bureaus. Although American’s failure to communicate that Vidrine disputed the debt may support an award for emotional distress under the FDCPA, it fails to rise to the level of outrageousness and egregiousness required to support a recovery for intentional infliction of emotional distress under state law. See Carruth v. Roberts, 189 Ga. App. 247, 250 (375 SE2d 499) (1988).

Judgment affirmed in part and reversed in part.

Pope, P. J., and Smith, J., concur.


author: Ruffin, Judge.

text:
    A96A1199, A96A1200.
    ARIEMMA et al. v. PERLOW (two cases).
    (477 SE2d 590)
   Ruffin, Judge.

David Perlow, M.D. performed a vasectomy on John Ariemma, after which Ariemma experienced chronic testicular pain. Ariemma sued Perlow for negligence, fraud, battery, and violations of Georgia’s Fair Business Practices Act. Ariemma’s wife sued Perlow for loss of consortium. Perlow moved for summary judgment on the ground that Ariemma’s written request for the vasectomy exempted Perlow from liability under OCGA § 31-20-5. The trial court granted Perlow’s motion in two separate orders, and in these two appeals the Ariemmas challenge those orders. For reasons which follow, we affirm.

“[S]ummary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991). Viewed in this light, the record shows that Ariemma contacted Per-low’s office requesting information concerning a vasectomy. In response to Ariemma’s request, Perlow sent him literature containing general information about the procedure. The literature explained the procedure used, expected results, and the primary risks of infection and bleeding and addressed such concerns as recovery time and the risk of recanalization. After receiving this information, Ariemma made an appointment with Perlow to further discuss the procedure and to have it performed depending on what he learned.

At the appointment, Perlow asked Ariemma if he had read the literature, and Ariemma confirmed that he had. Ariemma testified in his deposition that Perlow then discussed with him everything that was in the literature concerning the procedure, including the risk of recanalization and the fact that Ariemma should consider the vasectomy irreversible. Similarly, Perlow testified in his deposition that during his initial consultation with patients he generally discusses the procedure and its results, then answers any questions the patients may have. Perlow stated that although he could not recall the specifics of his conversation with Ariemma, he “went through a process very much like the process [he goes through with other patients].”

Ariemma stated in his deposition that he asked Perlow “when the pain was going to go away.” According to Ariemma, Perlow answered that he should “[l]ay down for the weekend, let your wife take care of you, don’t run around or you can . . . get real big. . . . After the weekend, you’ll be fine.” When Ariemma asked Perlow whether it would affect him sexually, Perlow told him he had performed 1,500 of them. According to Ariemma, at that point he was “relieved ... of any further questions.”

Following this discussion, Ariemma signed a consent form for Perlow to perform the vasectomy. The form provided as follows: “I give permission to David L. Perlow, M.D. to perform a bilateral vasectomy on myself. I understand that this is a procedure which renders me permanently sterile. I understand that a sterile person is not capable of fathering children. . . . The nature of the Vasectomy procedure has been fully explained to me and understood by me as well as the risks, discomfort, possible complications and benefits. ... I know that no guarantee or assurance has been made to me as to the results that may be obtained. I have read the information sheet and all my questions have been answered.” (Emphasis in original.)

Perlow performed the vasectomy that day. Ariemma went home, stayed in bed for two days, then went back to work. During Ariemma’s second follow-up visit to Perlow five months later, Ariemma complained about pain in his right testicle. According to Ariemma, he has continued to experience chronic testicular pain.

Ariemma does not contend that Perlow was negligent in performing the vasectomy procedure, only that Perlow should have informed Ariemma of the future risk of experiencing chronic testicular pain.

The Georgia legislature has addressed the very issues presented by Ariemma in this appeal. The Georgia Voluntary Sterilization Act, OCGA §§ 31-20-1 to 31-20-6, was enacted in 1966 to limit the liability of qualified physicians who perform sterilization procedures. Dohn v. Lovell, 187 Ga. App. 523 (370 SE2d 789) (1988). OCGA § 31-20-5 provides in pertinent part that when a sterilization procedure has “been performed in compliance with this chapter, no physician duly licensed . . . shall be liable civilly or criminally as a result of such operation or participation therein, except in the case of negligence in the performance of such operation.”

In this case, Ariemma contends that Perlow is not protected by the Act because he did not comply with OCGA § 31-20-2. That section provides that “[i]t shall be lawful for any physician to perform a sterilization procedure upon a person 18 years of age or over . . . provided that a request in writing is made by such person and provided, further, that prior to or at the time of such request a full and reasonable medical explanation is given by such physician to such person as to the meaning and consequence of such operation.” Ariemma contends that Perlow obtained his request in this case through fraud. Specifically, Ariemma argues that in response to his questions, Per-low should have informed him of the long-term risk of chronic testicular pain and that he relied on the fact that no such risk was disclosed in signing the request.

Our appellate courts have held, however, that OCGA § 31-20-2 does not require a physician to disclose the possible risks and complications of the sterilization process. In Robinson v. Parrish, 251 Ga. 496 (306 SE2d 922) (1983), our Supreme Court reviewed the language in OCGA § 31-20-2 that requires the physician give ‘“a full and reasonable medical explanation . . . as to the meaning and consequence of such operation.’” Id. at 496-497. The majority found “these words to mean that the physician must fully inform the patient of the intended results of sterilization, which is the permanent inability to have children.” (Emphasis in original.) Id. at 497. The Court specifically held that “the statute does not require a physidan to disdose the possible risks and complications of the sterilization procedure.” Id. In later cases we elaborated on the disclosure requirements of OCGA § 31-20-2 and found that the statute requires the physician to give a full and reasonable explanation “as to the method to be employed in [the] sterilization operation so that the patient will understand how his or her inability to have children will result.” (Emphasis in original.) Dohn, supra at 525-526. Accord Gowen v. Cady, 189 Ga. App. 473 (2) (376 SE2d 390) (1988).

Decided October 1, 1996

Reconsideration denied October 29, 1996

David S. DeLugas, for appellants.

Harman, Owen, Saunders & Sweeney, H. Andrew Owen, Jr., Rolfe M. Martin, for appellee.

The record in this case shows that Perlow complied with the disclosure requirements of OCGA § 31-20-2. Perlow informed Ariemma that he would perform a bilateral vasectomy, that he would cut the vas deferens to block the flow of sperm, that the procedure would render Ariemma infertile and incapable of fathering children, and that he should consider it irreversible. Whether another physician would have informed Ariemma of the risk of chronic testicular pain does not matter in this case. Under Georgia law, Perlow was not required to inform Ariemma of this risk and his failure to do so did not vitiate Ariemma’s written request. See Dohn, supra. Compare Butler v. Brown, 162 Ga. App. 376, 378 (290 SE2d 293) (1982) (decided under analogous facts but governed by the Georgia Medical Consent Law, which does not apply to voluntary sterilizations. See Robinson, supra at 497).

Because the record shows that Perlow complied with OCGA § 31-20-2, and the Ariemmas have not claimed Perlow was negligent in performing the vasectomy procedure, their claims for negligence, fraud, battery, violations of Georgia’s Fair Business Practices Act, and loss of consortium are barred by OCGA § 31-20-5. See Cummings v. Dudley, 180 Ga. App. 545 (349 SE2d 543) (1986). Although this may seem a harsh result, it is an issue for the legislature to address, not the courts. Accordingly, we must conclude that the trial court did not err in granting Perlow’s motion for summary judgment.

Judgment affirmed.

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


author: Eldridge, Judge.

text:
    A96A2313.
    BROWN v. THE STATE.
    (477 SE2d 623)
   Eldridge, Judge.

