author: Banke, Presiding Judge.

text:
    75199.
    KILPATRICK v. FOSTER et al.
    (364 SE2d 588)
   Banke, Presiding Judge.

The appellant sued the appellees to recover for personal injuries which she sustained when an automobile she was driving was struck head-on by an automobile being driven by one Ted McAdams. McAdams died as a result of the accident, and any liability he may have generated as the immediate result of his conduct in the matter is not at issue in this litigation. At the time the collision occurred, McAdams was traveling north on Holly Springs Road in Cobb County, driving a red Corvette. Immediately in front of him, traveling in the same direction and driving a turbocharged Datsun 280 ZX, was appellee Thomas S. Foster; while immediately behind McAdams, traveling in the same direction and driving a beige or cream-colored Corvette, was appellee James W. Weber. The collision occurred when, for reasons which are not entirely clear, McAdams’ Corvette crossed over the centerline into the path of the appellant’s vehicle, which was proceeding south on Holly Springs Road in its appropriate lane of traffic.

The appellant sought to hold Foster and Weber liable for her injuries on the theory that they had been “racing” with McAdams when the collision occurred, in violation of OCGA § 40-6-186, or had otherwise been participating with him in some form of concerted activity involving the operation of their respective vehicles in a negligent and unlawful manner. At the conclusion of a lengthy trial, the jury returned a verdict in favor of the appellees. The appellant filed this appeal from the denial of her motion for new trial. Held:

1. The appellant contends that the trial court erroneously charged the jury that the only form of “negligent concerted activity” for which the appellees could be held liable was that of unlawful “racing.” The appellant had requested an instruction that either of the appellees could be held liable for her injuries based on a determination “that there was negligent concerted activity between that [appellee] and Mr. McAdams in the driving of their vehicles on Holly Springs Road” and based on a further determination “that [appellee] committed a negligent act in pursuit of the negligent concerted activity and pursuant to a common design with Mr. McAdams.” (The proximate cause requirement was covered in a separate request to charge filed by the appellant.)

An examination of the charge given by the court reveals that, although the court did in fact instruct the jury on more than one occasion that the appellees could be held liable for the appellant’s injuries based on a finding that they had engaged in unlawful activity “in joint concert” with McAdams or in pursuit of a “common design” with him, such terminology was, in each instance, employed with reference to the specific activity of racing. We must consequently agree with the appellant that the charge given by the court would not have authorized an assessment of damages against the appellees based on a finding that they had been involved in any form of joint conduct or concerted activity with McAdams other than racing.

At the conclusion of the court’s charge, the appellant interposed the following objection: “[W]e object to all statements . . . throughout the charge which have limited our case to one called racing. We continue to believe that speeding alone, reckless driving alone, illegal passing alone, could be a basis for concerted action . . . and that had there been active encouragement of the other vehicles by speeding or by illegal passing, that would form a basis for one being liable for the act of another.” This objection was clearly adequate to preserve the alleged defect for appellate review. See generally Christiansen v. Robertson, 237 Ga. 711, 712 (229 SE2d 472) (1976).

Subsequent to the trial of the present action, this court held, in Bellamy v. Edwards, 181 Ga. App. 887 (1), 888 (354 SE2d 434) (1987), that “[a] ‘common enterprise’ to drive two cars in tandem at excessive speeds and in a reckless manner is as much a tacit ‘unlawful joint enterprise’ to violate the traffic laws of this state as an agreement to engage in ‘racing.’ ” In reaching this conclusion, we cited with approval a Wisconsin Supreme Court decision holding that “ ‘when there is an understanding to reach a common destination and in doing so illegal speed is used and the cars are driven so closely together as to be practically in tandem, or to constitute a unit, ... we have a situation of mutual stimulation where the negligence of each participant is so related to the negligence of the other participants that the participants should each be chargeable with the causal negligence of the other as to speed. . . .’ Ogle v. Avin, 146 NW2d 422, 427 (Wis. 1966).” Id.

The appellees contend that our holding in Bellamy v. Edwards, supra, should not be given retroactive effect. We disagree. “In Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 712 (300 SE2d 673) (1983), the [Georgia Supreme Court] adopted the test set forth in Chevron Oil Co. v. Huson, 404 U. S. 97 [(92 SC 349, 30 LE2d 296) (1971)], and held that in deciding whether a decision should be applied retroactively the court should: ‘(1) Consider whether the decision . . . established a new principle of law, either by overruling past precedent on which litigants relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. (2) Balance of the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation would further or retard its operation. (3) Weigh the inequity imposed by retroactive application, for, if a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the injustice or hardship by a holding of non-retro-activity.’ ” Federated Mut. Ins. Co. v. DeKalb County, 176 Ga. App. 70, 72 (335 SE2d 873) (1985), aff'd 255 Ga. 522 (341 SE2d 3) (1986).

We can discern no basis for limiting the Bellamy decision to prospective application based on the foregoing considerations. No past precedent was overruled by the decision, and it should certainly come as no legitimate surprise to motorists utilizing the public roadways of this state that if they choose to participate with other motorists in the “unlawful joint enterprise” of driving their vehicles in tandem at high speeds or in a reckless manner, they may be held liable for injuries to innocent motorists proximately resulting from such conduct. By the same token, any inequity which might result from our giving the holding in Bellamy retroactive application quite obviously pales beside the inequity which might result to innocent motorists if we failed to do so. Thus, we have no hesitancy in concluding that the theory of liability announced in Bellamy is fully applicable to the present case.

That the evidence in the present case warranted a Bellamy charge is beyond question. It was established without dispute that McAdams and the two appellees were close friends; that, after meeting at their neighborhood swimming pool on the morning of the day the collision occurred, they had driven simultaneously but in their separate vehicles to a bar-restaurant called “The Fox’s Den” to eat lunch and drink beer; and that, when the collision occurred, they were in the process of returning home in their separate vehicles. There was additional evidence from which the jury could have found that immediately prior to the collision the three men were driving in close formation at speeds in excess of 70 miles per hour. The jury would clearly have been authorized to conclude from this evidence that, even if the men were not “racing” as such, they were driving in tandem at excessive speeds and in a reckless manner. Accordingly, the trial court’s failure to instruct the jury that the appellees could be held liable for any injuries suffered by the appellant as the proximate result of such activity must be deemed reversible error.

2. The appellant asserts that the trial court further erred in refusing to allow two lay witnesses and one expert witness to offer opinion testimony to the effect that the appellees and McAdams had in fact been “racing” immediately prior to the collision. However, we agree with the trial court that such testimony would have invaded the province of the jury with respect to one of the key issues being tried. From the observations made by these and other witnesses, the jurors were fully capable of drawing their own conclusions with respect to whether the appellees had been engaged in unlawful “racing” within the contemplation of OCGA § 40-6-186. “Where the jury are as competent as a witness to draw conclusions from facts testified, the opinion of a witness is inadmissible.” McGahee v. Phillips, 211 Ga. 118, 120-121 (84 SE2d 19) (1954). Accord Barnes v. Thomas, 72 Ga. App. 827 (5), 835-837 (35 SE2d 364) (1945). This rule applies regardless of whether the witness is a lay person or an expert. See Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981); Walker v. Bishop, 169 Ga. App. 236, 240-241 (312 SE2d 349) (1983).

3. The appellant contends that the trial court improperly excluded testimony that one of the lay witnesses referred to in Division 2, supra, had exclaimed to her husband upon observing the three “sports cars” accelerating on Holly Springs Road shortly before the collision, “Oh, my God, they’re racing.” The appellant contends that this statement was admissible both as a “spontaneous declaration” and as evidence tending to rebut a comment which had been made by counsel for appellee Weber during his opening statement suggesting that the witness’ husband might have fabricated portions of his testimony after being contacted by counsel for the appellant.

Pretermitting whether a prior statement made by one witness could ever be considered relevant to rebut a suggestion of recent fabrication on the part of another witness, we hold that the statement was properly excluded for the reason set forth in Division 2, supra, i.e., it improperly invaded the province of the jury with respect to a key issue in the case. A trial judge has the discretion to exclude even relevant evidence if he finds that its probative value is substantially outweighed by the risk that its admission will unduly prejudice or mislead the jury or confuse the issues being tried. Metropolitan Property &c. Ins. Co. v. Shepherd, 166 Ga. App. 300, 301 (304 SE2d 74) (1983); Agnor's Ga. Evidence § 10-2, p. 164.

4. During the course of the trial, an individual who worked as a secretary in the courthouse where the case was being tried came forth with the disclosure that, less than an hour before the collision, she had observed a red Corvette and a second vehicle, described by her only as a “sports car,” traveling side by side on Holly Springs Road at a “very high rate of speed.” The vehicles which she had seen had, however, been traveling in a northerly direction away from the accident scene. The appellant enumerates as error the trial court’s exclusion of this witness’ testimony for lack of relevance.

“Questions of relevancy of evidence, which includes the issue of materiality, are for the court, and in the absence of an abuse of judicial discretion, this court will not interfere.” MacNerland v. Johnson, 137 Ga. App. 541, 542 (224 SE2d 431) (1976). In view of the witness’ inability to provide any description whatever of the vehicle she had observed speeding alongside the red Corvette prior to the collision, and in view of the fact that McAdams could not, consistent with all of the other testimony in the case, have been driving the Corvette in a northerly direction away from the accident scene at the time the witness made her observations, we conclude that the trial court did not abuse its discretion in excluding this testimony. See Metropolitan Property &c. Ins. Co. v. Shepherd, 166 Ga. App. at 301, supra.

5. The appellant contends that she was improperly prevented by the trial court from utilizing a portion of appellee Foster’s deposition testimony in cross-examining him. The deposition testimony in question purportedly conflicted with a statement Foster had given to the police on the day of the accident, the sole copy of which had somehow fallen into the possession of the appellant’s counsel prior to the deposition. As sanction for the appellant’s counsel’s failure to produce the statement prior to Foster’s deposition in response to a discovery request, the trial court had previously allowed Foster to purge the portion of his deposition testimony which is the subject of this enumeration of error.

