text:
    A00A0849.
    MAY v. THE STATE.
    (535 SE2d 252)
   Ruffin, Judge.

Following a bench trial on stipulated facts, the trial court found Leroy May III guilty of felony escape and sentenced him to five years with two to serve. In his sole enumeration of error on appeal, May challenges the sufficiency of the evidence. For reasons that follow, we affirm.

Prior to trial, May stipulated to the following facts. In March 1991, May pled guilty to felony forgery and was sentenced to five years to be served on probation. After he violated a condition of his probation, his sentence was modified to require that he serve four to six months in a Diversion Center. On September 12, 1994, May left the Diversion Center and failed to return as required. Following an eight-hour grace period, May was declared an escapee. On January 16, 1999, May was arrested for the offense of escape.

On appeal, May asserts that the trial court erred in failing to grant his motion for directed verdict because the State failed to prove the offense of felony escape. According to May, the State merely proved that he had committed misdemeanor escape.

Escape is defined, in pertinent part, as:

Intentionally fail[ing] to return as instructed to lawful custody or lawful confinement or to any residential facility operated by the Georgia Department of Corrections after having been released on the condition that he . . . will so return; provided, however, such person shall be allowed a grace period of eight hours from the exact time specified for return if such person can prove he . . . did not intentionally fail to return.

Under OCGA § 16-10-52 (b):

[a] person who, having been convicted of a felony or misdemeanor, is convicted of the offense of escape shall be punished by imprisonment for not less than one nor more than ten years. Any other person convicted of the offense of escape shall be punished as for a misdemeanor.

Thus, the basis for a person’s detention determines whether the offense constitutes either felony or misdemeanor escape. May asserts that, under the express language of this provision, he was guilty only of misdemeanor escape. We find his assertion meritless.

Here, May stipulated that he had been convicted of forgery. He also stipulated that, when he violated the terms of his probation, he was confined to a Diversion Center. Finally, May stipulated that he failed to return to the Center as instructed. Clearly, these facts constitute felony escape.

Decided May 25, 2000.

G. Randolph Jeffery, for appellant.

Alan A. Cook, District Attorney, Jeffrey L. Foster, Assistant District Attorney, for appellee.

Contrary to May’s contention, Smith v. State does not require a different result. In Smith, the defendant was convicted of burglary and placed on probation, which he allegedly violated. While waiting for a hearing on the alleged violation, the defendant escaped from lawful custody. In finding that the defendant’s escape was a misdemeanor, this Court reasoned that the basis for the defendant’s confinement was the alleged probation violation — not the underlying conviction. Here, however, the basis for May’s detention was more than a mere allegation. May stipulated that he violated his probation. Accordingly, his original sentence for his forgery conviction was modified to include confinement in the Diversion Center. Thus, the authority for May’s confinement was his original conviction, and when May escaped his confinement, he committed a felony. It follows that the trial court did not err in sentencing him under the felony sentencing provision.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       OCGA § 16-10-52 (a) (5).

        Smith v. State, 154 Ga. App. 608 (269 SE2d 100) (1980) (“The authority for the detention is an essential element of the felony offense of escape.”).

       Id.

       See OCGA § 42-8-34 (g) (judge empowered to revoke or modify a probated sentence).

       See Echols v. State, 233 Ga. App. 578 (505 SE2d 55) (1998).


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A00A1317.
    DALTON v. THE STATE.
    (534 SE2d 523)
   Barnes, Judge.

Larry D. Dalton entered a guilty plea to making terroristic threats but later moved to withdraw his plea. Finding that Dalton’s guilty plea had been entered freely and voluntarily, the trial court denied his motion. On appeal, Dalton attacks the trial court’s ruling on the voluntariness of his plea. Having reviewed the transcript of the plea hearing, we agree with the trial court’s determination and affirm.

After efforts to negotiate a guilty plea agreement were unsuccessful, Dalton’s case proceeded to trial. Following the trial court’s initial instructions to the jury, a bench conference ensued during which defense counsel raised the possibility of farther plea negotiations. In a hearing outside the jury’s presence, defense counsel informed the court that the prosecution would be willing to consider probation with intensive supervision. But the trial court rebuffed that proposal, replying:

He had until 9:30 yesterday. This Court is not going to play like that. If he wants to plead guilty, he can plead guilty, but it’s going to be a blind plea. It’s just that simple. I gave him until 5 o’clock Friday after the call calendar, and then I gave him until 9:30 yesterday morning, so it’s going to be a blind plea. That’s all I can tell him. And I need to know in five minutes.

After defense counsel and Dalton conferred, counsel announced, “My client understands that it will be a blind plea, and he would like to do that.” The State then made the standard inquiries of Dalton to ensure that Dalton was fully and appropriately apprised of the rights he would surrender by pleading guilty. In particular, Dalton was advised fully of his rights under Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969), i.e., that he understood he was waiving his Fifth Amendment rights, his right to trial by jury, and his right to confront the witnesses against him. Among other things, Dalton stated that he understood that the court might impose the same punishment as if he had been tried and convicted by the jury. Dalton admitted knowing that his sentence would be “solely a matter for the judge to decide.” After being alerted to the drawbacks of entering a plea, Dalton nevertheless affirmed that he still desired to enter a guilty plea and was doing so freely and voluntarily, without anyone coercing him to do so or promising anything to him. The court again advised Dalton that a jury trial could be started “in one minute or less,” if he wanted a trial. Reiterating that Dalton would be entering a “blind plea,” the trial court painstakingly clarified the consequences of such a plea, as follows:

Do you also understand that this is what is called a blind plea? There’s no plea bargain whatsoever which means once you enter this plea, you can’t pull out of it unless I give you permission to pull out of it. I can sentence you anywhere between one year in jail up to five years in jail, and I could fine you up to $100,000 if I so desire? I’m not saying I’m going to do that, but the law allows me to do that. If I sentence you to five years in jail this morning and don’t allow you to withdraw your plea of guilty, it’s nothing you could do about it. You could appeal it to other courts but as far as this court’s concerned, you’ll be stuck with that sentence. You understand that?

Dalton answered that he understood. After some additional admonitions, the court again inquired, ‘You understand everything I just told you about the blind plea, and about why I could sentence you to, and that you can’t withdraw it?” Dalton responded, “Right.”

After Dalton entered his guilty plea, the State tendered evidence of Dalton’s three prior felony convictions and requested a five-year sentence with the first three years to be served in confinement. After the State’s recommendation, the trial court reiterated that this was a blind plea. The court imposed a five-year sentence with the first two years to be served in confinement.

About a month later, however, Dalton filed a pro se motion to withdraw his guilty plea. Dalton claimed that his plea had not been knowingly and voluntarily entered and that he did not fully understand it.

1. Dalton now contends that he did not enter his guilty plea freely and voluntarily and without hope of benefit. He claims his plea was based “on the mistaken assumption he would be given a probated sentence.”