Officer Joel McNeal, Columbus Police Department, received a dispatch on August 3, 1994, at approximately 6:50 a.m., to meet a concerned citizen at a restaurant on Victory Drive. Upon arrival, the concerned citizen identified herself to McNeal by name and told him that she was either a co-worker of appellant’s or had some personal relationship with appellant, so that she had detailed knowledge of appellant and his habits; the woman’s name and her exact relationship had been revealed to McNeal, but he had failed to record such information either in his report or notes. This concerned citizen told McNeal that appellant, identified by name, was a habitual violator. The correct name and an accurate physical description of appellant was furnished by this concerned citizen. A detailed description of appellant’s car, including make, model, tag number, and color, as well as where it had been seen in operation by appellant only minutes previously, was provided to officer McNeal by the concerned citizen. The concerned citizen told McNeal that moments prior to his arrival, appellant was seen driving on Fort Benning Road, the vehicle stopped at a restaurant three or four blocks away, and appellant would be leaving shortly from such restaurant to go to work.

The officer found the witness, by her speech, appearance and conduct, to be credible, and she did not appear either intoxicated or angry with appellant. McNeal could not determine any apparent motive for the concerned citizen to provide the information.

While driving to the location of the restaurant on Fort Benning Road, McNeal saw the described vehicle a block south of the described restaurant. McNeal matched the tag number and description of the vehicle to the observed vehicle; the single male occupant also matched the physical description provided by the concerned citizen.

McNeal pulled the appellant over to investigate in order to determine the identity of appellant and the existence or absence of a valid driver’s license in possession of appellant at that time. McNeal did not stop appellant with the intent to arrest him because he had observed no traffic violations and had the report of the concerned citizen as a basis for a stop only. McNeal asked appellant for his driver’s license, and appellant answered immediately that he had no license. After completing a computer check, McNeal determined that appellant had been declared a habitual violator. Only then did McNeal place appellant under arrest.

On October 25, 1994, appellant was indicted as a habitual violator. Appellant filed a motion in limine, which was heard on February 14, 1995; the motion sought to suppress evidence of no license and to quash the arrest. The trial court denied the motion. 'Since the evidence on the motion was the prosecution’s entire case, the trial court sentenced appellant upon denial of the motion. Notice of appeal was filed February 15, 1995.

Appellant’s sole enumeration of error is that the trial court erred in denying the motion in limine. The grounds for the motion in limine were two: first, the officer made an invalid, initial stop; second, the officer failed to advise the appellant of his right to remain silent prior to asking him for his driver’s license.

The officer had, prior to his stop of the appellant, a specific and articulable suspicion that appellant was either a habitual violator driving without a valid driver’s license or was driving without a license in his immediate possession. The concerned citizen furnished timely, accurate, and detailed information, not only as to appellant’s identity and physical description, but also as to the tag and vehicle description, appellant’s present location and expected immediate future conduct. The concerned citizen gained this information from personal knowledge of appellant’s known habits and accustomed conduct. All of this information was verified immediately by the officer just prior to his stopping appellant. Although the officer did not know the concerned citizen or how reliable the information vras, all the specific facts were as the officer had been told, so that there was a reasonable indicia of reliábility for the facts and a reasonable basis upon which to believe that appellant did not possess a driver’s license. Such reasonable belief formed the basis for a reasonable, articulable suspicion to stop appellant within the constitutional parameters of Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968). The officer had, prior to the stop, “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion” to justify a brief investigative stop of the vehicle. Id.; see also Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979); United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975).

This Court, in Easterlin v. State, 216 Ga. App. 112, 113-114 (452 SE2d 801) (1995), a case almost on all fours with the case sub judice, distinguished the facts of the case from the facts in Vansant v. State, 264 Ga. 319 (443 SE2d 474) (1994). The facts and circumstances in this case are even stronger than those in Easterlin v. State, supra, because not only was the officer told directly in great detail as to the identity of the appellant and description of the make, model, year, tag, and location of the car, but the officer was told where the car would go in the immediate future, as well as the specific criminal offense being committed. The officer, prior to the stop, was ablé to verify such specific facts as to reliability; the identity of the tipster was revealed to the officer but not recorded; this was a concerned citizen, not someone who was part of the criminal milieu.

“Although a tip provided by an informant of unknown reliability will not ordinarily create a reasonable suspicion of criminal activity, if the tip is detailed enough to provide some basis for predicting the future behavior of the suspect, reliability may be established if the details are corroborated by the observations of the police.” (Citations omitted.) Stanley v. State, 213 Ga. App. 95, 96 (443 SE2d 633) (1994).

“[T]he tip here was not an anonymous one, it was provided by a paid confidential informant and then transmitted through the channels of police communication. Thus, the tip had more indicia of reliability than an anonymous tip. [Cit.j The tip made a prediction about future behavior and gave specifics regarding the men’s activity. See generally Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990).” Beck v. State, 216 Ga. App. 532, 535 (455 SE2d 110) (1995).

In the case sub judice, the information was provided by a concerned citizen who provided her identity and talked openly and with great specificity about appellant. “A concerned citizen has always been given a preferred status regarding the testing of the credibility of his reported information. Cichetti v. State, 181 Ga. App. 272, 273 (1) (351 SE2d 707) [(1986)].” Hestley v. State, 216 Ga. App. 573, 574 (1) (455 SE2d 333) (1995); see also Whitten v. State, 174 Ga. App. 867, 868 (331 SE2d 912) (1985); Thomas v. State, 173 Ga. App. 481 (2) (326 SE2d 840) (1985); Johnson v. State, 164 Ga. App. 501 (2) (297 SE2d 38) (1982).

The Supreme Court in its holding in Vansant v. State, supra at 320, held, “[t]he U. S. Supreme Court recognized the difficulty in defining ‘the elusive concept of what cause is sufficient to authorize police to stop a person,’ and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981). ‘This demand for specificity in the information upon which police action is predicated is the central teaching of (the Supreme Court’s) Fourth Amendment jurisprudence.’ Terry v. Ohio, supra at 21, n. 18.” In the case sub judice, the police action in stopping appellant had the requisite specificity in the information upon which the stop was predicated so that the constitutional safeguards have been satisfied.

The trial court did not err in denying the motion in limine based upon the alleged invalid, initial stop.

The second basis for the appellant’s motion in limine was that the appellant was not given warnings pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), after he was stopped and prior to any questions being asked of him. The officer, after stopping appellant, said good morning and asked to see appellant’s driver’s license. The officer had only a reasonable, articulable suspicion that appellant had no license and lacked probable cause to arrest, until after he had conducted the investigation; the officer had no intent to arrest appellant at the time of the stop. The stop was to conduct a traffic investigation only. The appellant’s reply that he had no driver’s license furnished the probable cause for the arrest for, at least, driving without a license in possession. It was only then that the officer ran appellant’s name on the computer and learned that appellant had been declared a habitual offender. The question regarding the driver’s license came within seconds after the stop, so that no reasonable person could believe that they were under arrest and that they were not free to leave after the officer had been afforded a reasonable time to finish conducting a traffic investigation. A reasonable person does not mean a person with a guilty conscience who knows as soon as they see the blue light that they will be arrested for matters known to them, but are not as yet known to the police. Carroll v. State, 203 Ga. App. 22, 23 (416 SE2d 354) (1992).

In Hughes v. State, 259 Ga. 227, 228 (378 SE2d 853) (1989), the Supreme Court articulated the test for determining if a traffic stop constituted custodial arrest and not a mere Terry stop, requiring Miranda warnings to be given prior to any questioning. The court held: “[t]he test for determining whether a person is ‘in custody’ at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary.” Under the facts of that case, the driver was told that he was not free to leave and was detained until other officers arrived and conducted an investigation, which was more than just a temporary investigative detention.

The Supreme Court, in Lebrun v. State, 255 Ga. 406, 407 (3) (339 SE2d 227) (1986), held that “[w]hen a violator is placed in custody or under arrest at a traffic stop the protection of Miranda arises; however, roadside questioning at a routine stop does not constitute a custodial situation. Berkemer v. McCarty, 468 U. S. 420 (104 SC 3138, 82 LE2d 317) (1984).” See also Steward v. State, 182 Ga. App. 659, 660 (356 SE2d 890) (1987); Tibbs v. State, 207 Ga. App. 273 (427 SE2d 603) (1993).