At trial, Foster testified that he did not know how closely behind his vehicle McAdams was following just prior to the collision. In cross-examining Foster with respect to this testimony, appellant’s counsel was permitted to read to the jury a portion of Foster’s deposition in which he had testified that McAdams’ vehicle was “immediately behind” him just prior to the collision. Excluded from the jury’s consideration, however, was a portion of the deposition, in which Foster had indicated that by the terminology, “immediately behind,” he meant two car lengths. As it would appear to this court that the deposition testimony which was brought to the jury’s attention was at least as favorable to the appellant as the portion which was excluded, we conclude that the asserted error could not have resulted in substantial harm to the appellant and that it consequently establishes no independent ground for a new trial. See generally Clements v. Toombs County Hosp. Auth., 175 Ga. App. 651, 653-654 (334 SE2d 188) (1985); Estate of Sam Farkas v. Dougherty County School System, 178 Ga. App. 135 (342 SE2d 501) (1986).

6. The appellant contends that the trial court placed improper limitations on her questioning of an expert whom she had called as a rebuttal witness. However, it does not appear that any offer of proof was made with respect to the excluded testimony. Accordingly, this enumeration of error presents nothing for review. See generally Griffin v. Henderson, 117 Ga. 382 (2) (43 SE 712) (1903); Shearson/American Express v. Hardy, 171 Ga. App. 471, 474 (3) (320 SE2d 257) (1984).

7. The appellant contends that the trial court erred in allowing counsel for the two appellees to conduct separate cross-examinations of each other’s witnesses. As a general proposition, “[t]his court will not interfere with the action of the trial judge in allowing ‘double’ or ‘multiple’ cross-examination of witnesses, particularly in a situation, such as here shown, involving more than two parties, absent a showing of a manifest abuse of discretion.” Gunnells v. Cotton States Mut. Ins. Co., 117 Ga. App. 123, 126 (159 SE2d 730) (1968). See also Smith v. Poteet, 127 Ga. App. 735 (195 SE2d 213) (1972). In the present case, counsel for the appellant has not specified how the court’s action in allowing the witnesses called by one appellee to be cross-examined by counsel for the other might have resulted in any actual prejudice to his client. Rather, his concern seems to be that the rule articulated in Gunnells v. Cotton States Mut. Ins. Co., supra, is subject to abuse in certain hypothetical circumstances which did not occur in the present case. Such concerns do not establish any manifest abuse of discretion on the part of the trial court in the present case.

8. Finally, the appellant contends that the trial court erred in failing to “control” certain allegedly improper conduct engaged in by counsel for appellee Weber during the course of the trial. Specifically, it is asserted that, by a series of related questions and comments, Weber’s counsel improperly sought to convey to the jury the implication that because the appellant’s now deceased father was formerly a senior partner in the firm which has represented her in the present action, her attorneys “fabricated witness testimony, stole property from the Cobb County Police Department, and otherwise engaged in scurrilous and underhanded tactics.”

The “questions and comments” at issue consisted in their entirety of a comment made by Weber’s attorney during his opening statement suggesting that the memories of two of the appellant’s key witnesses had improved inordinately after those witnesses were contacted by the appellant’s attorneys, combined with two comments made by Weber’s attorney during the course of the trial, implying, evidently by tone of voice, that there was an impropriety associated with the manner in which the appellant’s attorneys had “somehow” come into sole possession of the tapes and written transcripts of the statements which the appellees had given to the Cobb County police on the day of the accident.

Generally speaking, what has transpired in a case from its inception to its conclusion and the conduct of the party or his counsel with respect thereto are the subject of legitimate comment. Walker v. Bishop, 169 Ga. App. at 241, supra. Assuming strictly for purposes of argument that there was any impropriety whatever associated with the comments at issue, it quite obviously did not rise to such a level as to impose a duty on the part of the trial court to take corrective action sua sponte, in the absence of an objection or request for such action. Since an examination of the transcript reveals that no such objections or requests for corrective action were made at the trial level, this enumeration of error is without merit. See United States Shoe Corp. v. Jones, 149 Ga. App. 595, 598 (6) (255 SE2d 73) (1979).

Decided December 4, 1987

Rehearings denied January 4, 1988

Robert E. Shields, Alan R. Perry, Jr., for appellant.

Thomas D. Harper, John F. Daugherty, Robert J. McCune, for appellees.

Judgment reversed.

Carley and Benham, JJ., concur.


source: Caselaw Access Project

author: Birdsong, Chief Judge. Deen, Presiding Judge,

license: Public Domain

text:
    75223.
    MY FAIR LADY OF GEORGIA, INC. v. HARRIS.
    (364 SE2d 580)
   Birdsong, Chief Judge.

Gineva Harris became a member of My Fair Lady of Georgia in April of 1983 and on June 27, 1983, while using the facilities of My Fair Lady, slipped and fell in the shower injuring her right ankle and leg. Harris brought this action against My Fair Lady alleging “negligence” in that the shower area was inadequately designed, constructed, and maintained. My Fair Lady defended on the basis that Harris fell as a result of her own negligence from her failure to exercise ordinary care for her own safety, and that the complaint failed to state a claim for which relief could be granted.

The contract signed by Harris with My Fair Lady contained the following exculpatory paragraph: “Use of Facility by Members — Member agrees . . . use of all club facilities shall be undertaken at the member’s own risk . . . and that the corporation which owns the club and/or any affiliated companies and/or their respective agents and employees shall not be liable for any claims, demands, injuries, damages, actions or causes of action . . . which arise wholly or partially due to the negligence of the corporation which owns the club and/or any affiliated companies and/or their respective agents and employees to member . . . arising out of or connected with the use of any of the services and/or facilities of such corporation .... and the member does hereby expressly forever release and discharge said corporation and any affiliated companies and their respective agents and employees, from all such claims, demands, injuries, damages, actions or causes of action. . . .”

My Fair Lady moved for and was denied summary judgment but was granted a certificate of immediate review which this court denied. Appellant then filed a motion for reconsideration or, in the alternative, renewed its motion for summary judgment. Again the trial court denied the motion but granted a certificate for immediate review. This court granted the application. Held:

The exculpatory clause of the contractual agreement between the parties effectively: (1) required the member to assume any risk occasioned by her use of the club’s facilities, (2) waived the right of the member to bring an action against My Fair Lady, its agents and employees, which is bottomed on negligence, and (3) released and discharged My Fair Lady, its agents and employees, from liability for injury caused by any negligence of the corporation and/or its agents and employees which arose from the use of the club’s facilities by Ms. Harris. Lovelace v. Figure Salon, 179 Ga. App. 51 (345 SE2d 139); Hall v. Garden Svcs., 174 Ga. App. 856 (332 SE2d 3).

“It is the paramount public policy of this state that courts will not lightly interfere with the freedom of parties to contract.” Lovelace, supra at 52. A contracting party may waive or renounce that which the law has established in his or her favor, when it does not thereby injure others or affect the public interest. OCGA § 1-3-7. Exculpatory clauses in Georgia are valid and binding, and are not void as against public policy when a business relieves itself from its own negligence. Hall, supra at 857; Carrion v. Smokey, Inc., 164 Ga. App. 790 (298 SE2d 584). Parties to a contract are presumed to have read their provisions and to have understood the contents. Parker v. Fidelity Bank, 151 Ga. App. 733, 734 (261 SE2d 465). One who can read, must read, for he is bound by his contracts. Cochran v. Murrah, 235 Ga. 304, 306 (219 SE2d 421). The exculpatory paragraph in the instant contract was valid and binding.

Summary judgment is appropriate where the moving party shows he is entitled to judgment as a matter of law and there is no genuine issue as to any material fact. OCGA § 9-11-56 (c). Conversely, any dispute as to any immaterial fact will not preclude the grant of summary judgment. Chelena v. Ga. Fed. Savings &c. Assn., 256 Ga. 336, 337 (349 SE2d 180); Murphy v. Bank of Dahlonega, 151 Ga. App. 264, 265 (2) (259 SE2d 670); Wood v. Metro. Atlanta Girl's Club, 141 Ga. App. 473 (2) (233 SE2d 862). Hence, assuming arguendo, there is an issue as to whether My Fair Lady, its agents and/or employees were negligent, it is not material, for Ms. Harris contractually assumed any risk associated with her use of the club’s facilities, waived the right to bring an action upon the alleged negligence of the club, and had released and discharged My Fair Lady from any claim for damages if one arose out of the negligence of the club, its agents and/or employees. Under this factual predicate, where a cause of action is based on the alleged negligence of the club, and there being a valid contractual waiver and release for any action arising out of Harris’ use of the facilities, which sounded in negligence, the trial court erred in denying My Fair Lady’s motion for summary judgment.

Judgment reversed.

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

Deen, Presiding Judge,

dissenting.

I respectfully dissent from the majority opinion, inasmuch as it appears that the instant case is factually distinguishable from such cases as Carrion v. Smokey, Inc., 164 Ga. App. 790 (298 SE2d 584), and Lovelace v. Figure Salon, 179 Ga. App. 51 (345 SE2d 139), cited by the majority. If in Smokey, instead of falling from a horse (a distinguishing feature of a stable and clearly a recreational “facility”), the plaintiff had slipped on straw or some other substance and fallen as he entered or exited the horse’s stall, that case would have been more nearly on point with that sub judice. Similarly, if Mrs. Lovelace, instead of being injured by the spa employee’s allegedly incorrect use of certain “testing equipment,” had tripped over the threshold of the spa’s entrance and fallen, or perhaps lost her footing on a stair, that case, too, would be on point with the instant case. Conversely, if Ms. Harris, plaintiff/appellee here, had tripped over or fallen from a Nautilus machine or other object that was distinctively “sporting or recreational” equipment (or “facility”), rather than losing her footing on a wet floor adjacent to the shower (something she might equally well have done in her own home), her case might, arguendo, have been controlled by Lovelace or Smokey, and a grant of summary judgment to My Fair Lady might have been appropriate. The factual distinctions between the instant case and those two cases are significant, however.