Contrary to Dalton’s claim, as the transcript amply documents, the trial court emphatically rejected the recommendation by defense counsel for probation. During the hearing, Dalton admitted that no plea agreement had been reached and that the State had made no promises to him. Dalton was repeatedly advised that he could still proceed to trial, but if he entered a guilty plea, then the ultimate sentence would be decided by the court. Defense counsel’s unsuccessful request for a probated sentence did not constitute an offer of hope or promise of benefit made by the State. Compare Thompson v. Greene, 265 Ga. 782, 783-784 (1) (462 SE2d 747) (1995) (in exchange for “substantial cooperation” from the defendant, the State agreed not to oppose a future motion to modify his sentence).

2. Dalton asserts that the trial court improperly denied his motion to withdraw his guilty plea.

Once a defendant raises an issue about the validity of his guilty plea, the State has the burden of establishing that the plea was voluntarily and intelligently entered. Scurry v. State, 194 Ga. App. 165, 166 (390 SE2d 255) (1990). One way the State may satisfy this burden is by showing that the defendant realized all the rights he was waiving and the possible consequences of his plea. King v. State, 215 Ga. App. 139, 140 (1) (449 SE2d 870) (1994). The State met that burden. See Uniform Superior Court Rule 33.8.

An accused may withdraw a guilty plea at any time before judgment is announced. See OCGA § 17-7-93 (b). But after sentence is pronounced, as here, permission to allow the withdrawal of a guilty plea lies within the trial court’s sound discretion, and the court’s decision will not be disturbed unless that discretion is manifestly abused. Wilcox v. State, 236 Ga. App. 235, 236 (2) (511 SE2d 597) (1999); Collins v. State, 163 Ga. App. 403 (294 SE2d 623) (1982). We find no abuse of discretion. On the contrary, the trial court carefully and methodically explained to Dalton exactly what a “blind plea” involved and what the consequences might well be. See Wilcox, supra, 236 Ga. App. at 237. The transcript plainly belies Dalton’s assertion that the trial court abused its sound discretion in denying the motion to withdraw his guilty plea. DeLapuente v. State, 182 Ga. App. 808, 809 (357 SE2d 155) (1987).

Decided May 8, 2000

Reconsiderations dismissed May 26,2000.

James D. Crowe, for appellant.

Larry D. Dalton, pro se.

Harry N. Gordon, District Attorney, Michael E. Eberhardt, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


text:
    A00A0068.
    BROWN v. THE STATE.
    (535 SE2d 281)
   Barnes, Judge.

Leonard Carlos Brown appeals his conviction for aggravated battery. He contends the trial court erred by allowing him to represent himself because he did not knowingly, intelligently, and voluntarily waive his right to representation by counsel. Brown also contends the trial court erred by admitting prejudicial hearsay into evidence. Finding no error, we affirm.

Brown was represented by appointed counsel from June 24, 1998, until appointed counsel withdrew from the case on September 18, 1998, after Brown terminated his services because he had retained counsel. Then, on October 2, 1998, retained counsel withdrew from the case when Brown discharged him. Brown then decided to proceed pro se. The trial court, however, directed that the original appointed counsel assist Brown throughout trial. On February 12, 1999, Brown, with the assistance of appointed counsel, argued the motions in the case.

During his arraignment, in response to the trial court’s question, Brown stated that he wanted to represent himself. With Brown present, appointed counsel stated, “[Brown] puts himself in great jeopardy by not using an attorney.” The trial court, however, allowed Brown to proceed pro se but directed Brown to confer with the appointed counsel before filing motions and also instructed counsel and Brown to meet.

As recited in the trial court’s order denying Brown’s motion for new trial, when the case came to trial on March 1, 1999, in response to the trial court’s question, Brown again stated he intended to represent himself. In response to the prosecutor’s suggestion, the trial court then advised Brown of the maximum sentence he faced on the counts of the indictment and also informed him of the possible lesser included offenses. The trial court reminded Brown that he had a right to representation by counsel, and Brown again stated he wanted to represent himself. Responding to the trial court’s questions, Brown stated that he had adequate time to prepare for trial and that appointed counsel had been available for consultation. The trial court told Brown that the attorney who had been appointed to consult with him would be allowed to take over Brown’s case at any time during the trial.

Additionally, the record contains numerous handwritten motions or briefs that Brown filed on his own behalf, and other motions were filed on Brown’s behalf by the attorney appointed to consult with him. Moreover, in response to Brown’s request, the trial court allocated funds to pay for defense experts to inspect, examine, and test the State’s evidence. Counsel appointed to consult with Brown was present throughout the trial to confer with Brown.

1. One charged with a felony has an unconditional and absolute constitutional right to representation by a lawyer that attaches at the pleading stage of the criminal process. This right may be waived only by voluntary and knowing action by the accused. Further, waiver will not be lightly presumed, and a trial court must employ every reasonable presumption against waiver. Should a defendant wish to represent himself, however, he must be given an opportunity to voluntarily, knowingly, and intelligently waive his right to counsel. Such a waiver requires an intentional surrendering or abandonment of the right to counsel, and the constitutional right of the accused to be represented by counsel invokes the protection of-the trial court. Prater v. State, 220 Ga. App. 506, 508 (469 SE2d 780) (1996).

In Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981), our Supreme Court held that in these cases:

the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.

Decided May 26, 2000.

Frederick M. Scherma, for appellant.

Patrick H. Head, District Attorney, Joel C. Pugh, Debra H. Bernes, Maria B. Golick, Assistant District Attorneys, for appellee.

No magic language must be used by a trial judge when determining that a defendant has validly waived his right to counsel. Reviere v. State, 231 Ga. App. 329, 330 (1) (498 SE2d 332) (1998). This determination depends upon the particular facts and circumstances of each case, including the accused’s background, experience, and conduct. Clarke v. Zant, supra, 247 Ga. at 196. Considering the complete record in this case, we are satisfied that the trial court did not err by allowing Brown to represent himself. Brown knowingly and intelligently waived his right to counsel. Harris v. State, 269 Ga. 731, 733 (2) (505 SE2d 467) (1998).

2. Brown’s second enumeration of error is also without merit. Rather than admitting hearsay, as Brown contends, the transcript shows that the witnesses’ prior inconsistent statements were introduced as substantive evidence under Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982).

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


author: Smith, Judge.

text:
    A00A0129.
    WHITE et al. v. TRAINO.
    (535 SE2d 275)
   Smith, Judge.

Three occupants of a residence that was searched pursuant to a lawful warrant alleged various tort claims against Captain Russell Traino of the Columbus Police Department, the officer who supervised the drug raid. Roberto C. White III (hereinafter “White”), his wife, Dessie R. White, and their 12-year-old son, Kelvin White, brought suit solely against Captain Traino individually. The Whites’ complaint asserted claims for several intentional torts purportedly perpetrated by Traino, including an alleged assault and battery of White, an alleged assault and illegal search of a purse belonging to Dessie White, an alleged assault and battery of Kelvin White, and the false imprisonment of all three plaintiffs. The trial court determined that Traino was entitled to summary judgment, and we agree.