“As a general rule, ‘(o)ne who is the subject of a general on-the-scene investigation is not in custody. Shy v. State, 234 Ga. 816, 820 (218 SE2d 599) (1975).’ Glass v. State, 166 Ga. App. 225, 226 (303 SE2d 764) (1983).” Mason v. State, 177 Ga. App. 184, 185 (338 SE2d 706) (1985). “Police officers at the scene of a traffic stop may conduct a general on-the-scene investigation, which may even require that persons be temporarily detained, without such being classified as custodial interrogation.” Metheny v. State, 197 Ga. App. 882, 884 (400 SE2d 25) (1990).

In State v. Pastorini, 222 Ga. App. 316, 317-318 (1) (474 SE2d 122) (1996), this Court explained custody for purposes of Miranda, “[t]he, Supreme Court also held that the safeguards prescribed by Miranda become applicable only after a detainee’s ‘freedom of action is curtailed to a “degree associated with formal arrest.” (Cit.)’ Id. at 440. The rationale behind the holding is that although an ordinary traffic stop curtails the freedom of action of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee’s exercise of his privilege against self-incrimination so as to require that he be advised of his constitutional rights. . . . The fact that an officer retains a detainee’s license for a short period during the course of an investigation does not necessarily mean that the detainee is in custody, even if at that point, by leaving, the detainee could be arrested for violating State law. See [Crum v. State, 194 Ga. App,. 271, 272 (390 SE2d 295) (1990)], where we found a driver who could not show proof of insurance during a routine traffic stop, and thus could have been arrested if he attempted to leave, was not ‘in custody’ until after he had been given field sobriety tests and formally arrested.”

“In determining whether a suspect was in custody for Miranda purposes, ‘a court must examine all of the circumstances surrounding the interrogation[,] but “the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest,” (Cits.)’ Stansbury v. California, 511 U. S. _ (II) (114 SC 1526, 128 LE2d 293) (1994). The ‘ultimate inquiry’ is a mixed question of law and fact. . . . Thompson v. Keohane, 516 U. S. _ (II) (B) (116 SC 457, 133 LE2d 383) (1995), recently reaffirmed that in making- this determination, the court must first ascertain the circumstances surrounding the interrogation. This is a purely factual determination and receives deferential review on appeal. Second, given those circumstances, the court then must determine if a reasonable person would have believed he or she was not at liberty to terminate tbe interrogation and leave. ... A reasonable person test, rather than the four-factor test applied in earlier decisions, applies to determine whether an individual not formally arrested is nevertheless in custody for Miranda purposes. . . . A ‘reasonable person’ has. been defined as ‘oné “neither guilty of criminal conduct and thus apprehensive, nor insensitive to the seriousness of the circumstances.” ’ [Cit.]” State v. Wintker, 223 Ga. App. 65, 66-67 (476 SE2d 835) (1996).

There was no custodial detention or arrest upon stopping that a reasonable person would believe had occurred in the few seconds required for the officer to ask for appellant’s license. Thus, the trial court did not err in denying the motion in limine based on the officer’s failure to give appellant Miranda warnings during that time interval.

Decided October 21, 1996

Reconsideration denied October 29, 1996

Michael E. Garner, for appellant.

J. Gray Conger, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Pope, Presiding Judge.

text:
    A96A1059.
    BATTISTA v. THE STATE.
    (477 SE2d 665)
   Pope, Presiding Judge.

Alan Battista was tried and convicted of trafficking in cocaine by a Gwinnett Superior Court and appeals, arguing that his conviction violated the protections against double jeopardy. After reviewing the matter, we reject Battista’s arguments and affirm the judgment.

Battista entered into a stipulation of evidence for the November 6, 1995 bench trial underlying this appeal. The stipulated facts were that special agents from the United States Drug Enforcement Agency, along with Gwinnett County police officers, conducted a drug investigation in Gwinnett County and discovered that Battista had more than 28 grams of cocaine, which he was trying to sell. Battista was the owner and operator of a laundry business at 285 Pine Street, Lilburn. The officers approached Battista at his laundry business and conducted a consensual search, which led to the discovery of more than 28 grams of cocaine. Battista was arrested for possession of the cocaine.

Before trial, Battista filed a motion in bar of prosecution and to enjoin the proceedings pursuant to the double jeopardy provisions of the United States and Georgia Constitutions and of OCGA § 16-1-8 (c). His motion was based on a previous civil federal forfeiture action under 21 USC § 881, which the federal government had filed in the United States District Court for forfeiture of the 285 Pine Street property. Battista was served with process in that action and filed a claim and/or answer to that complaint. On December 21, 1994, Battista had entered into a consent judgment regarding the matter.

The superior court denied Battista’s motion, judgment was entered and this appeal followed.

1. In three enumerations, Battista claims that the subsequent state criminal prosecution violated the double jeopardy clauses of the United States and Georgia Constitutions and of OCGA § 16-1-8 (c). “The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or limb.’ The Georgia Constitution also contains a double jeopardy clause which provides ‘(n)o person shall be put in jeopardy of life or liberty more than once for the same offense.’ Ga. Const. 1983, Art. I, Sec. I, Par. XVIII. The double jeopardy clause ‘protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.’ Moser v. Richmond County Bd. of Commrs., 263 Ga. 63 (428 SE2d 71) (1993) (citing North Carolina v. Pearce, 395 U. S. 711, 717 (89 SC 2072, 23 LE2d 656) (1969)).” Clark v. State, 220 Ga. App. 251, 252 (469 SE2d 250) (1996).

In resolving this matter, we note that in Murphy v. State, 219 Ga. App. 474 (465 SE2d 497) (1995), aff’d, 267 Ga. 120 (475 SE2d 907) (1996), this Court concluded, and our Supreme Court affirmed, that a previous state civil forfeiture proceeding did not prohibit further prosecution on the criminal charge. Nevertheless, citing Austin v. United States, 509 U. S. 602 (113 SC 2801, 125 LE2d 488, 503) (1993), this Court previously has distinguished the federal forfeiture statute by stating that “punishment has been found to be one purpose of forfeitures under 21 USC § 881 (a) (4) and (7).” Waye v. State, 219 Ga. App. 22 (464 SE2d 19) (1995). See also Thorp v. State, 264 Ga. 712, 715 (3) (450 SE2d 416) (1994); Clark v. State, 220 Ga. App. 251.

Here, citing Austin v. United States, and United States v. Halper, 490 U. S. 435 (109 SC 1892, 104 LE2d 487) (1989), Battista argues that because he was punished under the federal forfeiture statute, the criminal action was barred by double jeopardy. The United States Supreme Court recently rejected this argument in United States v. Ursery, 518 U. S._(116 SC 2135, 135 LE2d 549) (1996). In that case, the court stated that historically, in rem civil forfeitures have been viewed as remedial civil sanctions, distinct from potentially punitive in personam civil penalties such as fines, and do not constitute punishment under the double jeopardy clause. The court reviewed the narrow holdings of Halper, Austin, and Dept. of Revenue of Montana v. Kurth Ranch, 511 U. S._(114 SC 1937, 128 LE2d 767) (1994), and concluded that nothing in those cases “purported to replace our traditional understanding that civil forfeiture does not constitute punishment for the purpose of the Double Jeopardy Clause.” Ursery, 135 LE2d at 567-568. The court then conducted a two-part inquiry of the specific statutes in question as to: 1) whether Congress intended proceedings under 21 USC § 881 to be criminal or civil; and 2) “whether the proceedings are so punitive in fact as to ‘persuade us that the forfeiture proceeding(s) may not legitimately be viewed as civil in nature,’ despite Congress’ intent.” (Citations omitted.) Ursery, 135 LE2d at 568. Under this analysis, the court concluded that the civil forfeiture actions under 21 USC § 881 were neither punishment nor criminal for purposes of the double jeopardy clause.

Decided October 29, 1996.