Our analysis of the record sub judice persuades us that the fact situation of the instant case fits more nearly into the “slip and fall” line of cases than into that category turning upon the waiver of rights when contracting to use “facilities” peculiar to “sporting or recreational” use. Carrion v. Smokey, supra. This being so, then summary judgment would have been inappropriate either under the “assumption of risk/waiver” theory or under the theory of ordinary negligence, since questions of ordinary care, negligence, and diligence traditionally are not considered amenable to summary adjudication but present issues of fact which require resolution by the jury. It would seem that, in the fact situation of the instant case, this court would have no choice but to affirm the trial court’s denial of summary judgment on any of the theories advocated by defendant/appellant. OCGA § 9-11-56.

Decided November 30, 1987

Rehearing denied January 4, 1988

H. Andrew Owen, Jr., Perry A. Phillips, for appellant.

William A. Hazleton, for appellee.

I therefore respectfully dissent.


author: Deen, Presiding Judge.

text:
    75647.
    SMITH v. MOBLEY.
    (364 SE2d 597)
   Deen, Presiding Judge.

Glenn D. Smith brought suit against Gerald Mobley for personal injuries and damages to his pick-up truck which he claims he sustained when his vehicle was struck in the rear by a truck driven by Mobley while he was stopped and waiting to make a left turn. The jury found for the defendant and Smith appeals, contending that the trial court erred in charging the parties’ contentions, the doctrine of last clear chance, and accident. Held:

1. Appellant’s contention that the court below erroneously charged one of the defendant’s contentions by attributing it to the plaintiff is without merit because appellant did not raise an objection to this portion of the charge. An examination of the trial transcript reveals that the issue was raised below only by the defendant and not by appellant. As appellant did not raise the issue in the court below, it cannot be raised for the first time on appeal. Lynn v. State, 181 Ga. App. 461 (352 SE2d 602) (1986).

2. The evidence showed that at the time of the collision a light, drizzling rain was falling. Appellant had stopped his truck and was waiting for traffic to clear before making a left turn. His truck was struck in the rear by the defendant’s truck, which the defendant claimed he was driving at approximately 30-35 m.p.h. He admits that he saw the plaintiff’s truck stopped in the road ahead and positioned at an angle as if to make a turn. Mobley applied the brakes in a normal manner and his vehicle hydroplaned out of control, striking Smith’s truck. Mobley claims that he saw Smith look back at him in the rearview mirror, but that the appellant took no evasive action and merely braced himself for the impact. Smith testified that immediately before the collision he saw Mobley’s truck approaching, but taking evasive action would have required him to move his truck forward into oncoming traffic, so he braced himself in case the approaching vehicle could not stop.

Decided December 17, 1987

Rehearing denied January 4, 1988

Ben B. Mills, Jr., for appellant.

J. Harvey Davis, James B. Thagard, William A. Turner, Jr., for appellee.

Under OCGA § 51-11-7, “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases, the defendant is not relieved although the plaintiff may in some way have contributed to the injury sustained.” “The last clear chance doctrine can be invoked only where the defendant knows of the plaintiff’s perilous situation, and realizes, or has reason to realize, the plaintiff’s helpless condition. The defendant is charged with a duty of using with reasonable care and competence his then existing ability to avoid harming plaintiff. [Cit.]” Hunter v. Batton, 160 Ga. App. 849, 850 (288 SE2d 244) (1982). This doctrine contains two elements: the plaintiff must have put himself in a position of peril from which he could not extricate himself, and the defendant must have knowledge and appreciation of the injured party’s peril in time to avoid the injury. This doctrine “is applicable only where the defendant’s failure to avoid the consequences . . . was the last negligent act, and hence the proximate cause of the injury, or conversely, that the doctrine is not applicable if the plaintiff’s own act was the final negligence before the accident.” Shuman v. Mashburn, 137 Ga. App. 231, 236 (223 SE2d 268) (1976).

In applying the elements set forth above, we find that the plaintiff did not place himself in a position of peril. While the plaintiff was stopped on the road at an intersection, the defendant admitted that he was aware of Smith’s intent to make a left turn and attempted to stop his vehicle. He defended his inability to stop by claiming that his timely application of his brakes was overcome by a condition beyond his control: the hydroplaning of his vehicle. As there was no evidence to support the giving of a charge on last clear chance, it constitutes reversible error.

3. As this case must be reversed for retrial, it is not necessary to consider appellant’s remaining enumeration of error, which complains of a second error in the charge, as it is unlikely to recur at the retrial of the case.

Judgment reversed.

Birdsong, C. J., and Pope, J., concur.


author: Benham, Judge.

text:
    75097.
    POWELL v. THE STATE.
    (364 SE2d 599)
   Benham, Judge.

This appeal is from appellant’s conviction of three counts of armed robbery and one count of aggravated assault. We affirm.

1. In appellant’s first enumeration of error, he contends that the evidence was not sufficient to warrant his convictions. To address that contention, we must examine the evidence produced at trial by the State.

The cashier and retail supervisor of a service station/convenience store testified that appellant was the man who robbed the store at gunpoint. The supervisor also testified that he recognized appellant’s voice as that of the person who phoned the store shortly after the robbery, claimed to be the robber, and taunted the supervisor. A police officer testified that the phone call occurred while he was there investigating the robbery and that the voice on the phone was appellant’s. A customer testified that she came into the store to pay for gasoline and saw that it was being robbed. She swore that the robber turned to leave, saw the $10 bill in her hand, pointed his pistol at her and took her money. That testimony was corroborated by the cashier of the store. The robbed customer testified that she could not identify appellant’s face as that of the robber because she never saw the robber’s face, but stated that appellant was of the same build as the robber. A friend of the robbed customer testified that she saw a man come out of the store, heard her friend say they had been robbed, then followed the man until her friend also told her that he had a gun. She saw him get into a car she identified as being painted a flat gray color and looking like a Toyota. A police officer testified that he heard a radio report with a description of the car, then saw it, and followed it to an apartment complex. There, he testified, the car stopped and a man came back toward him with a pistol. The man shot in the direction of the police car, which stalled as the officer tried to leave. The police officer then played dead because he could not get his seat belt undone in order to draw his pistol. The officer swore that as he lay in his car, the man who shot at him came up to the car, stuck the gun in through the open window, told the officer not to move, then stole his revolver and left. Four eyewitnesses identified appellant’s car as the car driven by the gunman who shot at and robbed the police officer. One of them also identified appellant in a lineup. Although appellant introduced evidence of an alibi, the evidence produced by the State was sufficient to authorize a rational trier of fact to find appellant guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Proffitt v. State, 181 Ga. App. 564 (1) (353 SE2d 61) (1987); Walker v. State, 178 Ga. App. 876 (345 SE2d 98) (1986); Lowry v. State, 171 Ga. App. 118 (1) (318 SE2d 744) (1984). Appellant’s argument that his conviction is contrary to the evidence was addressed to the trial court, as it had to be (Witt v. State, 157 Ga. App. 564 (2) (278 SE2d 145) (1981)), and we find, in the denial of appellant’s motion for new trial, no abuse of the discretion vested in the trial court by OCGA § 5-5-20.

Decided January 4, 1988.

H. Haywood Turner III, for appellant.

William J. Smith, District Attorney, for appellee.

2. “Appellant enumerates as error the trial court’s denial of a motion for mistrial. A motion for mistrial is not subject to review where, as here, the motion is not renewed following curative instructions. [Cit.]” Glass v. State, 181 Ga. App. 448 (2) (352 SE2d 642) (1987).

Judgment affirmed.

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


author: Pope, Judge.

text:
    75121.
    HOWARD v. THE STATE.
    (364 SE2d 600)
   Pope, Judge.

Defendant Mark Howard, a prison corrections officer, was convicted of armed robbery and aggravated assault of a former inmate, crossing of guard lines of a prison facility with drugs in violation of OCGA § 42-5-15, and possession of less than one ounce of marijuana. The victim, a former inmate of the Men’s Correctional Institution at Hardwick where defendant was formerly employed, testified defendant had sold drugs to inmates at the prison using the victim as a middleman to deliver drugs to other inmates and return money in payment for said drugs to defendant. On February 21, 1986, after the victim had been released from prison, defendant confronted the victim and demanded several items of jewelry he was wearing as payment for a debt. When the victim refused to give defendant any additional money or items of value, defendant shot the victim three times with a .38 caliber pistol loaded with pellet-type cartridges. On February 25, 1986 defendant was arrested at Central Correctional Institution in Macon where he was then employed. A search of his automobile, which was parked within the prison gates, revealed a substance which later proved to be marijuana. Before taking defendant to the police station to have him booked, the arresting officers drove defendant to the house of his girl friend where defendant also lived. With the consent of defendant’s girl friend, the officers searched the house, found a .38 caliber pistol containing two spent pellet cartridges and the jewelry stolen from the victim. Defendant appeals, setting forth four enumerations of error.

1. Defendant argues the trial court erred in denying his motion to suppress the evidence found in his automobile and in his girl friend’s house on the ground the searches of the automobile and house were without probable cause and were conducted without a search warrant. “It is . . . well settled that one of the specifically esr tablished exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U. S. 218, 219 (93 SC 2041, 36 LE2d 854) (1973). The issues presented by the defendant’s motion were whether the consent given by the defendant for the search of his automobile and the consent of the defendant’s girl friend for the search of her house were in fact voluntary or the product of coercion.

Shortly after being placed under arrest defendant signed a written consent to the search of his automobile. The mere fact that defendant was under arrest at the time he gave his consent to the search does not establish the consent was made involuntarily or by coercion. See Fuller v. State, 165 Ga. App. 55 (1) (299 SE2d 397) (1983). Either before or after defendant signed the consent form an officer of the State Department of Corrections, who was present at the time of defendant’s arrest, informed defendant that his consent was unnecessary since the Department of Corrections has authority to search any person or vehicle inside the premises of the prison. Citing Bumper v. North Carolina, 391 U. S. 543 (88 SC 1788, 20 LE2d 797) (1968), defendant argues this statement implied defendant had no right to resist the search and therefore his consent was not voluntary. Unlike the facts in Bumper, this case does not present a situation “instinct with coercion.” Id. at 550. Bumper stands for the proposition that voluntary consent is not established by showing mere acquiescence to an officer’s claim of lawful authority when, in fact, that authority does not exist.