Traino sought summary judgment on several grounds: official immunity in the absence of evidence of actual malice, the lawful execution of a warrant under OCGA § 17-5-28, the inapplicability of the doctrine of respondeat superior, and an assertion that OCGA § 17-5-20 foreclosed the claims for false imprisonment. Without reciting the basis for doing so, the trial court awarded summary judgment to Traino.

In their sole enumeration of error, the Whites assert that summary judgment was precluded by their deposition testimony. They claim that a jury must resolve whether Traino exceeded the scope of the warrant, unlawfully searched and detained them, and committed other torts. The evidence, including the testimony of the Whites, belies these assertions.

When viewed in a light most favorable to the nonmovant, the evidence showed that a confidential informant disclosed to police that Roberto White TV and Jeremiah Hill were selling cocaine from this residence. The warrant issued by the magistrate authorized a search for the younger White, a resident of the household, and for a quantity of crack cocaine. The warrant expressly authorized police to conduct a diligent search of the premises “AND OF THE PERSONS FOUND THEREIN OR THEREON FOR SAID (Property) (Person) ABOVE DESCRIBED.”

Under Traino’s supervision, drug agents entered the residence of the Whites pursuant to a lawful and valid warrant, a fact conceded by the appellants. At the time of the entry by members of the task force, seven persons were present inside the house. While executing the warrant, agents discovered and confiscated crack cocaine. Roberto White IV and Hill were found inside the premises, arrested, and prosecuted.

Traino testified that he did not direct, sanction, or participate in any assault or battery on the Whites. Traino testified that he did not point a pistol or otherwise threaten any of them. He explained that any handcuffing “was done merely to control Plaintiffs and to secure the scene and to ensure the safety of all persons in the house.”

Traino’s testimony was corroborated by two other officers involved in the drug raid. Sergeant James Price explained that in executing a warrant, drug agents often encounter armed drug dealers and weapons. Price explained that in carrying out a high risk warrant, like the one here, it is standard practice to “handcuff anybody that could be a threat” to ensure the safety of the officers. According to Price, the agents gained entry through a ploy, then entered with their weapons drawn “in a ready position.” Price specifically recalled that White acted “highly upset” and “real irate.” Price testified Traino made repeated efforts to calm White down and to encourage him to remain seated, but he “kept coming up off the couch.”

Agent Dechon Grant, who during the search did not leave the room where White and Dessie White were located, recalled that in order to subdue White, who was “very loud” and “very upset,” he personally had to handcuff him briefly. Dessie White, however, cooperated fully and was not placed in handcuffs. Grant attested that “Captain Traino never restrained [White], he never touched him. I was the only person to handcuff and touch Mr. Roberto WThite.” Grant further testified that he did not point his pistol at anyone and he never saw any agent do so either.

After Traino offered evidence supporting his motion for summary judgment, the Whites could no longer rest on their pleadings but were required to produce specific evidence to demonstrate the existence of disputed material facts. Bob v. Hardy, 222 Ga. App. 550, 554 (4) (474 SE2d 658) (1996). They failed to do so. In fact, their own testimony undermines their tort claims. Dessie White described her husband as “hysterical,” and she testified that he was not handcuffed until after he got up off the floor and refused to be quiet. She confirmed that she was never handcuffed or touched by any of the officers. She testified that she never saw Traino with a pistol and denied sustaining any physical injuries. She also stated that Traino never spoke with her at all that night.

White admitted that Traino neither handcuffed him nor pointed a pistol at him. White conceded that he had not been struck or hit, claiming only “I was manually handled rough and put a knee in my back and forced to the ground.” The only instruction White recalled Traino giving was to check every room.

Kelvin White testified that the only time a pistol was pointed at him was after he heard the shouts of “drug raid” and proceeded from his brother’s bedroom toward the den as the officers were entering. He testified that no one ever put a gun to his head or threatened to hurt or shoot him. Kelvin expressly testified that Captain Traino did not point a gun at him. He estimated that he remained in handcuffs for about eight or ten minutes. He denied being manhandled or threatened. Although claiming his wrists were “kind of scratched up with the marks” because the handcuffs were tight, he did not seek or receive any medical attention.

All three plaintiffs denied knowing that their home was being used to store cocaine and crack cocaine.

All the tort claims at issue allegedly arose during the execution of a lawful search warrant. OCGA § 17-5-28, however, authorizes the detention and search of persons on the premises in certain circumstances:

In the execution of the search warrant the officer executing the same may reasonably detain or search any person in the place at the time:
(1) To protect himself from attack; or
(2) To prevent the disposal or concealment of any instruments, articles, or things particularly described in the search warrant.

False imprisonment requires, among other things, an unlawful detention. OCGA § 51-7-20; Williams v. Smith, 179 Ga. App. 712, 714 (2) (348 SE2d 50) (1986). Here, since the Whites were being detained briefly pending the execution of a lawful search warrant and the securing of the premises, no claim for false imprisonment exists. See Riviera v. State, 190 Ga. App. 823, 825 (1) (380 SE2d 353) (1989). Cocaine, we have noted, is a substance which is easily concealed and may require some time to discover. See id. at 826 (2). As in Riviera, the duration of the search and the detention was reasonable under the circumstances. Id.

While supervising the execution of the search warrant, Traino was exercising a discretionary function. See Bell v. City of Albany, 210 Ga. App. 371, 373, n. 2 (436 SE2d 87) (1993). “Absent evidence of malice, wilfulness, or corruption, a public officer is afforded immunity from liability to those who may be injured by the exercise of his discretion in the performance of his official duties. [Cit.]” McDay v. City of Atlanta, 204 Ga. App. 621, 622 (2) (420 SE2d 75) (1992). Moreover, Traino was entitled to qualified immunity for the use of any physical force provided that such force was “objectively reasonable” under the circumstances. Bell, supra at 375. But here, we need not inquire into the objective reasonableness of Traino’s actions because no evidence was offered that Traino ever used any physical force at all. Compare Gardner v. Rogers, 224 Ga. App. 165, 168 (1) (480 SE2d 217) (1996) (qualified immunity defense inapplicable when officer uses excessive force or engages in brutality).

Further, absent evidence of actual malice, Traino was entitled to immunity for the performance of his official discretionary duties even if performed negligently. Gilbert v. Richardson, 264 Ga. 744, 753 (6) (452 SE2d 476) (1994). In this context, “actual malice” means a deliberate intention to do wrong. Merrow v. Hawkins, 266 Ga. 390, 391 (467 SE2d 336) (1996). Since the record is devoid of any evidence that Traino acted with actual malice in the performance of his duties, he was entitled to summary judgment. Id. at 392 (3); see Adams v. Hazelwood, 271 Ga. 414, 415 (2) (520 SE2d 896) (1999).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

Decided May 26, 2000

Michael E. Garner, for appellants.

Frank K. Martin, Eugene H. Policys, Jr, for appellee.

       Roberto White IV is the adult son of Roberto White III.


text:
    A00A0142.
    HUNTLEY v. THE STATE.
    (535 SE2d 270)
   Barnes, Judge.