Fletcher W. Griffin III, for appellant.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

Similarly, in the instant case, Battista’s arguments fail and the rationales of United States v. Ursery and Murphy v. State control. See generally Moser v. Richmond County Bd. of Commrs., 263 Ga. at 63 (1). Therefore, we find no violation of the Georgia or United States constitutional provisions against double jeopardy, nor do we find any violation of OCGA § 16-1-8 (c).

2. Given our consideration of these issues, we need not address Battista’s additional arguments.

Judgment affirmed.

Andrews and Smith, JJ, concur.


text:
    A96A1135.
    SMITH et al. v. TURNER.
    (477 SE2d 663)
   Andrews, Judge.

The central issue in this appeal is whether the wills executed by Marcus Smith and Inez Smith were mutual wills under OCGA § 53-2-51. The trial court determined they were not mutual wills and granted summary judgment to Turner. We affirm.

On January 23, 1991, Marcus Smith and his wife of 45 years, Inez Smith, both executed wills in the presence of each other and two witnesses. Marcus’ will provided in pertinent part: “I give, bequeath and devise to my wife Inez Ellison Jackson Smith, all my property both real and personal in fee simple. In the event my wife named herein does not survive me, I give, bequeath and devise all my property both real and personal, in fee simple to any child or children that survive me, share and share alike.”

Inez Smith’s will provided: “I give, bequeath and devise to my husband Marcus A. Smith, all my property both real and personal in fee simple. In the event my husband named herein does not survive me, I give, bequeath, and devise all my property both real and personal, in fee simple, to any child or children of my husband that survive me, share and share alike.”

Marcus Smith died on August 11, 1991. Donald Turner, his executor, filed a petition to probate on August 19, 1991. On October 2, 1991, Gary and Philip Smith, two of Marcus’ sons, filed a caveat to Marcus’ will, alleging the will was invalid due to lack of capacity, fraud, mistake, and undue influence. Subsequently, on October 7, 1991, Inez Smith executed a new will in which she left $50,000 to the animal shelter, some land for a pet cemetery to be maintained for 40 years after her death, and the remainder of her estate to Donald Turner, her executor.

After a hearing on the caveat to Marcus’ will, the court ruled in favor of the propounder and admitted the will to probate. Gary and Philip Smith appealed, but later dropped the appeal and filed the instant lawsuit with another brother, Maurice, through his guardian and sister, Betty Jackson. In this lawsuit, they alleged Marcus’ will was valid, that he and Inez Smith executed mutual wills, and requested specific performance of the contract between Inez Smith and their father.

1. OCGA § 53-2-51 provides, in pertinent part: “(b) Except for mutual wills based on express contract, no wills shall be or shall be construed to be mutual wills unless there is contained in both wills an express statement that the wills are mutual wills.”

In interpreting this statute, the Georgia Supreme Court held that “[t]he purpose of this provision (Ga. L. 1967, p. 719) was to eliminate the uncertainty that had crept into the law through the practice of courts, on an ad hoc basis, of finding wills to be ‘mutual’ by implication” (Footnote omitted; emphasis in original.) Coker v. Mosley, 259 Ga. 781 (387 SE2d 135) (1990).

Here, there is no express statement in the wills that the wills are mutual wills. The question then becomes whether there is any evidence of an express contract to make or to refrain from revoking a will. See id.

“An express contract is an actual agreement of the parties, the terms of which are openly uttered or declared at the time of making it, being stated in distinct and explicit language, either orally or in writing.” Black’s Law Dictionary, p. 323 (6th ed. 1990).

Appellants argue the existence of an express agreement by claiming that both Marcus and Inez told Marcus’ children that Marcus was leaving everything to Inez, who would then leave everything to Marcus’ children. They also point out Inez Smith’s deposition testimony as follows: “Q. What I really want to ask you about is: Did you and Mr. Smith agree that you would — that he would leave things to his children and that you would leave things to his children? A. Right. That was perfectly agreeable. Q. And you had no problem with that? A. No problem whatever, because I thought that’s the way it should be if they had behaved themselves.”

Decided October 29, 1996.

Hoke J. Thomas, Jr., Ivan A. Millender, for appellants.

Kirby & Roberts, Louis J. Kirby, for appellee.

Inez Smith explained this remark later in her deposition in response to a question as to why she changed her will. “The main reason is because my husband told me if any of his children contested his will, he said, you’ve got a will of your own; you change that will and cut them off without a penny. Now that’s the main reason I did it.”

“A contract upon which specific performance is sought must be certain, definite, and clear, and so precise in its terms that neither party can reasonably misunderstand it.” (Citations and punctuation omitted.) Wilson v. Nichols, 253 Ga. 84, 85 (316 SE2d 752) (1984). Here, there is no evidence which rises to the level necessary to find an express contract between Inez and Marcus Smith to make mutual wills. Although the testimony of Marcus’ children would seem to imply an agreement, the Georgia Supreme Court has expressly disapproved of finding wills to be mutual by implication. Further, there is Inez Smith’s deposition testimony which tends to show the wills were not intended to be mutual and that Marcus expressly approved the revocation of Inez’s will if his children should contest his will.

Accordingly, we find no evidence of an express contract to make mutual wills. Therefore, the trial court did not err in granting summary judgment on this issue.

2. We do not address the remaining enumerations of error as appellants have acknowledged the remaining claims are based upon their standing as legatees under mutual wills.

Judgment .affirmed.

Pope, P. J., and Smith, J., concur.

       Inez Smith was Marcus’ second wife and had no children of her own.

       This question appears to be misleading. Marcus Smith left his property to his children in the event Inez did not survive him.


text:
    A96A1332, A96A1333.
    FIRST UNION NATIONAL BANK OF GEORGIA v. COOK; and vice versa.
    (477 SE2d 649)
   Birdsong, Presiding Judge.

In Case No. A96A1332, First Union National Bank of Georgia appeals from a judgment for $350,000, based upon a jury verdict, on Howell T. Cook’s claims that First Union wrongfully foreclosed on his property and breached its contract with him by wrongfully foreclosing after the security deed had been marked paid.

In 1988 Cook borrowed $50,000 from First Union, signed a note promising repayment of the loan in 90 days, and also executed a security deed giving First Union a power of sale over property on which Cook was constructing a house. The security deed also included a drag-net clause extending the deed as security for any future indebtedness Cook might incur to First Union. Cook did not pay this note as required by its terms, and First Union extended the note several times.

First Union and Cook decided in 1989 that Cook would pay off the 90-day note with the proceeds of a loan payable in ten years. First Union describes the process as essentially one transaction with one note replacing the other, but Cook contends there were two loans with the second paying off the first. Cook also maintains that the second loan was intended to be an unsecured loan. In any event, Cook executed a second note and did not execute a security deed for the second note. Some days later, Cook received from First Union the first note and the security deed both stamped paid.

When Cook fell behind on his payments on the first mortgage on the property and the holder of the first mortgage instituted foreclosure proceedings, First Union also instituted foreclosure proceedings because Cook was also behind on his payments on First Union’s loan. Although Cook borrowed funds sufficient to make the payments current on the first mortgage, he did not do so with the First Union payments, and First Union continued with its foreclosure proceedings because its security position had been placed in jeopardy.

After learning that First Union intended to foreclose, Cook advised First Union on more than one occasion that it could not foreclose because the bank no longer had a security interest in the property as he had the paid security deed. Nevertheless, First Union foreclosed on the property, purchased the property for $35,000, and later sold the property to a third party for $78,500. Cook then instituted this action which led to the verdict and judgment in his favor.

First Union contends the trial court erred by admitting the testimony of Cook’s expert witness regarding non-payment on intangible tax as a bar to foreclosure, by excluding First Union’s expert witness during the testimony of Cook’s expert witness, by failing to take adequate curative measures after improper remarks by Cook’s counsel during closing argument, by entering judgment on an excessive verdict, by refusing to direct a verdict on the wrongful foreclosure and breach of contract claims, by granting certain of Cook’s requests to charge, and by refusing to give certain of First Union’s requests to charge.