The issue in this case is whether the Department of Corrections official did have lawful authority to search the automobile of a prison employee parked inside the “guard line” of the prison, as he represented. We agree with the opinion of the Attorney General that corrections officials have the authority to condition a visit to a corrections institution on the visitor’s willingness to submit to a search for contraband or other items prohibited by OCGA § 42-5-15. See Op. Atty. Gen. 74-146 (Nov. 7,1974). At the prison in question, a sign was posted at the entry of the premises, which defendant would have passed daily as he reported to work, giving notice that all vehicles passing the “guard line” of the prison were subject to search. Under these circumstances, we find that prison officials also have authority to search the vehicle of an employee parked inside the “guard line.” We note that an official from the Department of Corrections was present and participated in the search of defendant’s vehicle. By driving his automobile onto the premises, defendant consented to such a search. Therefore, even if the statement by the prison official were made before defendant signed the written consent, it would not constitute coercion.

In regard to the search of the house, defendant’s girl friend testified at the hearing of the motion to suppress that she consented to the search only because one of the officers informed her that if she did not consent she could be prosecuted for obstruction of justice. The officer denied making any such statement. According to the officer, he informed defendant’s girl friend that she was not required to sign the written consent and that if she did not sign he would have to obtain a search warrant from a judge. In response, the girl friend stated, “Well, I don’t have anything to hide,” and signed the consent form. By denying defendant’s motion to suppress, the trial court obviously believed the testimony of the law enforcement officer and not that of defendant’s girl friend. “ ‘(T)he trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. [Cits.]’ ” Williams v. State, 151 Ga. App. 833, 834 (261 SE2d 720) (1979). We find no error in the denial of defendant’s motion to suppress.

2. Defendant next argues the court erred in overruling his objection to admitting into evidence the jewelry (Exhibit 3), pistol (Exhibit 2), and bullets and spent casings recovered from the pistol (Exhibits 8 and 9, respectively), all of which were discovered in a search of defendant’s girl friend’s house. For reasons discussed in Division 1 of this opinion, the trial court did not err in concluding this evidence was the fruit of a lawful search and overruling defendant’s objection to said evidence. Moreover, defendant has no valid ground for objecting to the introduction into evidence of pieces of a plastic casing and shot pellets (Exhibit 7) recovered from the scene of the crime.

3. Defendant was properly informed of his rights pursuant to the holding in Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). Defendant refused to sign a waiver of his right to counsel and requested an attorney. Nevertheless, defendant volunteered to give the officer directions to his girl friend’s house. While the search of the house was underway, one of the arresting officers remained in the patrol car with defendant. Defendant repeatedly requested permission to go inside the house to assist in the search. At one point, defendant volunteered that if he was allowed to go into the house, he would lead the officers to the gun and the jewelry. In response to this comment, the officer expressed his surprise by asking, “How did you know jewelry was involved?” Defendant answered that one of the other officers must have told him. Defendant argues the court erred in admitting this oral statement by defendant into evidence on the ground his right not to be interrogated without the assistance of a lawyer was violated.

Once an accused has expressed his desire to consult with an attorney, he “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U. S. 477, 484-485 (101 SC 1880, 68 LE2d 378) (1981). Defendant does not dispute that his offer to lead the officers to the gun and the jewelry was voluntarily made. The evidence shows that once defendant requested the assistance of an attorney, no further questions were posed to defendant until the officer asked how defendant knew jewelry was involved. Although this was, indeed, a question, the incriminating comment that defendant knew where to find the victim’s jewelry was made voluntarily and was not made in response to any question by the arresting authority. Whether the accused himself initiated further communication is merely the first step in determining whether the communication is admissible into evidence. The second inquiry must be whether a valid waiver of the previously asserted right to counsel was made by the accused. Oregon v. Bradshaw, 462 U. S. 1039 (103 SC 2830, 77 LE2d 405) (1983). “[T]his determination depends upon ‘ “the particular facts and circumstances surrounding (the) case, including the background, experience, and conduct of the accused.” ’ ” (Punctuation and cits, omitted.) Id. at 1046. In the case now before us, defendant himself was a sworn peace officer employed by the Department of Corrections. Under the facts and circumstances of this case, the trial court was correct in finding the incriminating comment which was volunteered by defendant was made as a result of a conscious and valid waiver of his previously asserted right to counsel.

4. Defendant’s constitutional challenge to the offense of crossing guard lines with drugs, as defined in OCGA § 42-5-15, must be dismissed for failure to raise the issue below. Where a defendant makes no effort to raise a constitutional question during the trial of the case, he cannot be heard to raise it on appeal. Frashier v. State, 217 Ga. 593 (124 SE2d 279) (1962).

5. Finally, defendant challenges the guilty verdict on the general grounds that the verdict was contrary to law, contrary to the evidence and against the weight of the evidence. The defendant disputed the testimony of the victim by offering his own testimony that the victim was injured and robbed by an unidentified third party. Jurors are the exclusive judges of the credibility of witnesses and “may accept whatever evidence they deem most reasonable and credible.” Miller v. State, 174 Ga. App. 703, 704 (331 SE2d 616) (1985). The testimony of the victim was amply sufficient to enable a rational trier of fact to find defendant guilty on all counts. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Therefore, the trial court did not err in denying defendant’s motion to direct a verdict of acquittal.

Decided January 4, 1988.

William D. Gifford, for appellant.

Willis B. Sparks III, District Attorney, Robin B. Odom, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    75130.
    BRUCE TILE COMPANY v. COPELAN.
    (364 SE2d 603)
   Pope, Judge.

Appellant Bruce Tile Company contracted to furnish materials and labor for installation of floor and wall tiles for a condominium development in Destín, Florida, known as The Seafarer. All negotiations were conducted between personnel of Bruce Tile Company and appellee George Copelan. The development was owned by Seafarer, Inc., a now defunct corporation, for which appellee Copelan served as president. Because appellant was not paid in full under its contract, appellant filed a materialman’s lien against the property. Subsequently, an individual named Rudy Bartholomew worked out a plan with the construction lender to avoid bankruptcy on the project. Appellant entered into a written agreement with Bartholomew to waive its lien as to three of the condominium units in exchange for a promise from Bartholomew that appellant would be paid with interest plus an additional $250 from the proceeds of the sale of these units. Appellant brought this action against appellee Copelan to recover $31,319.12 which remains unpaid on its account for the condominium project.

Appellee Copelan answered setting forth two defenses. First, Copelan claimed he is not individually liable to appellant because the contract was made in his representative capacity as agent for Seafarer, Inc. Secondly, Copelan claimed appellant’s action is barred by accord and satisfaction. A jury verdict was returned for Copelan and Bruce Tile Company now appeals.

1. Appellant enumerated sixteen separate errors. Rule 15 (c) (1) of the Court of Appeals requires that the argument be set forth in the same sequence as the enumeration of errors and requires the sequence of the argument to be numbered correspondingly. In violation of this rule, the sequence of this appellant’s argument bears no relation to its enumeration of sixteen errors. Instead, appellant informs us in its brief that its enumeration of errors may be addressed in three broad categories with three additional sundry errors left over. We would have no problem with appellant’s approach if, within the three sections of its argument, it had identified the particular errors to which any given paragraphs applied. Unfortunately, appellant failed to inform us which of its sixteen alleged errors fit within the three sections of its argument. Since the argument clearly does not follow the enumeration of errors in the order they are set forth, we are left simply to guess which errors are addressed within any given section of the argument. Notwithstanding this deficiency, we are required by statute to consider the appeal. OCGA § 5-6-48 (f); Ehlers v. Schwall & Heuett, 177 Ga. App. 548 (340 SE2d 207) (1986). Accordingly, we will address the errors raised by appellant according to the broad categories under which they are argued.

2. First, appellant argues the trial court erred in permitting appellee to introduce parol evidence to vary the terms of written contracts. The issue first arises in regard to the testimony of appellee that he dealt with appellant only in his representative capacity for Seafarer, Inc. Appellant argues this testimony contradicts the terms of the written document which appellee signed giving no indication of his agency for the corporation. However, this document is not a contract. Appellant’s Exhibit 3 is simply a written proposal setting forth two different prices depending upon the type of tile chosen by the developer. Although appellee signed the proposal, his signature cannot indicate acceptance of an offer sufficient to form a contractual agreement since nowhere on the face of the document is there any indication which of the two proposals he is accepting. It is undisputed that appellee accepted the less costly of the two offers by telephone several months after the written proposal was submitted. Therefore, the agreement for installation of the tile was an oral contract. Even in the case of a written contract, parol evidence is admissible to show the capacity in which an individual signed the contract. Hawkins v. Turner, 166 Ga. App. 50 (1) (303 SE2d 164) (1983). Since this was clearly a parol contract, it was proper to admit testimony as to the identity of the parties to the contract and the capacity in which appellee acted.

The parol evidence issue also arises in regard to the testimony of appellee that appellant agreed to release appellee from any obligation for the outstanding balance on the account when appellant entered into the agreement with the third party, Bartholomew. Appellant argues this testimony improperly varies the terms of the written agreement with Bartholomew. The evidence clearly shows that the written agreement with Bartholomew does not purport to release or satisfy the obligation on the separate contract with appellee. We note that the original agreement between the parties to this action was oral to begin with. Appellee’s testimony that he was released from liability on the account was not offered to alter the written agreement with Bartholomew but to establish a separate oral agreement of accord and satisfaction between the parties in consideration for the liability assumed by Bartholomew. “There is nothing to prevent an accord and satisfaction resulting from an oral transaction.” Wood v. Yancey Bros. Co., 135 Ga. App. 720, 721 (218 SE2d 698) (1975). Therefore, we find the parol evidence rule was not violated.

Appellant also argues the court erred in refusing to instruct the jury as to certain of appellant’s requests to charge. Since these requests are not contained within the record we cannot address these alleged errors. We find no error in the instructions which were given to the jury.