Thomas Samuel Huntley appeals his convictions for trafficking in cocaine and possession of a firearm by a convicted felon. After his convictions, he was sentenced to life in prison on the trafficking charge and five years on the other charge to run concurrently with the life sentence. Contending the trial court erred by denying his motions to suppress and for a new trial, Huntley appeals. For the reasons stated below, we affirm Huntley’s convictions.

1. In his motion to suppress, Huntley contended the evidence seized as a result of the execution of the search warrant at his house should have been suppressed because the facts presented to the issuing magistrate did not provide sufficient information to establish probable cause to issue a search warrant. Huntley claims that the significant information to support the warrant came from an unknown informant and the information known to the authorities was not sufficient to establish that the drugs were in his home. We disagree.

At the probable cause hearing, the police officer testified that the informant had always provided reliable information. For example, the officer’s affidavit as well as his testimony at the motion to suppress hearing show that the officer worked with the confidential informant for several weeks on this case, including two controlled buys, and the information provided by the informant was confirmed by actual events. The officer testified that the informant described how a person named Thomas was selling drugs on a particular road, that Thomas used a pager to set up the sales, that Thomas responded promptly to the pages, and that Thomas selected the location where the transaction would take place. The controlled buys from Huntley occurred as the informant said they would, and after the final controlled buy, the informant told the officer that he saw two plastic bags of cocaine in Huntley’s car. Although no such bags were found in the car when the police stopped Huntley, officers found two plastic bags on the side of the road along Huntley’s route of travel where it was likely Huntley had thrown them. The officer also testified that when Huntley was selling drugs two years earlier, drugs were found in Huntley’s home when a search was conducted. When the police stopped Huntley, papers in his car provided his home address. Although the police officer did not know how the informant knew that drugs would be in Huntley’s house, the informant told the officers that Huntley had more cocaine at his home.

When reviewing a trial court’s decision on a motion to suppress, an appellate court’s responsibility is to ensure that a substantial basis supported the decision. We construe the evidence most favorably to upholding the findings and judgment and adopt the trial court’s findings on disputed facts and credibility of the witnesses unless they are clearly erroneous. Further, because the trial court is the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

Further, when:

determining whether probable cause supported issuance of a search warrant, a totality of the circumstances test is employed. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

(Citations and punctuation omitted; emphasis supplied.) Sims v. State, 207 Ga. App. 353, 354 (427 SE2d 842) (1993).

The trial court’s order denying Huntley’s motion to suppress found that using the totality of the circumstances test, the information provided the magistrate through the officer’s affidavit and oral testimony constituted a substantial basis to issue the search warrant for Huntley’s home. The record before us supports that conclusion.

We are satisfied that the information provided to the magistrate was sufficient to establish the informant’s reliability. Consequently, the officer was entitled to rely upon the informant’s statement that more drugs were to be found in Huntley’s house. Moreover, under appropriate circumstances a police officer seeking a search warrant “may reasonably infer that items connected with a crime will be found in a specific location.” Williams v. State, 251 Ga. 749, 795 (8) (b) (ii) (312 SE2d 40) (1983). Accord Duckworth v. State, 246 Ga. 631, 634 (3) (272 SE2d 332) (1980); Murphy v. State, 238 Ga. 725, 727-728 (1) (234 SE2d 911) (1977) (“Under certain circumstances, it is reasonable for a police officer to infer that items will be found in a specific place. ... No more is required than a fair presumption; the probabilities are with the officer’s conclusion.”).

Decided May 26, 2000

Mitchell D. Durham, for appellant.

Patrick H. Head, District Attorney, William M. Clark, Debra H. Bernes, Maria B. Golick, Assistant District Attorneys, for appellee.

In this case, the officer knew that when Huntley previously sold drugs, he kept his supply of drugs in his home and that considering the apparent scope of Huntley’s drug activities, he would have more than the cocaine found in the two bags. Thus, the officer reasonably inferred that more cocaine would be found in Huntley’s home. Murphy v. State, supra, 238 Ga. at 727. As a substantial basis existed for the issuance of the warrant, the trial court did not err by denying the motion to suppress.

2. Huntley also alleges that the trial court erred by not reconsidering its ruling on his suppression motion during the hearing on his motion for new trial. Huntley claims that new evidence allegedly establishes that the police officer who applied for the search warrant made false statements to the issuing magistrate regarding a 1993 search warrant affidavit and, thus, the search warrant in this case was issued without probable cause.

The trial court concluded that the evidence Huntley raised regarding the 1993 affidavit came to light during trial. Huntley neither requested a recess to obtain and examine that earlier affidavit nor asked the court during the trial to reconsider its suppression ruling. Therefore, the trial court declined to reconsider the motion to suppress ruling. “The decision whether to set aside its previous order denying the motion to suppress was within the discretion of the trial court.” Pickens v. State, 225 Ga. App. 792, 796 (1) (484 SE2d 731) (1997). We find no abuse of discretion.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


author: Miller, Judge.

text:
    A00A0240.
    MOODY v. THE STATE.
    (534 SE2d 912)
   Miller, Judge.

Arthur Q. Moody was tried before a jury and found guilty of two counts of armed robbery and two related firearms violations. On appeal, the sole enumeration of error contends the trial court abused its discretion in refusing Moody’s request to appoint substitute counsel or to grant a continuance so Moody could seek alternative representation, as a result of which, Moody was allegedly denied his right to effective assistance of counsel. We affirm.

The crimes were committed on Friday, December 22, 1995. Indictments were handed up February 23, 1996, and Moody was arraigned on April 2, 1996, represented by appointed counsel. Also on April 2, counsel represented Moody in a probation revocation hearing based on his commission of the subsequent offenses alleged in the indictment.

After that revocation hearing, the trial court concluded that a co-defendant identified Moody as one of the participants to the armed robberies, placing him at the scene of the crime. Moody was also identified by both victims and further identified by one victim as the gold-toothed assailant armed with a shotgun. On December 28,1995, Tabitha Height approached police and identified Moody and three others by name as the participants of this armed robbery, stating she had seen them dividing the money on the night of the robbery.

On August 29, 1996, Moody moved to release appointed counsel so he could hire his own lawyer. Moody first claimed counsel “didn’t want to be [his] lawyer. [Counsel] told [Moody] to ask for a motion to get him withdrawn.” In response to direct inquiry by the court, counsel replied, “this is not my motion.” Moody also claimed he never spoke with counsel “until last night when he came [to the jail] and went over a little of the case with [Moody].” The trial court reminded Moody that counsel had participated in the prior probation revocation hearing but allowed counsel to be released with the express admonition that “another attorney will not be appointed free of charge for [Moody].” Rather, Moody must either hire another attorney on his own or else must represent himself, which the court advised against.

When Moody again complained that “yesterday was the first time [Moody] saw [counsel],” the court explained to Moody, “That is not accurate.” The court further stated that counsel had represented Moody effectively and competently at the revocation hearing and noted the trial would be based on the same set of facts. Armed with this knowledge of the State’s case, counsel allegedly told Moody that he was “not being railroaded, and nothing is . . . going to help [Moody’s case],” i.e., it would not be useful to subpoena other witnesses for trial. Moody had no other specifications against his appointed counsel.