In Case No. A96A1333, Cook appeals the trial court’s grant of a directed verdict on his claim for punitive damages, by granting summary judgment to First Union on his claim for attorney fees and expenses of litigation, by excluding evidence on whether the property foreclosed upon sold for its fair market value at the foreclosure sale and excluding evidence of First Union’s bid analysis, and by excluding evidence of First Union’s draft foreclosure manuals. Held:

Case No. A96A1332

1. First Union contends the trial court erred by allowing testimony of Cook’s expert witness regarding non-payment of intangible tax as a bar to foreclosing on the property securing the debt because the witness and the issue were not identified in the pretrial order. First Union also contends the trial court erred by not granting a mistrial or a continuance on the basis of this testimony and also erred by refusing to grant a new trial.

Although First Union complains that a witness not listed on the pretrial order was allowed to testify, Cook’s witness was allowed to testify because First Union requested to call an expert witness on matters concerning recording documents, who also was not listed in the pretrial order, and the trial court thus allowed Cook to call his witness, who also was an expert on recording documents. Additionally, it is not correct to say that this issue was not reflected in the pretrial order. This evidence was relevant to the issue of wrongful foreclosure which was identified in the pretrial order. Further, First Union did not make a contemporaneous objection to this testimony, but instead allowed the witness to testify about this matter both on direct and cross-examination without objection. Under these circumstances, we find that First Union has waived any objection regarding this testimony. Sharpe v. Dept. of Transp., 267 Ga. 267 (476 SE2d 722). Although the Sharpe decision was handed down by our Supreme Court after the trial of this case, appellate courts must apply the law as it exists at the time of the appellate court judgment. Clary v. State, 151 Ga. App. 301 (259 SE2d 697). Also, even though this witness did testify about the effect of the failure to pay the intangible taxes on a foreclosure, his testimony was cumulative to testimony on cross-examination from First Union’s own expert to which there was no objection. Accordingly, we find no reversible error. Harris v. Tatum, 216 Ga. App. 607, 611 (455 SE2d 124). Therefore, the trial court did not err by refusing to grant a mistrial or by refusing to grant First Union’s request for a three-week continuance to determine whether the tax payments were required or had been made.

2. First Union further contends the trial court erred by excluding its appraiser from the courtroom while Cook’s appraiser testified. Pretermitting whether the trial court misapplied “the rule” is whether First Union has demonstrated any harm from the error asserted. As First Union has not done so, we find no reversible error. A party seeking a reversal must show not only error, but injury arising from the error alleged. Ga. Power Co. v. Bishop, 162 Ga. App. 122, 126 (290 SE2d 328). Although we do not agree with excluding the appraiser from the courtroom, this record does not support a reversal on this basis.

3. First Union also contends the trial court erred by refusing to grant a mistrial after Cook’s attorney in closing argument commented on the report of Cook’s appraiser that was excluded from the evidence because the expert had testified about the substance of the report. In passing on motions for mistrial, a trial judge has broad discretion that will not be disturbed unless manifestly abused. Thus, unless it is apparent that a mistrial is essential to preservation of the right of fair trial, appellate courts will not interfere with the exercise of discretion by the trial judge. American Assn. of Cab Cos. v. Egeh, 205 Ga. App. 228, 230 (421 SE2d 741); Towns v. State, 191 Ga. App. 229, 230 (381 SE2d 405). Whether a trial court takes sufficient measures to remove improper matters from the minds of the jury generally depends upon the circumstances of the case. In this appeal, we cannot conclude the trial court’s response to the improper argument was so inadequate as to require a new trial. Purvis v. Toole, 207 Ga. App. 189, 190 (427 SE2d 565). See Brown v. State, 264 Ga. 48, 49 (441 SE2d 235); Chancey v. State, 256 Ga. 415, 435 (10) (349 SE2d 717). Here, considering the comment made concerned evidence that was before the jury in another form, we are satisfied that the trial court did not abuse its discretion.

4. First Union further contends the trial court erred by denying its motion for directed verdict and judgment n.o.v. on Cook’s claims for breach of contract and wrongful foreclosure. “In determining whether the trial court erred by denying [First Union’s] motion[ ] for a directed verdict and motion for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict (and judgment n.o.v.) is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict.” (Citations and punctuation omitted; emphasis in original.) Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268). “The motion for judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a one-way verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.” (Citations and punctuation omitted.) Denson v. City of Atlanta, 202 Ga. App. 325, 326 (414 SE2d 312). As there was evidence from which the jury could conclude that First Union foreclosed based upon a “paid” security deed that was not intended to serve as security for the second loan, we find sufficient evidence on both of these claims to warrant their submission to the jury.

Further, First Union’s arguments on this issue are based upon accepting only its view of the evidence. Although First Union may point to evidence supporting its position that the security deed was mistakenly marked paid and the dragnet clause in the security deed was intended to apply to the second loan, this evidence is not conclusive; Cook can point to the same and other evidence as support for his position that the deed was marked paid because it was not intended as security for the second loan. Under our law, it was the jury’s obligation to decide this factual dispute, and it did so in Cook’s favor.

5. First Union contends the trial court erred by giving several charges Cook requested because the charges were not raised by the evidence, unduly emphasized an issue, or were based on a theory that First Union felt was not legitimately before the jury. Neither the objections stated in the trial court nor the argument in First Union’s appellate brief fully discusses the basis for the objections. Nevertheless, we have considered the jury instructions given as a whole (Hambrick v. State, 256 Ga. 688, 690 (353 SE2d 177); Smith v. State, 202 Ga. App. 701, 702 (415 SE2d 495)) and have determined that the charges First Union complains of did not constitute reversible error. Charges are authorized by the evidence if there is some evidence from which a legitimate process of reasoning can.be carried on in respect to the charges (T. G. & Y. Stores Co. v. Waters, 175 Ga. App. 884, 886 (334 SE2d 910)), even if the preponderance of the evidence is to the contrary. Lyles v. State, 130 Ga. 294 (60 SE 578). As the full charge given adequately instructed the jury on the law applicable in this case, we find this enumeration of error to be without merit.

6. First Union alleges the trial court erred by refusing to give certain of its requested charges, and the transcript shows that First Union’s objections to the trial court’s refusal to give these charges generally consisted of stating that First Union objected to the failure to give a numbered charge. Such objections, however, are insufficient to preserve the issue on appeal. Lissmore v. Kincade, 188 Ga. App. 548, 551 (373 SE2d 819). The objection must be stated distinctly so that a reasonable trial judge could understand the nature of the objection and rule intelligently on the specific point. Christiansen v. Robertson, 237 Ga. 711, 712 (229 SE2d 472). Further, although First Union’s enumeration of error asserts the trial court erred by refusing to give 11 of its requested charges, its entire argument in support of this enumeration, less authorities cited, consists of the following: “The trial court’s refusal of a requested charge over objection is error and grounds for a new trial where the evidence raises the issue to which the charge relates or otherwise warrants the giving of the charge. [Cits.] A failure to charge on any theory of defense is harmful as a matter of law. [Cit.] Defendant’s Requests to Charge Nos. 12, 13, 20 (in part), 37, 41, 42, 49, 53, 54, 55, and 62 were all authorized by the evidence and formed an integral part of First Union’s defense. The failure to give the charges unnecessarily harmed and prejudiced the defendant.” This argument is insufficient to show that the failure to givé any particular charge was error, that First Union was harmed thereby, or that the full charge given was not adequate. Therefore, we find that First Union has not shown harmful error in the trial court’s refusal to give these charges. Further, it is not error to fail to charge in the exact language of a requested charge if the principles of law embodied in the request are included in the charge given. Church’s Fried Chicken v. Lewis, 150 Ga. App. 154, 160 (256 SE2d 916).