3. In the second broad category of appellant’s enumeration of errors, appellant argues it was entitled to a finding as a matter of law that it was appellee individually, and not the corporation of which he was president, who is liable for credit extended on the account. Appellant offered into evidence certain invoices mailed to appellee which show appellee as the debtor on the account. Because appellee never responded by objecting to these invoices, appellant argues they create a presumption, pursuant to OCGA § 24-4-23, that appellee is liable individually for the account and that appellee failed to rebut that presumption. The evidence shows appellant filed a materialman’s lien in Florida attesting that it was due money from a “contract with George Copelan, Seafarer, Inc.” This admission against appellant’s interest was sufficient evidence by which a jury could find that the presumption in favor of appellant had been rebutted. An issue of fact for jury determination was created on the identity of the party which contracted with appellant.

4. Next, appellant argues appellee failed to carry his burden of proving the affirmative defense of accord and satisfaction of the debt. As noted in Division 2 of this opinion, appellee offered testimony that an oral agreement was reached that appellant would release appellee from its obligation in consideration for the separate agreement entered into between appellant and Bartholomew. Thus, three separate contracts are involved in this case: First, the original oral agreement between appellant and either appellee Copelan or his corporation for the laying of tile; second, the written agreement between appellant and Bartholomew for payment on the original contract plus an additional sum with interest; and third, the testimony of appellee that appellant released him from liability on the original contract in exchange for the promise from Bartholomew. When the second and third contracts are considered together, the jury could find the agreement with Bartholomew was a novation of the original agreement because it substitutes a new party to the original obligation and offers new and additional consideration for the original contract. It appears that the new promise made with the third party Bartholomew was never performed. However, where a new promise is founded on new consideration the mere taking of the promise is a satisfaction of the former agreement. OCGA § 13-4-101; Powers v. American Nat. Bank, 113 Ga. App. 302 (1) (147 SE2d 791) (1966). Whether there is accord and satisfaction of an obligation is generally a question for the jury. Woodstock Rd. &c. Properties v. Lacy, 149 Ga. App. 593 (1) (254 SE2d 910) (1979). Sufficient evidence was presented from which the jury could find the novation furnished the consideration for an accord and satisfaction of the original agreement between the parties to this action.

Decided January 4, 1988.

John H. Watson, for appellant.

Thomas M. Flournoy, Jr., for appellee.

5. We have considered the remaining errors raised by appellant and find them to have no merit.

Judgment affirmed.

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


text:
    75148.
    LOUIS v. THE STATE.
    (364 SE2d 607)
   Pope, Judge.

Appellant, along with two co-defendants, was convicted of trafficking in cocaine and sentenced to a term of twenty-five years and a fine of $250,000. Appellant appeals, setting forth three enumerations of error.

1. After he was incarcerated appellant waived his right to remain silent and gave a statement to the authorities in which he admitted he had previously assisted the two co-defendants in selling cocaine but claimed that the cocaine found in his vehicle at the time of his arrest belonged to the co-defendants. Prior to trial, the court ruled that this statement would be excluded from evidence. Nevertheless, at trial, counsel for one of the co-defendants posed a question to the arresting officer which referred to this excluded statement. Counsel for co-defendant asked: “[D]id anyone in that van at any time admit that it was or accuse anybody else of owning that cocaine, admit it was theirs or accuse anybody else?” The officer answered in the affirmative but did not identify which of the three defendants made such a statement. In the presence of the jury, appellant’s counsel objected to said line of questioning. Pursuant to a discussion outside the presence of the jury, the trial court ruled that co-defendant’s counsel could pursue the line of questioning which he had begun but affirmed his earlier ruling that the statement itself would be excluded. Appellant’s counsel then moved for a mistrial on the ground that any further questioning would be prejudicial to his client and also because the fact that he had voiced his objection before the jury indicated that it was his client who had given the statement referred to by the witness. When the testimony of the witness was resumed before the jury, no further reference was made by either co-defendant’s counsel or the witness to any statement made by any of the defendants.

Appellant argues the court erred in denying his motion for mistrial. Pursuant to OCGA § 17-8-75, when an objection is made to prejudicial statements concerning facts not in evidence, the court shall rebuke counsel and endeavor, by instructions to the jury, to remove the improper impression from their minds. In his discretion, the trial court may order a mistrial. “This discretion will not be interfered with on appeal unless manifestly abused.” Welch v. State, 251 Ga. 197, 200 (304 SE2d 391) (1983). Appellant argues he is entitled to a mistrial because the court issued no corrective instructions to the jury. However, the issue “is whether the uncorrected [statement] of counsel . . . resulted in a miscarriage of justice. The proper standard for such a determination is the highly probable test, i.e., that it is highly probable that the error did not, contribute to the judgment.” (Citations and punctuation omitted.) Sanford v. State, 153 Ga. App. 541, 542 (265 SE2d 868) (1980).

Here we find it highly improbable that the error, if any, contributed to the verdict against appellant. The witness never identified which of the three defendants made the statement which appellant argues was prejudicial. The fact that appellant’s counsel raised an objection to the question does not necessarily imply that it was appellant who made the statement, particularly in light of the fact that the testimony elicited just prior to the objectionable question related to a statement given to the authorities by one of the co-defendants. Therefore, it is more probable that the jury was left with the impression that the objectionable statement was made by the co-defendant rather than the appellant. Moreover, the content of the objectionable statement was never revealed to the jury. The question posed by the co-defendant’s counsel, to which appellant objected, was whether any of the three defendants had either admitted owning the cocaine found in the van or accused anyone else of owning it. The officer simply answered the question in the affirmative. He neither identified which defendant made such a statement nor revealed whether the statement given involved an admission of guilt or an accusation against the other defendants. Therefore the trial court did not err in denying appellant’s motion for mistrial.

2. Appellant next argues that the trial court erred in hearing and denying his motion for new trial before the transcript was prepared despite the fact that the court permitted appellant “to reserve . . . objections until after the transcripts have been prepared. . . .” It is evident from the record that the grant of permission to reserve objections related only to the court’s instructions to the jury. Appellant raises no error as to the court’s instructions to the jury nor does the record reveal any such error was made. Nevertheless, appellant argues he should have been permitted the opportunity to review the transcript before the hearing on his motion for new trial “in light of’ the error raised in his first enumeration. However, as noted in Division 1, we find no error in the court’s ruling on appellant’s objection to co-defendant’s questioning of the arresting officer or appellant’s motion for mistrial. The court may, in its discretion, hear and determine a motion for new trial before the transcript of the evidence is prepared. OCGA § 5-5-40 (c). We find no merit in the appellant’s second enumeration of error.

3. Finally, appellant argues he was denied effective assistance of counsel because his trial attorney failed to file a motion to sever the trial of his case from that of his co-defendants. “Although another lawyer may have conducted the defense in a different manner, asked different questions, called different witnesses, or taken another course of action, the fact that [appellant’s] attorney made decisions during the trial with which [appellant] and his current counsel now disagree, does not require a finding that the original representation of defendant was so inadequate as to amount to a denial of effective assistance of counsel.” Harrell v. State, 139 Ga. App. 556, 557 (228 SE2d 723) (1976). Moreover, the record does not show that appellant was entitled to be tried separately. Whether the co-defendants to a non-capital offense should be tried jointly or separately is a matter left to the discretion of the trial court. OCGA § 17-8-4. A defendant is entitled to severance only where there is a clear showing of harm or prejudice and a showing that failure to sever would result in a denial of due process. Jones v. State, 243 Ga. 584 (4) (255 SE2d 702) (1979). Appellant argues prejudice is shown by the fact the co-defendant’s attorney disagreed with his attorney’s trial strategy to call witnesses and thereby lose the right to make the opening and closing argument. However, the record shows that although appellant filed a subpoena for a trial witness, he did not in the end call any trial witnesses. No conflict arose from this difference in trial strategy. Neither does the fact that appellant filed a separate set of requests to charge create a conflict between him and his co-defendants. The record shows that those charges were filed and duly considered by the trial court. Appellant does not contend that the court erred in its charge to the jury. Finally, the disagreement between appellant’s attorney and the attorney for one of the co-defendants in regard to admitting into evidence the statement made by appellant to the arresting officer resulted in no harm to appellant, as discussed in Division 1. Ultimately, testimony about that statement was never introduced into evidence. Therefore, we find no merit in appellant’s third enumeration of error.

Decided January 4, 1988.

Roy L. Allen II, Kevin E. Perry, for appellant.

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

Judgment affirmed.

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


author: Beasley, Judge.

text:
    75149.
    JOHNSON v. THE STATE.
    (364 SE2d 609)
   Beasley, Judge.

Defendant, convicted of a 1979 escape under Code Ann. § 26-2501 (now OCGA § 16-10-52), appeals on the ground that he was improperly denied a continuance.

Defendant turned himself in to officers on September 23, 1986. Apparently he initially pled guilty to the escape charge. He then withdrew his plea in November and remained incarcerated until his April 1987 trial.

While it does not appear when defendant asked for appointed counsel or why one was not appointed earlier, the record does show that counsel was appointed on Thursday, April 16. The case was called on Monday, April 20, and defendant asked for a continuance. So did counsel, on the ground that he had had inadequate time to prepare and that he was unable to locate one of the State’s listed witnesses.

Defendant testified at the trial and did not deny the escape but contended that one of the deputies (not the absent witness) impliedly authorized him to escape.

As to the request for continuance based on a missing witness, none of the requirements of OCGA § 17-8-25 for obtaining a continuance on this ground were met. “ ‘Each of the requirements . . . must be met before an appellate court may review a trial judge’s discretion in denying a motion for continuance based upon the absence of a witness.’ [Cit.]” Curry v. State, 177 Ga. App. 609 (1) (340 SE2d 250) (1986). See Hullender v. State, 256 Ga. 86, 90 (2) (344 SE2d 207) (1986).

Decided January 4, 1988.

C. Gerald Spencer, Bradfield M. Shealy, for appellant.

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

The second ground, inadequate time for counsel to prepare for trial, also must fail. The granting of continuances is a matter generally left to the trial court’s discretion. OCGA § 17-8-22. “Mere shortness of time does not by itself show a denial of the rights of the accused [Cit.], and denial of a continuance merely because of shortness of time will not reflect an abuse of discretion, where there is no convoluted case or one without a large number of witnesses or intricate defenses. [Cit.] To say otherwise would deprive the trial court of any discretion.” Tucker v. State, 172 Ga. App. 86 (1) (321 SE2d 817) (1984). Here, three witnesses were called by the State and the issue was relatively simple. Defendant admitted threatening guards and leaving custody. Counsel did not state what he needed the additional time for, other than to talk to the State-listed witness, who was not in fact called to testify. It cannot be said that the denial of continuance was an abuse of discretion. Beard v. State, 178 Ga. App. 265 (1) (342 SE2d 751) (1986).