On September 16, 1996, Moody appeared pro se and announced he was not ready to represent himself at trial because he was still in the process of seeking a lawyer, waiting to hear from “Legal Aid of the Georgia Bar Association.” The case was continued for one week. On September 23, 1996, when the case was sounded for trial, Moody still had not hired an attorney. He was informed that the trial would go forward with Moody representing himself with the assistance of an appointed attorney at counsel table who would not represent Moody but who was available to lend technical advice concerning the proceedings.

1. As to the contention that the trial court erred in failing to continue the case, the record demonstrates that the case was twice continued: from August 29 to September 16 and again to September 23, 1999. Moody made no additional request for a continuance on the morning of September 23, before participating in the trial. So from the record, it appears that Moody was granted every continuance he requested. Consequently, this portion of the enumeration is not supported by the record.

2. Relying on Heard v. State, Moody contends the trial court abused its discretion in refusing to substitute appointed counsel, arguing the court failed to hold a more in-depth hearing on the substance of Moody’s allegations of a conflict with appointed counsel. We hold that additional inquiry was not warranted.

(a) When appointed counsel stated in his place that the withdrawal motion was “not [his] motion,” counsel effectively denied the allegation that he did not want to be Moody’s lawyer. That was sufficient to dispel any possible concern whether counsel could fulfill his important role to represent Moody zealously within the bounds of the law.

(b) The circumstance that appointed counsel filed no discovery motions seeking access to evidence fails to raise any inference in this case that appointed counsel’s representation fell below any standard of reasonableness, because counsel had essentially seen the State’s entire case at the revocation hearing.

(c) At no time, either in the trial court or on appeal, has Moody ever suggested the name of a helpful witness that counsel refused to subpoena. Consequently, the claim that appointed counsel represented to Moody that there was nothing to be done (to prepare or defend his case) amounts only to counsel’s professional judgment that the case would depend on the credibility of the witnesses, including Height, who recanted under oath her previous statement that she saw Moody and the others dividing the spoils of the armed robbery. This is perfectly acceptable trial strategy and provides no evidence that counsel’s performance was deficient. Consequently, there was no need for any additional in-depth inquiry by the trial court as contemplated by Heard v. State. “If the defendant does not have a good reason for discharging his court-appointed attorney, the trial court does not err in requiring him to choose between representation by that attorney and proceeding pro se.” Here, the circumstances of record authorized the conclusion that Moody waived his right to appointed counsel by demanding the release of his lawyer without good grounds.

Decided May 26, 2000.

Crudup & Hendricks, Lisa M. Mantz, Ninfo & Ledbetter, Paul M. Ledbetter, Jr., for appellant.

Alan A. Cook, District Attorney, for appellee.

Judgment affirmed.

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

       173 Ga. App. 543 (1) (327 SE2d 767) (1985).

       See Robinson v. State, 210 Ga. App. 278, 279-280 (3) (435 SE2d 718) (1993) (failure to file discovery motions not harmful where defense had access to the State’s file via informal cooperation).

        Mack v. State, 242 Ga. App. 256, 258 (2) (c) (529 SE2d 393) (2000).

       Supra, 173 Ga. App. at 544 (1).

       (Citations omitted.) Jefferson v. State, 209 Ga. App. 859, 861 (1) (434 SE2d 814) (1993) (whole court).


author: Ruffin, Judge.

text:
    A00A0287.
    CARTER v. DIGBY.
    (535 SE2d 273)
   Ruffin, Judge.

Charlie Carter sued Leon Digby for injuries allegedly sustained in an automobile-pedestrian collision that occurred on December 3, 1993. On the day of trial, June 16, 1998, after the trial court denied his motion for a continuance, plaintiff’s counsel informed the court of his intent to dismiss the case. Counsel signed a voluntary dismissal that day and served it on defense counsel by mail. The dismissal was not filed with the court, however, until July 9, 1998. On January 11, 1999, Carter filed a renewal action pursuant to OCGA § 9-2-61. Digby moved to dismiss, contending that the action was not filed within the six-month renewal period set forth in the statute. The trial court granted the motion, holding that the six-month period began on June 16, 1998, when plaintiff’s counsel announced his intent to dismiss, rather than on July 9, 1998, when the voluntary dismissal was filed with the court. Because the renewal period begins upon the filing of the written dismissal, we reverse.

OCGA § .9-11-41 (a) states that “an action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case.” OCGA § 9-2-61 (a) provides that:

[w]hen any case has been commenced . . . within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced . . . either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later.

In Swartzel v. Garner, we considered the interrelation between these two statutes under facts very similar to those in the present case. In Swartzel, the plaintiffs counsel moved for a continuance on the day of trial, May 4, 1987. After the trial court denied the motion, counsel announced his intention to dismiss the case. However, counsel never filed a written notice of dismissal. On November 19, 1987, the trial court ordered that the case be dismissed because plaintiffs counsel had orally dismissed the action at the call of the calendar. The court characterized its order as a nunc pro tunc voluntary dismissal by the plaintiff, effective May 4, 1987. The plaintiff filed a renewal action within six months of the November 19 order. The trial court granted defendant’s motion to dismiss, holding that its nunc pro tunc order was simply a “housekeeping procedure,” and that the dismissal related back to May 4.

We reversed, holding that the November 19 order constituted an involuntary dismissal by the trial court effective that date, and not a voluntary dismissal by the plaintiff effective May 4. We noted that, under OCGA § 9-11-41 (a), a plaintiff may voluntarily dismiss an action “by filing a written notice of dismissal.” Thus, we held, “written notice filed by the plaintiff is required to effectuate the voluntary dismissal of an action.” Because the plaintiff never filed a written notice of dismissal, no voluntary dismissal ever occurred. Although the trial court had the power to involuntarily dismiss the plaintiff’s case, it could not use a nunc pro tunc order to retroactively effect a voluntary dismissal by the plaintiff.

Swartzel thus stands squarely for the proposition that, even though a plaintiff announces in open court his intent to voluntarily dismiss a case, no voluntary dismissal occurs until the plaintiff actually files a written notice thereof. In this case, it is undisputed that the written notice was not filed until July 9, 1998. Accordingly, the case was not voluntarily dismissed until that date. Although Digby notes that Carter served Digby’s counsel with a copy of the notice of dismissal before July 9, the statute states that dismissal occurs upon the “filing” of the written notice, and Digby cites no authority for the proposition that the filing date of a pleading relates back to the date it was served on opposing counsel.

Decided May 26, 2000.

Morriss, Lober & Dobson, Bruce F. Morriss, William G. Dobson, Daniel Shim, for appellant.

Lawson & Priebe, Jason K. Priebe, Bonne K. Cole, for appellee.