7. We find no merit to First Union’s contention that the trial court entered judgment on an excessive verdict. The amount of damages authorized for the wrongful foreclosure claim is a matter committed to the jury, and the jury is not bound even by the opinions of the experts. Verdicts on such claims will not be set aside absent evidence the verdict was the result of prejudice, gross mistake, or bias. Curl v. First Fed. Sav. &c., 243 Ga. 842, 844 (257 SE2d 264); Dept. of Transp. v. Delta Machine &c. Co., 157 Ga. App. 423, 428 (278 SE2d 73). In this case, there was a wide range in the value placed on the property by the experts: First Union’s expert testified that the value of the property was approximately $100,000, and Cook’s expert witness testified that the value was $250,000 based upon a completed value of $625,000. Also, the expert testimony was not the only evidence the jury had available for their consideration. Several photographs of the house and significant detailed testimony concerning the condition of the house were presented so that the jury independently could determine the value of the property. Further, as acknowledged by one expert, placing a value on property is not an exact science. Consequently, the jury could have concluded legitimately that a very large home on a five-acre tract in a desirable location was worth more than the value placed upon it by the experts. Under the evidence presented, there is nothing in the record to justify an inference of gross mistake or undue bias. Therefore, we cannot conclude that the verdict was excessive as a matter of law. Id.

Case No. A96A1333

8. Cook contends the trial court erred by granting First Union’s motion for a directed verdict on his claim for punitive damages. We agree.

“Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” OCGA § 51-12-5.1 (b); Cullen v. Novak, 201 Ga. App. 459, 460 (411 SE2d 331). Although punitive damages cannot be imposed without a finding of some form of culpable conduct (Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (365 SE2d 827)), Cook presented evidence showing that First Union pursuéd the foreclosure .even though Cook had made it known that his security deed had been marked paid, that First Union had a policy of foreclose first and ask questions later, and that First Union foreclosed on the property without paying the intangible tax.

This evidence, if believed by the jury, could authorize the award of punitive damages; evidence of a conscious and deliberate disregard of the interests of others that may be called wilful or wanton will support punitive damages. Cullen v. Novak, supra at 460. Whether Cook’s evidence of conscious indifference to the consequences, i.e., the intentional, knowing or wilful disregard of the rights of another, was sufficient to warrant imposition of punitive damages was a question for the jury. Read v. Benedict, 200 Ga. App. 4, 7 (406 SE2d 488). Accordingly, we find that the trial court erred by granting First Union’s motion for a directed verdict on this claim. Upon remand, the trial court is directed to employ the bifurcated procedures in OCGA § 51-12-5.1 to determine whether punitive damages should be awarded and, if so, how much.

9. We also agree that the trial court erred by granting First Union’s motion for summary judgment on Cook’s claim for attorney-fees and expenses of litigation. The trial court granted summary judgment on Cook’s claims under OCGA §§ 9-15-14 and 51-7-83 because the motions were premature. As summary judgment would constitute ¿ ruling on the merits of these claims, however, the trial court grant of summary judgment would prevent a decision on these motions when these claims would be ripe for adjudication. Therefore the grant of summary judgment on this basis cannot stand. Further, the trial court erred by concluding that the motion seeking fees under OCGA § 9-15-14 was premature; OCGA § 9-15-14 (e) authorizes the filing of such a motion at any time during the action up to 45 days after judgment.

Although the trial court may have correctly concluded that there was a bona fide controversy, the existence of such a controversy will not defeat a claim for attorney fees and expenses of litigation under OCGA § 13-6-11 when bad faith is an issue. See Fuel South v. Metz, 217 Ga. App. 731, 732-733 (458 SE2d 904); Steele v. Gold Kist, 186 Ga. App. 569, 571 (368 SE2d 196). Given the evidence that First Union foreclosed on the property notwithstanding its knowledge that Cook’s security deed had been marked paid, a jury question existed on whether the foreclosure was undertaken in bad faith. First Union Nat. Bank &c. v. Davies-Elliott, Inc., 215 Ga. App. 498, 502 (452 SE2d 132); Ostrom v. Kapetanakos, 185 Ga. App. 728, 729 (365 SE2d 849). Accordingly, the trial court erred by granting summary judgment on Cook’s claim under OCGA § 13-6-11.

Therefore, the grant of summary judgment on Cook’s claims under OCGA §§ 9-15-14 and 51-7-83 is vacated pending a ruling when such claims are ripe for adjudication, and the grant of summary judgment in Cook’s claim under OCGA § 13-6-11 is reversed. The claim under OCGA § 13-6-11 may be presented when the jury considers First Union’s liability for punitive damages.

10. The trial court did not err by excluding evidence of drafts of First Union’s foreclosure manuals. A trial judge may exercise his discretion to exclude relevant evidence if he finds that its probative value is substantially outweighed by the risk that its admission will create substantial danger of undue prejudice or of misleading the jury. Friedman v. Friedman, 259 Ga. 530, 532 (384 SE2d 641); Kane v. Cohen, 182 Ga. App. 485, 487 (356 SE2d 94). Here, the evidence shows that the drafts Cook sought to introduce were being prepared for use in North Carolina, not Georgia. Under these circumstances, these drafts were not relevant.

11. Conversely, we find that the trial court erred by excluding the evidence concerning First Union’s instructions to the agent who was to make the foreclosure sale and its bid schedules. “[T]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.” (Citation and punctuation omitted.) Dept. of Transp. v. Swanson, 191 Ga. App. 752, 754 (382 SE2d 711). This evidence was related to Cook’s claim for punitive damages and

Decided October 29, 1996

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Peter L. Lublin, for appellant.

A. Thomas Stubbs, for appellee.

should be admitted when the hearing on those damages is conducted.

Judgment affirmed in Case No. A96A1332. Judgment reversed with direction in Case No. A96A1333.

Beasley, C. J., and Blackburn, J., concur.


text:
    A96A1334.
    DOBBS v. THE STATE.
    (477 SE2d 657)
   Andrews, Judge.

Felipe Dalton Dobbs appeals his convictions of four counts of burglary and one count of theft by receiving, contending that his confession was improperly admitted, denial of his motion to suppress was error, the evidence was insufficient, evidence of an uncharged crime was improperly admitted, and the court exhibited a “prosecutorial manner.”

1. We consider the challenge to the sufficiency of the evidence first. In so doing, we view all the evidence in the light most favorable to the verdict, keeping in mind that an appellate court does not weigh the evidence or determine witness credibility, but only determines the legal sufficiency of the evidence under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Brewer v. State, 219 Ga. App. 16, 17 (1) (463 SE2d 906) (1995).

So viewed, the evidence was that the homes of King (Count 2), Luttrell (Count 3), and Drake (Count 5) were all burglarized between November 18, 1993 and January 4, 1994. Also, on December 29, 1993, a black 1992 GMC pickup truck and a trailer full of lawn equipment were taken from the driveway of Mabry during the night (Count 6). All the homes were located in the same general area near Lawrenceville and Lilburn. Drake’s home had previously been burglarized in 1991 (Count 1).

During the night of September 20, 1991, the Drakes’ Swarthmore Drive home was broken into while they were sleeping. Entry was obtained through the locked back door, although no damage to the door was noted. A camera, Mr. Drake’s wallet containing $1,200 cash, his keys and watch, his wife’s and daughter’s purses, and a book bag were taken. All these items were taken from the kitchen/ bar area. When the theft was discovered, the Drakes found the two purses, with all money missing, by the side of their garage, along with the book bag. Nothing else was ever recovered from this burglary.

On January 4, 1994, Ms. Drake’s car window was forced open and her garage door opener removed from the car which was in the driveway. The garage door was opened with the opener and entry made into the house through the locked door into the kitchen. Again, no damage was noted to the door. The family was asleep upstairs and, from the kitchen/bar area, Mr. Drake’s watch, new camera and a GE camcorder, his wife’s and daughter’s purses, and jewelry belonging to him and his wife were taken, along with a set of keys. His ring had the initials “R. D.” engraved in it and the keyring had a picture of him and Ms. Drake on it. The garage door opener was also taken.