Judgment affirmed.

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


text:
    75213.
    CAPLINGER v. THE STATE.
    (364 SE2d 610)
   Beasley, Judge.

Convicted of rape, OCGA § 16-6-1, aggravated sodomy, OCGA § 16-6-2, and aggravated assault, OCGA § 16-5-21, defendant appeals to this court.

Two errors are enumerated: 1) the evidence is insufficient as a matter of law, and 2) the court erred in admitting into evidence the defendant’s statements because they were involuntary.

1. Without detailing the facts related concerning defendant’s violent attack on a prostitute, we hold that the evidence was sufficient for any rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the offenses for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Defendant contends because he originally invoked his right to remain silent that subsequent statements given by him were inadmissible. Before being interrogated, defendant was read his rights and offered a consent form to sign. Defendant wrote “refused statement” on the form. The police officer investigating the crime asked the defendant some background information and then stated to him, in effect, that she had only heard one side of the story and would like to hear both sides, “this is your opportunity if you want to talk with me about it, to give me your side of the story.” Defendant changed his mind and wrote “I’ve decided it best to cooperate and be honest,” and signed his name on the consent form. He gave a statement which the officer wrote down and he signed. It was exculpatory insofar as the charged crimes were concerned.

A few days later, defendant asked to see the investigating officer, was warned of his rights, signed a consent form and gave the officer a much more detailed statement which, although it was intended to be exculpatory, was much more inculpatory than the first because the defendant admitted some of the acts charged against him but insisted they were consensual on the victim’s part.

In Mitchell v. State, 254 Ga. 353, 356 (7) (329 SE2d 481) (1985), accused refused to sign a waiver and was told by an investigator that if he had an alibi he should tell it so that it could be checked out. Accused contended that this rendered his statement involuntary as an inducement by hope of benefit. The Supreme Court found that not to be so. Tyler v. State, 247 Ga. 119, 122 (2) (274 SE2d 549) (1981), had a similar result where the court found no inducement from an officer’s telling defendant that the “ ‘best thing, if she had anything to do with it, was to go ahead and get it off her chest.’ ”

The trial court determined that, under the totality of circumstances, defendant’s first statement was voluntary and not the product of any inducement. Based upon the above authority we find no error in that ruling.

We are troubled by the fact that the interrogator continued the conversation which eventually led to defendant’s change of mind regarding the first statement. See Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981); Oregon v. Bradshaw, 462 U. S. 1039 (103 SC 2830, 77 LE2d 405) (1983). These cases require that where a defendant asks for an attorney any subsequent conversation relative to the investigation be initiated by defendant. If not, there is no waiver and a Miranda violation occurs. However, even if this was error, it clearly was harmless because the statement given was exculpatory rather than incriminating. Wilson v. Zant, 249 Ga. 373, 377 (1) (290 SE2d 442) (1982). Moreover, it was followed by a statement which was much stronger and tended to be inculpatory, thereby, if valid, vitiating any possible damage accruing from the admission of the first statement. United States v. Johnson, 816 F2d 918, 923 (3rd Cir. 1987); Bryant v. Vose, 785 F2d 364, 367 (1st Cir. 1986); United States v. Packer, 730 F2d 1151, 1157 (8th Cir. 1984).

Based on the proof offered at the Jackson v. Denno (378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964)) hearing, the voluntariness of the second statement and the fact that it was in no way the result or product of the first were clearly established. Under these circumstances, the second statement could not be tainted by the prior statement since the “fruit of the poisonous tree” doctrine is inapplicable to violation of Miranda’s prophylactic rules. Oregon v. Elstad, 470 U. S. 298 (105 SC 1285, 84 LE2d 222) (1985); Wilson v. Zant, supra; Widdowson v. State, 171 Ga. App. 134, 136 (1) (318 SE2d 820) (1984); United States v. Johnson, supra.

Decided January 4, 1988.

Carl Greenberg, for appellant.

Robert E. Wilson, District Attorney, R. Stephen Roberts, Barbara Conroy, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    75438.
    BUTLER v. THE STATE.
    (364 SE2d 612)
   Pope, Judge.

Ira Lee Butler brings this appeal from his conviction and sentence of possessing less than one ounce of marijuana. The three enumerated errors challenge the trial court’s denial of his motion to suppress evidence seized during a warrantless search of his person. Held:

The record evidence is substantially without dispute. At 4:29 p.m. on Sunday, March 22, 1987 Detective Wilson of the Spalding County Sheriffs Department received a telephone call at his office from a confidential informant. The informant told Det. Wilson that Butler was in possession of a “quantity” of marijuana, “he had it in his pockets” and the informant had “seen him with it,” and was presently in the parking lot at the Kroger store, but was only going to be there for a short while before leaving for High Falls State Park in neighboring Butts County. Det. Wilson proceeded immediately to the Kroger parking lot, arrived at 4:38 p.m., and observed Butler standing alone in the middle of the parking lot next to a truck. Det. Wilson had known Butler for some time and recognized him on sight; he also knew that Butler had no personal vehicle of his own. The detective testified: “I pulled up to him. He saw me as I pulled up right beside him. I could tell he was extremely nervous. I asked him what he was nervous about, and — in fact, he took his hands from his pocket, and they were shaking. I asked him what he was so nervous about, and he said nothing. I told him, at that point, I had information he had some drugs on him, to put his hands on the car, I was going to check him. He started to put his hands on the car, and he came back up. Then I had to use a little minor force to put him on the car and keep him down. At that point, I searched him and found a bag of leafy material in his right front pant’s pocket.” Butler was then arrested and taken to the Spalding County Sheriffs Department; he was released a short time later after agreeing to assist Det. Wilson in other drug investigations. However, he was subsequently re-arrested several days later and charged with the subject crime.

The confidential informant had provided information to Det. Wilson on three occasions within the preceding eight months which had led to arrests and subsequent guilty pleas on drug-related charges. Det. Wilson testified that the informant was also familiar with marijuana by sight, but there is no record evidence as to when the informant obtained his information in the case at bar.

1. Butler’s first enumeration asserts that the information received by Det. Wilson did not establish probable cause because the trial court had no basis on which to determine the reliability of the informant, nor did the court have evidence before it to establish how the informant obtained his information. “ ‘The “probable cause” requirements for a search without a warrant are the same requirements necessary for the issuance of a warrant by a magistrate.’ [Cits.]” Collins v. State, 161 Ga. App. 546, 547 (287 SE2d 708) (1982). “We must, therefore, look to the parameters of police knowledge at the time the search occurred to determine if that knowledge was such as would ‘justify a man of reasonable caution in believing that an offense has been or is being committed, and this requires merely a probability — less than a certainty but more than a mere suspicion or possibility. (Cits.)’ [Cits.]” Bogan v. State, 165 Ga. App. 851, 852 (303 SE2d 48) (1983); Durden v. State, 250 Ga. 325 (1) (297 SE2d 237) (1982); Sanders v. State, 235 Ga. 425, 439-440 (219 SE2d 768) (1975), cert. den., 425 U. S. 976 (1976).

The duty of a reviewing court is to ensure that a “substantial basis” for probable cause existed. We must determine under the “totality of the circumstances” whether the evidence in this case showed a fair probability that contraband or evidence of a crime would be found in a particular place. See State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). It is well established that neither the basis of an informant’s knowledge, nor evidence of his veracity, nor corroboration of these elements is an entirely separate and independent requirement to be exacted in every case, but rather these elements are simply useful in illuminating the common sense, practical question whether there is probable cause to believe that contraband or evidence of a crime is located in a particular place. Cichetti v. State, 181 Ga. App. 272 (1) (351 SE2d 707) (1986). “Credibility of witnesses, resolution of any conflict or inconsistency, and weight to be accorded testimony [are] solely the province of the judge on a motion to suppress. [Cits.]” Rogers v. State, 155 Ga. App. 685, 686 (272 SE2d 549) (1980).

The reliability of the informant was shown by his past history of reliability. E.g., Pressel v. State, 163 Ga. App. 188 (1b) (292 SE2d 553) (1982); Mitchell v. State, 150 Ga. App. 44 (1) (256 SE2d 652) (1979). See generally Galgano v. State, 147 Ga. App. 284, 286 (248 SE2d 548) (1978). We find no error in the trial court’s refusal to allow defense counsel to cross-examine Det. Wilson as to the details of the three prior cases in which the informant assisted the officer in order to protect the informant’s identity. See Keith v. State, 238 Ga. 157 (231 SE2d 727) (1977); Simmons v. State, 233 Ga. 429, 431 (211 SE2d 725) (1975); cf. Miller v. State, 169 Ga. App. 552 (2) (314 SE2d 120) (1984). Although the record shows the informant obtained his information by personal observation, there is no evidence as to when the informant obtained his information in this case. However, the information furnished — albeit scanty — was of sufficient detail to show it to be more than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation. See, e.g., Pittman v. State, 162 Ga. App. 51 (1) (289 SE2d 531) (1982); Collins v. State, supra; Register v. State, 124 Ga. App. 136 (183 SE2d 68) (1971), cert. den., 405 U. S. 919 (1972). Moreover, within minutes of receiving the information, Det. Wilson proceeded to the location and found Butler as indicated. The officer knew Butler on sight, and Butler exhibited extreme nervousness upon the officer’s approach. The subsequent search of Butler’s person disclosed his possession of marijuana in his pant’s pocket as reported by the informant. Under the totality of the circumstances in this case, we find a substantial basis for probable cause to have existed. See Pritchett v. State, 134 Ga. App. 254 (1) (214 SE2d 180) (1975), cert. den., 425 U. S. 938, reh. den., 425 U. S. 1000 (1976). See generally Bradford v. State, 184 Ga. App. 459 (3) (361 SE2d 838) (1987).