The trial court, in its order, held that Carter was estopped from relying on the July 9 filing date because of Digby’s “reasonable reliance . . . that the case had been dismissed on June 16, 1998.” Even assuming that an estoppel analysis is appropriate in this type situation, it is not clear how Digby “relied” on the fact that the case had been dismissed on June 16 rather than July 9. In any event, given the clear holding in Swartzel that a voluntary dismissal is ineffective until written notice is filed, it is difficult to see how a defendant could reasonably rely upon anything other than proof that the dismissal has in fact been filed with the court on a particular date. This is especially true given the relative ease with which a party can confirm that a pleading has been filed with the court.

Because the notice of dismissal was not filed until July 9, 1998, the six-month renewal period did not begin until that date. Accordingly, the trial court erred in granting Digby’s motion to dismiss.

Judgment reversed.

Ellington, J., concurs. Andrews, P. J, concurs in the judgment only.

       As the trial court acknowledged, if the six-month period began on July 9, 1998, the January 11,1999 filing of the renewal action would have been timely, since January 9,1999, fell on a Saturday.

       Digbyh motion to dismiss this appeal due to Carter’s late filing of his enumeration and brief is denied. See OCGA § 5-6-48 (b); Val Preda Motors v. Nat. Uniform Svc. 195 Ga. App. 443, 444 (1) (393 SE2d 728) (1990).

       193 Ga. App. 267 (387 SE2d 359) (1989).

       Id.

       Id.

       Id. at 267-268.

       Compare Jones v. Jones, 230 Ga. 738, 740 (2) (199 SE2d 239) (1973) (stating that complaint is voluntarily dismissed “as of the date of filing,” but only if opposing party is served or has actual notice).

       See Allstate Ins. Co. v. Sapp, 223 Ga. App. 443, 445 (477 SE2d 869) (1996) ("Estoppel requires justifiable reliance on the opposing party’s representations or conduct and a change in position to one’s detriment.”); Adler’s Package Shop v. Parker, 190 Ga. App. 68, 73 (2) (378 SE2d 323) (1989) (“doctrine of estoppel . . . applies only where the representations of one party cause another to act in reliance thereon to the latter’s detriment”).


text:
    A00A0342.
    SALTERS v. THE STATE.
    (535 SE2d 278)
   Miller, Judge.

A jury found Perry Wayne Salters guilty of interference with government property and attempted escape with a dangerous weapon. On appeal, he enumerates as error the denial of a directed verdict as to the attempt charge and the denial of his motion for mistrial based upon the State’s comments during closing argument. We affirm.

1. Count 2 of the indictment alleged that Salters and his co-defendant, being lawfully in pretrial confinement, did take a substantial overt step toward escaping while armed with a dangerous weapon, namely a sharpened piece of metal, by gouging a hole in the detention center wall. In support of his motion for directed verdict, Salters argues there was no evidence that he used the tools described by the State to be dangerous weapons. The standard of review is the same for the denial of a motion for directed verdict of acquittal as it is for the sufficiency of the evidence. That is, we view the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found guilt beyond a reasonable doubt.

The evidence reveals that around 1:30 a.m., guards at the Cherokee County Adult Detention Center heard a scratching noise coming from one of the jail’s pods. Inside, they found a deep hole in the wall, partially obscured by a chair, between the bunks occupied by Salters and a co-defendant. They also found two small, sharp metal objects shaped like an arrowhead, one hidden in a cereal box in the corner of Salters’s bunk and another, hidden with a bolt used as a handle, behind a cooler.

Guards removed the twelve inmates from the pod and questioned each one about the incident. Inmate Christopher Howard testified that Salters and his co-defendant took turns scraping the hole in the wall and that the two and one other inmate had talked about escaping two days prior to the discovery by guards. He further testified that he saw Salters drop the bolt behind the cooler as officers entered the pod to investigate. A second inmate testified, however, that it was Howard who scraped out the hole, causing dust to fall on the inmate’s bunk, and that Howard tried to conceal his actions by hanging a blanket over the bunk. A third inmate testified that Howard was in the back near the wall prior to the discovery, but that he did not know who chipped the hole in the wall.

Although there is conflicting testimony, the credibility of witnesses and the weight given their testimony are questions for the trier of fact, and it is not for this court to determine how the jury resolved conflicts in the evidence. Here, Howard’s testimony implicating Salters was corroborated by the discovery of the sharp arrowhead concealed in the cereal box in the corner of Salters’s bunk. Thus, there was sufficient testimony for a rational trier of fact to find that Salters took a substantial step toward the commission of the crime of escape and that the criminal attempt to escape was aggravated because Salters was armed with a dangerous weapon. The trial court properly denied the motion for a directed verdict.

2. Salters contends that the State made improper comments during closing argument about Salters’s failure to testify. The prosecutor stated:

In opening statements you were made some promises by the Defense. You were told that this was a jail that couldn’t be broken out of anyway. That you’d hear evidence that there were bars and there were this and that and there was the other, and that you couldn’t actually dig your way out of this jail. Think about the testimony you heard. One deputy was asked how he would make it if he did make it. You have no testimony about the construction of our jail. You have no evidence that it couldn’t be broken out of. You’re also told that you’d hear testimony that Perry Salters had experience in construction and that he knew it that he wouldn’t be so foolish as to try to break out because not only was he familiar with construction, but he was familiar with the construction in our jail and that he would never be so stupid as to try to break out. There is no evidence of that, Ladies and Gentlemen. You never heard it. You never heard that.

Salters objected and moved for mistrial, but the prosecutor explained that she was not commenting on the fact that Salters failed to testify but was only emphasizing that “[the jury and parties] heard no testimony.”

Under the test set forth in United States v. Rochan,

reversal for improper prosecutorial conduct requires a finding that (1) the prosecutor’s manifest intention was to comment upon the accused’s failure to testify or (2) the comment was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.

Decided May 26, 2000.

Wallace W. Rogers, Jr., for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Philip F. Monte III, Assistant District Attorneys, for appellee.

Although the better practice clearly is not to refer to the defendant by name, standing alone this is not controlling. In context, the statements by prosecuting counsel were not an impermissible reference to Salters’s failure to testify but a response to argument made in the defense’s opening statement claiming the proof of certain evidence. In closing, the prosecution argued that the defense failed to present the evidence promised. The prosecution never mentioned that Salters personally did not testify, and the evidence the defense promised did not necessarily have to come from Salters personally. Thus, in our view, the statements did not reflect a “manifest intention” to comment on Salters’s failure to testify, nor do we find that the comments were such that a jury “would naturally and necessarily” find them to be so.

Judgment affirmed.

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

        Stewart v. State, 240 Ga. App. 375, 376 (523 SE2d 592) (1999).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Davis v. State, 223 Ga. App. 346, 347 (1) (477 SE2d 639) (1996).

       See OCGA § 16-4-1. Under OCGA § 16-10-52 (a) (2), a person commits the offense of escape when he, “[b]eing in lawful custody or lawful confinement prior to conviction, intentionally escapes from such custody or confinement. . . .” OCGA § 16-10-52 (b) makes the offense a felony if committed while armed with a dangerous weapon.

       Although Salters does not directly argue that the metal objects are not dangerous weapons, we point out that the jury makes the determination as to whether the object is in fact dangerous. See Baird v. State, 201 Ga. App. 378 (411 SE2d 332) (1991).