On November 18, 1993, on Shannon Way in Lawrenceville, the King home was entered during the night through a living room front window. The screen had been removed and the window was left up. From the kitchen/dining room area, Ms. King’s purse containing her credit cards and checkbook, her cellular phone, a compact disc player and over 300 compact discs were stolen. The keys to her 1993 Dodge Stealth were in her purse and the car was also stolen.

The Luttrell home on Freeman Drive in Lilburn was broken into on December 27, 1993. The garage had been entered through a pedestrian door and there were no signs of forced entry. A 1991 Suzuki 250, partially disassembled, was taken from the garage by rolling it out the pedestrian door. A second motorcycle was also rolled out of the garage, but was left outside.

On December 28, 1993, Mabry woke to find his black 1992 GMC extended cab pickup missing. Attached to the truck was a trailer full of lawn equipment used in Mabry’s landscaping business. The truck had been parked in his driveway and Mabry did not give anyone permission to take the truck. A spare set of keys was kept in the truck cab. There was a pair of pruners in the back seat of the truck. Mabry saw the pickup after it was recovered from Dobbs’ apartment parking lot and the rear window had been broken to gain entry.. His trailer with most of the lawn equipment still on it was retrieved from another apartment complex parking lot near Dobbs’ apartment.

On January 9, 1994, an officer investigating a traffic accident on Jimmy Carter Boulevard discovered that one of the drivers, Marty Apgar, was driving with a suspended license and was wanted on a Walton County warrant for failure to appear. Upon taking Apgar into custody, the officer discovered a small bag in his jacket. The bag contained jewelry, including a woman’s watch, opal ring and earrings, and a man’s ring with the initials “R. D.” Also, Apgar was wearing Drake’s watch and Drake’s checkbook was found in his vehicle. Marijuana, along with a pipe and “roaches,” was also found.

Apgar initially stated that the jewelry belonged to his girl friend, but she was called to the scene and denied it was hers. Apgar denied that the larger quantity of marijuana was his or that he knew the checkbook was in the vehicle. He said a friend must have left it, but when asked for the name, requested an attorney. Apgar was charged with theft by receiving and identified Dobbs as the one who sold him the jewelry. Apgar had known Dobbs for three or four years and knew he lived at the Sweetwater Glenn Apartments. Apgar said he met Dobbs at a gas station on January 6, 1994 and Dobbs sold him the jewelry for $60 or $75. Dobbs told Apgar it came from a theft. During the two week period before Apgar’s wreck, Dobbs told Apgar he stole a black GMC truck and Apgar saw Dobbs in this truck at Dobbs’ apartment complex. Dobbs also told Apgar that he had taken a red Dodge Stealth, which Apgar also saw at the apartment complex. Apgar and Dobbs rode by a trailer full of equipment and Dobbs asked Apgar if he knew anybody who might want it. Dobbs told him that he had a camcorder and compact discs, and asked him if he knew anybody who might want a good dirt bike. Dobbs told Apgar he was going to keep the camcorder.

Officer Mattox verified that the GMC truck and trailer with equipment were where Apgar said they would be, off Sweetwater Road. Apgar told Mattox that he had seen a GE camcorder in Dobbs’ apartment, told Mattox where Dobbs’ apartment was located and that Dobbs and Cliff were staying there with the tenant’s permission because the tenant was in jail and did not want to lose the apartment. Mattox verified with the apartment management that this was true. Based on this information, Mattox obtained a search warrant for the apartment, stating that there was reáson to believe that the fruits of a crime, i.e., the camcorder, its bag, and instructions, were in the apartment. The warrant was issued on January 20,1994 and executed the same day.

The officers entered the apartment and secured Dobbs, who was running toward the rear of the apartment. Officer Parrish read Dobbs his Miranda rights from her pocket card and sat with him during the search. The officers swept the apartment to make sure there were no other individuals present. While checking a hallway closet, an officer, observed by Mattox, found two sets of keys on top of the water heater. One set had a leather key fob containing a number of keys, including two General Motors keys. These keys fit the GMC pickup taken from Mabry. The other set had a picture of victim Drake and his wife on it. Since Mattox was working that case, he recognized the picture. Two garage door openers were found, one in a video recorder bag located in Dobbs’ bedroom. The second one was found in a drawer in that room. Also seized was a pair of pruners. The GE camcorder was not found and the video recorder bag was discovered to belong to Dobbs’ sister.

Dobbs was taken to the police station where Officers Mattox and Parrish interviewed him. Before commencing the interview, Mattox went over a written Miranda waiver form with Dobbs, who initialed each right and signed the form. The interview was taped, but Dobbs made no incriminating statements. When Dobbs requested an attorney, the interview was stopped and he was transported to jail.

On February 14,1994, Sgt. Davis was on duty at the jail and was asked by Dobbs to contact Mattox and ask him to come to the jail because Dobbs wanted to confess. Mattox went to the jail and recorded an interview with him, recording over the January 20 interview. He reminded Dobbs of his rights and verified that Dobbs had requested that he come. Dobbs acknowledged his right to an attorney and even stated that his attorney had told him to “wipe the slate clean,” although she had not told him that. Dobbs said he did not want an attorney present. He then gave Mattox details that would only have been known to the perpetrator of the two Drake burglaries, the King and Luttrell burglaries, and the theft of Mabry’s 1992 GMC pickup and trailer full of equipment. In addition to taping the interview, Mattox hand wrote portions of the confession, which Dobbs signed. That document also contained an acknowledgment of Dobbs’ Miranda rights. In addition to his own name, Dobbs signed “Lucifer, Jesus Christ.”

The evidence was legally sufficient. Jackson v. Virginia, supra; Bigham v. State, 222 Ga. App. 353, 354 (474 SE2d 254) (1996); Quinn v. State, 222 Ga. App. 423, 424 (1) (474 SE2d 297) (1996).

2. The second enumeration is that the court erred in denying Dobbs’ motion to suppress because there was insufficient probable cause for the warrant and items not listed therein were seized.

(a) The totality of the circumstances analysis is used in evaluating the affidavit. State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984). In so doing, we consider not only the information produced at the hearing on the motion, but also the evidence produced at trial. Sanders v. State, 235 Ga. 425, 431 (2) (219 SE2d 768) (1975), cert. denied, 425 U. S. 976; Davis v. State, 216 Ga. App. 580, 581 (1) (455 SE2d 115) (1995).

We conclude, as did the trial court, that the magistrate was authorized to make the determination that probable cause existed and the warrant should issue. Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990); compare Grier v. State, 266 Ga. 170, 172 (2) (465 SE2d 655) (1996), with Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992). “ ‘ “The resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” (Cits.)’ Munson v. State, 211 Ga. App. 80, 83 (438 SE2d 123) (1993).” Davis v. State, 266 Ga. 212, 213 (465 SE2d 438) (1996).

(b) Dobbs also argues that, because the only item specified for seizure in the warrant was the GE camcorder taken from the second Drake burglary, the seizure of the keys and other items which were introduced was error.

Contrary to Dobbs’ argument, when an officer sees in plain view items which are evidence of the commission of crimes other than that referred to in the warrant, such items may be seized, even if not specified in the warrant. Horton v. California, 496 U. S. 128 (110 SC 2301, 110 LE2d 112) (1990) (inadvertence not a necessary element of plain view); Galbreath v. State, 213 Ga. App. 80, 83 (2) (443 SE2d 664) (1994); Nichols v. State, 210 Ga. App. 134, 136 (3) (435 SE2d 502) (1993); Jefferson v. State, 199 Ga. App. 594 (405 SE2d 575) (1991).

This ground presents no basis for reversal.

3. Dobbs’ first and third enumerations deal with the admission into evidence of Dobbs’ confession and will be considered together.

(a) The third enumeration is that the State “did not present sufficient evidence to the trial court to show (1) that the statement was freely and voluntarily given and to show (2) that the defendant knowingly and intelligently waived his Miranda rights.”