2. “Whether exigent circumstances precluded obtaining a warrant is a question of fact to be determined by the trial court. The judge’s decision, if supported by any evidence, is to be accepted. [Cit.]” Pittman v. State, supra at 52. Det. Wilson’s information that Butler was about to leave the jurisdiction provided ample evidence of exigent circumstances. See Moore v. State, 174 Ga. App. 826 (1) (331 SE2d 115) (1985); see also Collins v. State, supra; Smith v. State, 135 Ga. App. 424 (218 SE2d 133) (1975).

3. Butler’s final enumeration cites as error the trial court’s refusal to allow cross-examination of Det. Wilson concerning his motives in re-arresting Butler several days after the initial arrest. See generally OCGA § 24-9-64. The trial court ruled: “What happened after [the original detention and search] is entirely irrelevant to this particular motion which addresses itself to a certain incident that took place in the [Kroger] parking lot on such and such a date, and that’s what we have under investigation. . . . All this business that you’re talking about afterwards that [Butler] didn’t do what he was supposed to do and that’s why he’s [being prosecuted] . . . may be evidence you might want to bring up before a jury if, and when, it’s tried. It has nothing to do with this motion to suppress.” We find no error in the trial court’s ruling and no abridgement of Butler’s right of cross-examination. See Graham v. State, 152 Ga. App. 233 (1b) (262 SE2d 465) (1979); see also Peacock v. State, 170 Ga. App. 309 (3) (316 SE2d 864) (1984); Cauley v. State, 130 Ga. App. 278 (1b) (203 SE2d 239) (1973), cert. den., 419 U. S. 877 (1974).

Decided January 4, 1988.

M. Michael Kendall, for appellant.

John T. Newton, Jr., Solicitor, for appellee.

We find no ground for reversal for any reason assigned on appeal.

Judgment affirmed.

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


text:
    75599.
    HAROLD v. THE STATE.
    (364 SE2d 615)
   Pope, Judge.

Defendant was indicted for selling a controlled substance (cocaine) and was convicted by a jury of the lesser included offense of possession of cocaine. Held:

1. Defendant first argues that the evidence is insufficient to support the verdict because it was procured by means of entrapment. See OCGA § 16-3-25. As to this issue, the evidence shows the following: On October 3, 1985 defendant and others were passengers in a car driven by Agent Charles Boyd of the Georgia Bureau of Investigation. At the time of the incident, Agent Boyd was part of an undercover sting operation conducted by the GBI in Columbus, Georgia. Agent Boyd testified that he indicated to defendant that he wanted to purchase some cocaine, and that defendant directed him to a certain address in the Third Street (or Avenue) area. Agent Boyd further testified that the defendant met with an unidentified male subject at the stated address, that the defendant and the unidentified male subject went for a short walk, returned and went inside the building located there. Defendant then exited the building, returned to the car, and handed Agent Boyd a quantity of cocaine. Agent Boyd then paid the defendant $50 for the cocaine. Agent Boyd also testified that he and other GBI agents sometimes simulated the use of marijuana and cocaine as part of their undercover operations and that he had simulated the use of marijuana with the other occupants of the car on the day in question.

The defendant testified that he smoked marijuana and snorted cocaine with Agent Boyd and the other occupants of the car on that date. Defendant further testified that Agent Boyd provided both the cocaine and marijuana and that Agent Boyd participated in the use of both drugs. Defendant admitted that he was a user of cocaine, but denied being addicted to the drug or selling it. Defendant also specifically denied purchasing cocaine for Agent Boyd on the date in question.

“Normally a defendant must admit the commission of the crime in order to raise the defense of entrapment.” Lawrence v. State, 174 Ga. App. 788, 791 (331 SE2d 600) (1985). However, “if a reasonable inference of entrapment may be drawn by a rational jury from the (S)tate’s evidence, the defendant is entitled to a jury charge on entrapment unless he has presented evidence of entrapment inconsistent with his denial of the commission of the crime.” (Citation and punctuation omitted.) Lester v. State, 174 Ga. App. 886, 888 (331 SE2d 31) (1985); see also Christian v. State, 181 Ga. App. 569 (1) (353 SE2d 65) (1987).

In the case at bar, the only evidence concerning whether the defendant was entrapped into selling cocaine to Agent Boyd is the uncontradicted testimony of the latter. This testimony shows only that Agent Boyd asked the defendant to procure cocaine for him; there is no evidence that Agent Boyd induced or solicited defendant to commit the crime charged “ ‘by undue persuasion, incitement, or deceitful means.’ ” Lawrence, supra at 791. Hence, defendant could not avail himself of an entrapment defense as to this issue.

We also reject defendant’s argument that the evidence which formed the basis of his conviction for possession of cocaine was procured by improper means because Agent Boyd allegedly furnished the cocaine and simulated its use. In considering a defense of entrapment, “[t]he primary issue is whether the defendant was predisposed to violate the law; it is not entrapment where a government officer merely provides one predisposed to violate the law with the opportunity to do so. [Cits.]” Norley v. State, 170 Ga. App. 249, 250 (316 SE2d 808) (1984). Thus, “[t]he entrapment defense focuses on the intent and predisposition of the defendant to commit the crime as well as upon the conduct of the government’s agents. Hampton v. United States, 425 U. S. 484 (96 SC 1646, 48 LE2d 113) (1976). As stated in Hampton at 490: ‘. . .If the police engage in illegal activity in concert with a defendant beyond the scope of their duties the remedy lies, not in freeing the equally culpable defendant, but in prosecuting the police under the applicable provisions of state or federal law.’ See United States v. Russell, 411 U. S. 423 (93 SC 1637, 36 LE2d 366) (1973).” Griffin v. State, 154 Ga. App. 261, 263 (267 SE2d 867) (1980). Hence, the enumeration affords no basis for reversal.

Decided January 4, 1988.

H. Haywood Turner III, for appellant.

2. Defendant next argues that the trial court erred in not granting his motion for mistrial based upon testimony that defendant was incarcerated on an unrelated drug charge when the warrant for this arrest was served in the present case. As to his issue the record indicates that defense counsel asked Agent Boyd: “How long after this [the alleged drug purchase] was [defendant] arrested on this charge?” and Agent Boyd responded: “[T]he defendant was arrested on an unrelated drug charge. At some point in time I believe the Columbus Police Department’s Vice Squad served him with this warrant.” Defendant immediately moved for a mistrial, contending that the statement was unresponsive and placed the defendant’s character in issue. The trial court denied the motion, but instructed the jury not to consider any other charges against the defendant; the defendant renewed his motion. On appeal, defendant reasserts his arguments that the testimony was unresponsive, impermissibly placed his character in issue and was highly prejudicial. We disagree. Reviewing the testimony as a whole, it is clear that the witness’ answer was not unresponsive to the question propounded by counsel, but rather was an attempt to explain why the witness was unsure of the date on which defendant was served with the warrant for his arrest on the present charge, because the defendant had already been incarcerated when that warrant was served, a fact which was presumably known by the propounder of the question. “ ‘Although one may legitimately complain about illegal testimony which is not responsive to the question, one cannot take chances in propounding questions which may elicit damaging answers, otherwise inadmissible, and then demand a mistrial when such an answer is given. Henderson v. State, 208 Ga. 73, 75 (65 SE2d 175) (1951).’ Felker v. State, 252 Ga. 351, 377 (314 SE2d 621) [(1984)].” Byrd v. State, 182 Ga. App. 284, 286 (355 SE2d 666) (1987); see also Jackson v. State, 180 Ga. App. 363 (2) (349 SE2d 252) (1986). “In light of the broad discretion accorded trial courts for decisions to grant or deny motions for mistrial. . . , and considering [the circumstances and corrective action taken] in the present case, [defendant’s] enumeration of error is without merit.” McDermott v. State, 183 Ga. App. 693, 694 (359 SE2d 750) (1987).

Judgment affirmed.

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

William J. Smith, District Attorney, for appellee.


text:
    75442.
    SPRUELL v. SMITH.
    (364 SE2d 594)
   Banke, Presiding Judge.

The appellant sued the appellee, a neurosurgeon, to recover damages for alleged medical malpractice. The jury returned a verdict for the appellee, and the appellant brought this appeal from the denial of her motion for new trial. Held:

1. The appellant contends that the trial court erred in refusing to allow her medical expert to refer to the contents of a respected medical text in support of his opinion as to the precautions which should be taken to avoid damage to tissue outside the disc space during the performance of a laminectomy.

An examination of the transcript reveals that the witness did not refer to the contents of the medical text as support for any opinion which he had offered but was simply asked to state what the text said with respect to the subject under consideration. “While an expert witness may support his opinion by reference to books, statistical sources and other learned sources, his testimony is inadmissible when it is merely a restatement of a textbook opinion rather than an independent expression of his own expert opinion.” Dept. of Transp. v. Brand, 149 Ga. App. 547 (1) (254 SE2d 873) (1979). See also Isley v. Little, 219 Ga. 23, 31 (131 SE2d 623) (1963). Moreover, even had the contents of the medical text been referred to by the witness as support for his own opinion, this enumeration of error would establish no ground for reversal since no offer of proof was made with respect to the excluded evidence. See generally Paulk v. Thomas, 115 Ga. App. 436 (4) (154 SE2d 872) (1967).

2. The appellant contends that the trial court further erred in “disallowing” certain testimony which she sought to elicit from her medical expert in response to a hypothetical question. An examination of the transcript reveals that the witness was not prevented from responding to the hypothetical but that, to the contrary, he did respond to it, expressing clearly and unambiguously his opinion that the appellee failed to exercise due care in his treatment of the appellant.

From the argument offered in support of this enumeration of error, it is evident that the appellant’s complaint actually relates to the conduct of appellee’s counsel in interrupting her counsel in the midst of the lengthy hypothetical, to object that the question was overly lengthy and repetitious. Appellant’s counsel responded to the objection by stating, “I will be happy not to put even this much . . . ,” whereupon the trial court interjected the following comment: “Well, I don’t think it’s necessary to review all the evidence in the case to state your hypothetical. You can be more brief than that.” The appellant’s counsel then completed the hypothetical question and obtained an answer from the witness without further interruption. The appellant’s counsel’s assertion on appeal that the interruption and ensuing colloquy caused him to lose his train of thought and to feel “awkward and unintelligent before the jury” clearly establishes no ground for reversal under these circumstances.