       563 F2d 1246 (5th Cir. 1977).

       (Citations and punctuation omitted.) Lobdell v. State, 256 Ga. 769, 774-775 (10) (353 SE2d 799) (1987).

       See Martin v. State, 193 Ga. App. 581, 586 (4) (388 SE2d 420) (1989).

       Cf. Crowe v. State, 265 Ga. 582, 593 (18) (e) (458 SE2d 799) (1995); Lobdell, supra, 256 Ga. at 774-775 (10).

       See Martin v. State, supra, 193 Ga. App. at 586 (4); Ward v. State, 262 Ga. 293, 296 (6) (a) (417 SE2d 130) (1992) (closing argument “make them explain” was neither burden-shifting nor an impermissible reference to-the defendant’s failure to testify); see also McGee v. State, 260 Ga. 178, 179 (4) (b) (391 SE2d 400) (1990).


text:
    A00A0394.
    PATTERSON v. THE STATE.
    (535 SE2d 269)
   Smith, Judge.

Travis Montoya Patterson was convicted of possession of cocaine, misdemeanor obstruction of an officer, and misdemeanor possession of marijuana. On appeal, Patterson asserts two errors, both of which contest the sufficiency of the evidence. Having reviewed the record, we find no merit to either claim, and we affirm.

On appeal, the evidence must be viewed in a light most favorable to the verdict, and Patterson no longer enjoys the presumption of innocence. Pollard v. State, 230 Ga. App. 159 (495 SE2d 629) (1998). The evidence, when viewed in that manner, established that after receiving numerous complaints of drug activity occurring behind a business, Speed’s Game Room, police began conducting surveillance. Shortly after midnight, investigators observed four males gather under a streetlight and participate in an apparent drug transaction. Sergeant J. D. Yeager, who overheard part of the conversation among these individuals, testified that after co-defendant Moore asked Patterson for a “twenty,” Patterson reached into his pocket and handed something to Moore. When Investigator Ivan Davis saw Patterson reach into his pocket and extract something, he and his fellow officers quickly emerged from behind some bushes and trees and displaying their badges, they yelled, “Police, stop.” The group instead immediately dispersed in multiple directions. Despite Davis’s command to stop, Patterson ran right past him. Davis testified that Patterson looked at him for a brief second then ran.

Officer Todd Pitchford, in uniform and wearing a reflective vest lettered “Police,” chased Patterson, lagging 10-15 feet behind him. Pitchford saw Patterson reach into his left coat pocket and toss away several bags containing a “sparkly” white powder. Pitchford elected to guard the suspected contraband rather than to continue in pursuit. Pitchford found several bags of the white powder on the ground and “numerous” bags in the bushes nearby. Davis testified that in his opinion, this cocaine, packaged in small individual bags, was intended “for either distribution or sale.”

Investigator Louis Ortiz caught up with Patterson as he crossed a road. While searching Patterson incident to his arrest, police found a small amount of marijuana in Patterson’s coat pocket, two beepers, and $73 in cash. On the ground next to Patterson’s co-defendant, Moore, police discovered additional cocaine.

1. Patterson contends the evidence was insufficient to sustain his conviction for possession of cocaine.

The State’s evidence showed that Patterson directly participated in a drug exchange and then discarded packets of cocaine while being pursued immediately thereafter by police. This evidence was sufficient within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to authorize a finding beyond a reasonable doubt that Patterson possessed cocaine. Lester v. State, 226 Ga. App. 373, 377 (3) (487 SE2d 25) (1997); see Stewart v. State, 230 Ga. App. 325 (496 SE2d 329) (1998); Lewis v. State, 186 Ga. App. 349, 350-351 (1) (a) (367 SE2d 123) (1988).

2. Patterson contends the evidence was insufficient to sustain his conviction for misdemeanor obstruction of an officer. Although conceding that he fled, Patterson testified that he did not realize the men pursuing him were police officers and that he ran because he was afraid. Patterson denied hearing anyone yell, “Police,” or order him to stop.

Decided May 26, 2000.

Ronald L. Beckstrom, for appellant.

J. David Miller, District Attorney, James B. Threlkeld, Assistant District Attorney, for appellee.

Misdemeanor obstruction consists of knowingly and wilfully obstructing or hindering any law enforcement officer in the lawful discharge of his duties. OCGA § 16-10-24 (a); see generally Tankersley v. State, 155 Ga. App. 917, 919 (4) (A) (273 SE2d 862) (1980). “Flight after a lawful command to halt constitutes obstruction of an officer. [Cit.]” Sprinkles v. State, 227 Ga. App. 112, 113 (1) (488 SE2d 492) (1997).

Davis testified that after the officers identified themselves and after he expressly commanded Patterson to stop, Patterson looked directly at him before running away. Pitchford, separated by a mere 10-15 feet from Patterson, was in full uniform and wearing a police reflective vest while chasing Patterson. A rational trier of fact could have found the essential elements of this crime beyond a reasonable doubt. See Tankersley, supra; Dixon v. State, 154 Ga. App. 828, 829 (4) (269 SE2d 909) (1988).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.


text:
    A00A0403.
    WILSON v. THE STATE.
    (534 SE2d 910)
   Miller, Judge.

Robert B. Wilson was charged in a special presentment with felony “Abandonment of Child,” in that, between 1994 and 1998, he allegedly abandoned his two minor daughters “by leaving the said children in a dependent condition after leaving the [S]tate of Georgia. . . .” Following a bench trial he was found guilty and received a three-year sentence, the maximum authorized by OCGA § 19-10-1 (b). In two related enumerations of error, Wilson argues there is no evidence that his children were in a dependent condition and no evidence that he abandoned them in Georgia for felony sentencing purposes. Since the evidence shows only misdemeanor abandonment, we affirm the judgment of conviction but vacate the felony sentence and remand for resentencing.

Viewed in the light most favorable to the trial court’s judgment, the record shows the parties stipulated that defendant and his former wife were divorced in a 1990 New Jersey proceeding in which the final order required defendant to pay $2,000 per month child support for his two minor daughters. Defendant failed to meet this obligation and was in arrears. It was further stipulated that defendant “has never physically been in the State of Georgia.” Other evidence showed that in 1992, Wilson had been ordered to pay $35,100 in child support and alimony arrears. The New Jersey chancellor further ordered that all matters concerning the divorce, including child support, “be transferred to the jurisdiction of Georgia] where the [mother] has resided with the infant children ... for over one (1) year. ...”

Wilson’s former wife, Arlene Wilson, was the only witness. In 1991, she moved to Georgia with her two minor daughters, who were then ages five and six. Arlene Wilson had no means of supporting her daughters, possessed no assets (except the 20$ defendant left her with), and had to accept public assistance for housing, welfare or Aid to Families with Dependent Children, plus help from her parents, to survive. Arlene Wilson was unable to work because “the [Federal Bureau of Investigation], [the] Internal Revenue [Service] criminal division, [and] many courts [were] subpoenaing [her].” Of the $2,000 per month court-ordered child support, defendant made a payment only “[o]ne time under duress,” of approximately $8,000. This was to purge himself of contempt for being $31,000 in arrears. Thereafter, defendant made periodic payments but stopped after paying a total of $18,000.