The state must demonstrate the voluntariness of a confession by a preponderance of the evidence. Bright v. State, 265 Ga. 265, 280 (5) (b) (455 SE2d 37) (1995); LaRue v. State, 171 Ga. App. 371, 372 (319 SE2d 468) (1984). “A trial court’s conclusions of fact and credibility following a Jackson-Denno hearing are to be accepted unless clearly erroneous. [Cits.]” Yorker v. State, 266 Ga. 615, 617 (4) (469 SE2d 158) (1996); Swinney v. State, 217 Ga. App. 657, 659 (3) (458 SE2d 686) (1995).

Two pre-trial hearings were held concerning the statements made by Dobbs. At the first, held on January 26, 1995 in conjunction with a hearing on the motion to suppress, only Investigator Mattox testified. The only statement considered at that hearing was the interview with Dobbs on February 14, 1994 at the jail. During Mattox’s testimony, no reference was made to the January 20 interview at the police station.

At the conclusion of the January 26 hearing, the court stated, regarding Dobbs’ tape-recorded confession of Februáry 14, 1994, “I’m not going to suppress the statement and will not rule it inadmissible, but am not ruling that each and every part of the tape is proper to be played to the jury. But as a general ruling, I am going to rule that the interview is admissible. Now, whether any or all of the tape is admissible is . . . premature to rule on that, because I don’t think a foundation has been laid at this point in time, to admit it into evidence, and it’s not the proper time to lay the foundation, either. I find that it does not violate the Fourth Amendment or other applicable provisions of the law, which would make it — Fourth Amendment — so back on your search and seizure. But I find that it is not violative. Maybe it’s the 6th Amendment, come to think of it. Anyway I’m not going to suppress the statement given on the 14th of February, 1994.”

Counsel for Dobbs objected to the Februáry 14 transcript coming into evidence and requested that the tape itself be made available. After the prosecutor had reviewed the tape, he became aware of the taping over of a portion of the January 20 interview.

A second hearing was held on February 16,1995, at which Dobbs requested that the matter be reopened and the prior hearing testimony be incorporated for purposes of the second hearing. At that point, Dobbs sought to suppress both the January 20 statement and the February 14 statement, on the ground that “one has a bearing on the other and the second one is fruits of the first one. . . . It’s my position that the statement that was not provided to me [January 20] is exculpatory, I have a right to it, and I don’t believe . . . Officer Mattox remembers enough about the statement, in. order to provide me the substance thereof. . . . There is a previous statement where my client was taken to the Gwinnett County Police Headquarters, after he had asked for an attorney, and where they continued to interrogate him. ... I believe that I have a right to that statement. If they cannot furnish me the contents of that statement I believe I have a right to have the first and second statement suppressed. Because the second statement is the fruits of the first statement. ... I believe it [January 20 statement] is exculpatory, because the details were provided in that statement, that lead to the second statement and my client’s details. . . . It’s my position that he gave those details to my client in the first interview.”

Investigator Mattox was thoroughly cross-examined by Dobbs again and the state called Investigator Parrish to supplement the record. Although Mattox exhibited a gross lack of preparation during the first hearing, resulting in misunderstandings of the course of events, we do not find clearly erroneous the trial court’s conclusion that Dobbs was properly Mirandized before the first interview and that questioning ceased upon his request for counsel. Additionally, since Dobbs contends that interview was exculpatory, he will not be heard to then say it was involuntary, especially considering that there was no objection made at trial when the waiver of rights form was introduced into evidence.

There is no dispute that the February 14 interview was initiated by Dobbs. Even assuming that, at the January 20 interview, Dobbs adequately asserted his right to counsel and to remain silent, this would not preclude the officer’s renewed interrogation if Dobbs initiated further communication with him and waived the rights he had invoked. Hopkins v. State, 263 Ga. 354, 357 (3) (434 SE2d 459) (1993); see McKoon v. State, 266 Ga. 149, 151 (2) (465 SE2d 272) (1996); Underwood v. State, 218 Ga. App. 530, 533 (2) (462 SE2d 434) (1995).

After coming to the jail at Dobbs’ request, Mattox verified that Dobbs had called him and “reminded him of his [Miranda] constitutional rights.” This is reflected in the handwritten statement which Dobbs signed. Such a reminder is adequate under these circumstances. Osborne v. State, 263 Ga. 214, 217 (4) (430 SE2d 576) (1993). Additionally, the full Miranda warnings that Dobbs received twice on January 20 and after which he signed the written waiver had not grown “stale” during the three intervening weeks. Id.

The court’s conclusion that the February 14 statement was voluntary and would not be suppressed was not clearly erroneous.

(b) The first enumeration is that the court erred “by allowing the state to introduce only the inculpatory portions of the statement, over the defense’s objection to only portions of the statement being presented by the state, thereby forcing the defendant to risk putting [his] character in issue in order to show the context of the statement, the manner it was given, and [his] attitude and demeanor . . . during the statement.”

Succinctly put, Dobbs contends that, if the statement was going to be introduced by the state, all of it, including those portions which would put his character in issue, must be played by the state during its case. As reflected in the record, by defense counsel, “I can either show them the context of the statement and then put my client’s character in evidence, or not show them the context [of the admissions]. I mean both choices stink. ... If I’m forced to play it, yes, Judge, I believe it will [put his character in issue], THE COURT: But you think if [the prosecutor] plays it, it doesn’t put his character in issue? [Counsel]: Correct. That is simply putting the statement in the context in which it’s given.”

Decided October 29, 1996.

Karen E. Beyers, for appellant.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

Of course, the identity of the party putting other crimes committed by the defendant into evidence does not determine whether or not the evidence places an accused’s character in issue. See generally Jones v. State, 257 Ga. 753 (363 SE2d 529) (1988). For the state to do as Dobbs argued it must, could have resulted in a mistrial. Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991); Sabel v. State, 250 Ga. 640, 643 (5) (300 SE2d 663) (1983).

The state could not be forced to introduce all of the statement. As acknowledged by Dobbs, any part of the statement which he chose to introduce was available for that purpose and could have been explored on cross-examination. See Long v. State, 22 Ga. 40 (1857); see Simpson v. State, 213 Ga. App. 143, 145 (2) (444 SE2d 115) (1994). There was no error.

4. Dobbs contends that admission of evidence involving a prior auto theft by him was improper because the prior offense was not sufficiently similar to the Mabry theft.

Slade testified that on November 21, 1987, around 9:00 p.m. his 1983 black Chevrolet S-10 pickup truck was taken from his driveway off Peachtree Industrial Road in Gwinnett County. The keys had been left inside the truck on the floorboard. The truck was later pursued by officers and wrecked after midnight. Dobbs, who was 17 at the time, was driving and admitted taking the truck.

Dobbs’ contention that the crime was not sufficiently similar to the Mabry theft fails. As pointed out by the trial court, both thefts involved black pickups taken from driveways in the same general area and both were taken by using keys found in them. See generally Felker v. State, 252 Ga. 351 (314 SE2d 621) (1984). The lapse of seven years between the incidents goes to the weight and credibility of such testimony, not its admissibility. Gilstrap v. State, 261 Ga. 798, 799 (1) (410 SE2d 423) (1991); Braddock v. State, 208 Ga. App. 843, 844 (2) (432 SE2d 264) (1993); Stephens v. State, 205 Ga. App. 403, 404 (1) (422 SE2d 275) (1992).

5. The error alleged in the final enumeration was not the subject of an objection below and will not be considered here for the first time. DeFreese v. State, 232 Ga. 739, 746 (14) (208 SE2d 832) (1974); Jones v. State, 189 Ga. App. 232 (1) (375 SE2d 648) (1988).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       Dobbs was convicted of, but not sentenced for, the theft of the truck involved in the theft by receiving count.

       Apgar pled guilty to the theft by receiving charge for the items taken in the second Drake burglary.

       Other grounds argued in the brief, including OCGA § 17-7-210, are either not enumerated as error or were not raised below and they are not further addressed. Unden v. State, 218 Ga. App. 463, 466 (5) (462 SE2d 408) (1995).

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       Portions of the statement referred to other non-similar crimes to which Dobbs confessed.