Decided December 4, 1987

Rehearing denied January 5, 1988.

Larry W. Thomason, for appellant.

Sidney F. Wheeler, Earl W. Gunn, Suzanne M. Trexler, for appellee.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    75157.
    McQUEEN v. THE STATE.
    (364 SE2d 617)
   Pope, Judge.

On January 24, 1986 defendant McQueen met an undercover agent at a residence in West Point, Georgia. The agent asked defendant if he had anything to sell and defendant sold him $25 worth of cocaine. Defendant admits the cocaine was his and that he made the sale. However, defendant raised the defense of entrapment, claiming he had no predisposition to sell the cocaine, that he intended to use it for himself and that he sold it to the agent only after repeated requests by the agent. The agent testified he made only one request to purchase and that defendant readily complied. Defendant was convicted of violation of the Georgia Controlled Substances Act, OCGA § 16-13-30, and was sentenced to imprisonment for ten years. Defendant appeals on the ground there was insufficient evidence presented at trial to support the conviction.

It is undisputed that the cocaine sold by defendant in this case was his own, that he was not furnished the drugs to sell by any agent of the state and was not instructed by any agent to make the sale. The only evidence presented in support of the defense of entrapment is defendant’s testimony that he initially resisted the agent’s request and made the sale only after the repeated and persistent requests of the agent. “Because the phrase ‘undue persuasion’ [as used in Georgia’s entrapment statute, OCGA § 16-3-25] is used in context with ‘incitement or deceitful means,’ it must mean something more than repeated requests for contraband drugs knowingly owned and possessed by one who at first demurs to the disposition of his drugs.” Garrett v. State, 133 Ga. App. 564, 566 (211 SE2d 584) (1974). Accord Johnson v. State, 147 Ga. App. 92 (248 SE2d 168) (1978). Therefore, defendant’s testimony does not establish the defense of entrapment. Even if the defense were established, the testimony of the undercover agent that he exerted no pressure on defendant to make the sale is sufficient to rebut the defense of entrapment and to create an issue of fact to be submitted to the jury. See McDonald v. State, 156 Ga. App. 143 (4) (273 SE2d 881) (1980).

Decided January 5, 1988.

E. Earl Seals, for appellant.

William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, Assistant District Attorney, for appellee.

Despite defendant’s statement to the contrary, the transcript shows the jury was duly instructed that once the defense of entrapment is raised, the burden is upon the state to prove lack of entrapment beyond a reasonable doubt. The jury instructions also included the following statement: “If an officer of the law has reason to believe that the law is being violated, he may proceed to ascertain whether those who are thought to be doing so are actually committing a criminal offense. If the conduct of the officer is such as not to induce an innocent person to commit a crime, but to secure evidence upon which a guilty person can be brought to justice, then there is no entrapment.” We do not find this statement violates the prohibition against introducing the “good faith” of the officer as an issue where the defense of entrapment is raised. See Keaton v. State, 253 Ga. 70 (316 SE2d 452) (1984).

The evidence in this case is clearly sufficient so that any rational trier of fact could reasonably have found from the evidence adduced at trial proof of the guilt of defendant beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    75301.
    HUMPHREY et al. v. ALVARADO.
    (364 SE2d 618)
   Pope, Judge.

Plaintiff Elizabeth Anne Humphrey brought this medical malpractice suit on behalf of herself and her infant daughter Phoebe, now deceased. Plaintiffs allege negligence in the diagnosis and treatment of Phoebe on the part of defendant Alvarado, Phoebe’s pediatrician, and two general surgeons not parties to this appeal, which plaintiffs contend caused the loss of approximately 80 percent of Phoebe’s small intestine and, ultimately, caused her death. The trial court granted defendant Alvarado’s motion for summary judgment, and plaintiffs concede in their brief on appeal that defendant’s expert evidence in support of his motion was sufficient to pierce the allegations of the complaint and thus required them to produce expert medical testimony to counter defendant’s evidence of non-negligence. The trial court’s extensive findings of fact and conclusions of law listed several shortcomings in plaintiffs’ evidence in response to defendant’s motion, and plaintiffs assign error to three of them.

1. Plaintiffs’ first enumeration challenges the trial court’s finding that plaintiffs’ expert did not show his “competence” and thus did not give “competent” evidence. Plaintiffs’ expert averred: “I am a physician licensed to practice medicine in the State of Louisiana . . . and give this affidavit based on my personal knowledge of the facts contained herein. . . .Iam familiar with the standards of care of reasonable physicians under circumstances the same or similar to those surrounding the care and treatment of Phoebe Humphrey between 8/ 29/84 and 9/12/84.”

“Acceptance or rejection of the qualifications of a proffered expert witness is within the sound discretion of the trial judge and will not be disturbed on appeal absent manifest abuse.” Jester v. State, 250 Ga. 119 (1) (296 SE2d 555) (1982). The evidence of plaintiffs’ expert’s qualifications is truly minimal, but construed most strongly in favor of plaintiffs as the parties opposing the summary judgment motion, we find it adequate to support the expert’s opinion and thus conclude that the trial court abused its discretion in rejecting the expert’s qualifications. See Queen v. McDaniel, 178 Ga. App. 504 (343 SE2d 783) (1986); see also Atlanta Car for Hire Assn. v. Whited, 179 Ga. App. 893 (6) (348 SE2d 102) (1986); Beatty v. Morgan, 170 Ga. App. 661 (1) (317 SE2d 662) (1984).

2. Notwithstanding the foregoing, however, we find the trial court properly entered summary judgment in favor of defendant on the ground that plaintiffs’ expert’s affidavit failed to set forth the standard of care applicable to the facts of this case. “To be sufficient to controvert the defendant’s expert opinion and create an issue of fact, the plaintiffs’] expert must base his opinion on medical records which are sworn or certified copies, or upon his own personal knowledge; and he must state the particulars in which the defendant’s treatment of the plaintiff was negligent. . . . [T]he plaintiff [s] cannot prevail on motion for summary judgment by merely presenting a conclusory opinion that defendant was negligent or failed to adhere to the professional standard. [They] must state the particulars. [They] must establish the parameters of the acceptable professional conduct and set forth how or in what way the defendant deviated therefrom.” (Citations and punctuation omitted.) Loving v. Nash, 182 Ga. App. 253, 255 (355 SE2d 448) (1987); Martin v. Wilson, 184 Ga. App. 196 (1) (361 SE2d 209) (1987); see Connell v. Lane, 183 Ga. App. 871 (360 SE2d 433) (1987). Although plaintiffs’ expert avers that he is familiar with the standard of care of reasonable physicians under circumstances the same or similar to those surrounding the care and treatment of Phoebe, he offers no enlightenment as to the particulars of that standard. Rather, he offers merely the unsupported conclusion that defendant failed to exercise reasonable care “when he failed to refer Phoebe Humphrey’s care to physicians and medical care facilities who deal routinely with infants with problems such as Phoebe exhibited. This is true if [defendant] believed that there was not a pathologist in Valdosta, Georgia who could properly interpret a rectal biopsy.” He offered no opinion as to when this referral should have occurred. Phoebe was, in fact, transferred to Scottish Rite Children’s Hospital in Atlanta on the twelfth day after her birth. This omission is particularly telling in light of the unrebutted evidence of a surgical emergency within the first 28 or so hours of Phoebe’s life. Moreover, he merely speculated that this failure deprived Phoebe of the type of care which would have been “most likely” to recognize the true causes of her problems and would have had the personnel, training and experience to deal with them “appropriately.” Such speculation (or “hindsight” judgment, cf. Word v. Henderson, 220 Ga. 846, 848 (142 SE2d 244) (1965), rev'g 110 Ga. App. 780 (140 SE2d 92) (1964)) does not successfully rebut defendant’s showing of no negligence. See generally Peachtree Mtg. Corp. v. First Nat. Bank, 143 Ga. App. 17 (4) (237 SE2d 416) (1977). Also, we are afforded no explanation as to what negligence, if any, is involved by sending a rectal biopsy out of town for analysis.

3. We also agree with the trial court’s findings that plaintiffs’ expert’s testimony did not establish a causal relationship between defendant’s alleged negligence and Phoebe’s injuries. The gist of plaintiffs’ expert’s remaining assertions of negligence is that defendant should have recognized the signs and symptoms of abdominal distention in Phoebe prior to her first surgery “on September 3, 1984”; that this symptom in addition to other symptoms exhibited by Phoebe should have resulted in Hirschsprung’s disease (a congenital defect of the colon) becoming a part of the initial differential diagnosis, which he should have discussed with the surgeons, so that when it became clear that the first surgery was not effective, the presence of this congenital defect would have been confirmed between the first and second surgeries in sufficient time to save the destruction of as much of Phoebe’s small intestine as was destroyed; and that the failure to recognize the presence of Hirschsprung’s disease and deal with it properly resulted in the destruction of the majority of Phoebe’s small intestine.

Decided January 5, 1988.

James M. Anderson III, for appellant.

William U. Norwood III, Wade H. Coleman, for appellee.

This evidence is deficient in several respects. Firstly, the first surgery was on August 31, 1984; the second surgery was on September 3. We are thus uncertain as to the time frame in which the expert has based his opinion. Secondly, the surgeon recognized the abdominal distention prior to the first surgery and at that time was primarily responsible for Phoebe’s care and treatment. Therefore, whether or not defendant recognized the distention would appear to be of no consequence. Thirdly, in response to an out-of-town family emergency, defendant left Phoebe in the care of another pediatrician and the surgeons prior to the first surgery and did not return to Valdosta until after the second surgery. In the absence of any allegations of negligence in selecting his stand-in, see generally Wyatt v. Ford, 185 Ga. App. 111 (363 SE2d 866) (1987) (Deen, P. J., dissenting), defendant could not reasonably be held responsible for any actions taken or not taken during his absence.

We find no basis for reversal of the trial court’s entry of summary judgment in favor of defendant.

Judgment affirmed.

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