Arlene Wilson obtained a Texas judgment against defendant enforcing the New Jersey support order, but he paid only $2,000. To settle subsequent legal action, defendant deeded his Texas residence to Arlene Wilson, but because of liens attached to the real property, she cleared less than $30,000, while recouping an additional $5,000 from the sale of personal property. After giving defendant credit for the $53,000 she was able to collect, Arlene Wilson calculated she was still owed approximately $180,000 in back child support. In her opinion, the amounts defendant did pay were not sufficient to provide for the support of his two daughters.

1. A child abandoned by its father shall be considered to be in a dependent condition when the father “does not furnish sufficient food, clothing, or shelter for the needs of the child.” Thus,

There are two elements in the offense of abandonment of child: (a) desertion, that is, the wilful forsaking and desertion of the duties of parenthood; [and] (b) dependency, that is, leaving such child in a dependent condition. Both elements must be present to complete the offense.

After his divorce, defendant’s parental duty consisted of child support. Proof that he substantially and persistently failed to comply with that support obligation is sufficient to authorize a finding of wilful abandonment. Proof that the mother was forced to rely on public assistance for housing and family assistance plus public Aid to Families with Dependent Children to support the minor daughters is sufficient to authorize the trial court’s conclusion that the children were dependent for necessities under OCGA § 19-10-1 (a) because of defendant’s abandonment.

2. OCGA § 19-10-1 (b) makes child abandonment a misdemeanor unless the parent abandons the child in Georgia “and leaves this [S]tate,” or abandons the child in Georgia “after leaving this [S]tate,” in which cases the abandonment is punished as a felony. Defendant contends the trial court erred in sentencing him as a felon. We agree.

Just as no man can be heir to the living, no man can leave this State unless he has first been in this State. OCGA § 19-10-1, making child abandonment a crime, is both in derogation of the common law and penal in nature, and if judicial construction is authorized, the statute must be strictly construed. No construction of the phrases “leaves this [S]tate” or “after leaving this [S]tate . . .” is even necessary. When words are given their ordinary signification, the felony of leaving this State in the course of abandoning dependent children first requires the actual physical presence of the accused. The parties are bound by their stipulation that Wilson was never physically in the State of Georgia. We vacate the unauthorized felony sentence and remand the case with direction to resentence Wilson as a misdemeanant.

Decided May 26, 2000.

David L. Whitman, for appellant.

Robert B. Wilson, pro se.

Daniel J. Porter, District Attorney, for appellee.

Judgment of conviction affirmed.

Sentence vacated and case remanded with direction. Pope, P. J., and Smith, P. J., concur.

       OCGA § 19-10-1 (a).

       (Citations and punctuation omitted.) Fairbanks v. State, 105 Ga. App. 27, 29 (123 SE2d 319) (1961).

        Ozburn v. State, 79 Ga. App. 823, 824-825 (b) (54 SE2d 376) (1949), applying King v. State, 12 Ga. App. 482 (2) (77 SE 651) (1913).

        Dyer v. State, 87 Ga. App. 440, 442 (2) (74 SE2d 129) (1953).

        “Nemo est haeres viventis — no one can be heir during the life of his ancestor — is the familiar maxim of the Common Law.” Beall v. Beall, 8 Ga. 210, 222-223 (11) (1850).

        Mangum v. State, 91 Ga. App. 520, 521 (86 SE2d 365) (1955), legislatively overruled in part by Ga. L. 1956, p. 800, to include abandonment of illegitimate children. See Pasley v. State, 215 Ga. 768, 770 (2) (113 SE2d 454) (1960).

       OCGA § 1-3-1 (b).

       See Weltzbarker v. State, 89 Ga. App. 765, 767 (81 SE2d 301) (1954) (where wife moved children from Florida to Georgia, error to refuse instruction that “ ‘if you find further that the defendant never came to [Georgia] and again assumed the duty of supporting them in .. . Georgia, then . . . the court would not have jurisdiction, and a verdict of not guilty is demanded. . . .’ ”). Accord Mallory v. State, 225 Ga. App. 418, 419 (483 SE2d 907) (1997) (defendant visited his family in DeKalb County and then abandoned them).

       See, e.g., Crawford v. Crump, 223 Ga. App. 119, 122 (2) (476 SE2d 855) (1996).

       See Denson v. State, 240 Ga. App. 207, 208 (2) (523 SE2d 62) (1999).


text:
    A00A0539.
    APREA v. COBB.
    (535 SE2d 268)
   Miller, Judge.

A jury awarded Wayne Cobb $12,312.71 in damages in a lawsuit arising out of a dispute involving Cobb’s repairs to Mineo Aprea’s automobile. On appeal Aprea enumerates as error the denial of his motions for directed verdict and for judgment notwithstanding the verdict. The trial was not transcribed, and the parties could not agree on a proposed transcript. The trial court did not certify either party’s summary of the testimony and was unable to recall the details of the case. “Accordingly, in the absence of either a transcript or an agreed statement of the events at trial ... , we must presume the trial judge ruled correctly on all issues presented and that the evidence was sufficient to support the judgment.” Because Aprea’s enumerations of error require consideration of the evidence and there is no transcript, we are unable to consider the merits of his claim and must affirm.

Judgment affirmed.

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

Decided May 26, 2000.

Macklyn A. Smith, for appellant.

David M. Simpson, for appellee.

       See OCGA § 5-6-41 (g) (“[i]n case of the inability of the parties to agree as to the correctness of such transcript, the decision of the trial judge thereon shall be final and not subject to review; and, if the trial judge is unable to recall what transpired, the judge shall enter an order stating that fact.”).

       (Citations and punctuation omitted.) Hixson v. Hickson, 236 Ga. App. 894, 895 (1) (512 SE2d 648) (1999).

       See Foster v. Housing Auth. of Columbus, 146 Ga. App. 12 (245 SE2d 349) (1978).


text:
    A00A0622, A00A0623.
    ASHMAN et al. v. MARSHALL’S OF MA, INC. et al.; and vice versa.
    (535 SE2d 265)
   Miller, Judge.

Lindsay Ashman sued Marshall’s of MA, Inc. and an off-duty police officer it employed, Gary Broom, for intentional infliction of emotional distress for statements Broom made as Ashman and her friend Casey Harris exited a Marshall’s store. The trial court granted summary judgment to both Marshall’s and Broom on the ground that the statements did not rise to the level of outrageousness necessary to support the claim. The court denied Marshall’s motion for summary judgment which had asserted that Broom’s statements were made outside the scope of his duty as an in-store security guard. In Case No. A00A0622, Ashman appeals the grant of summary judgment to Marshall’s and Broom; in Case No. A00A0623, Marshall’s cross-appeals the denial of summary judgment on the alternative ground.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. “We review the grant or denial of a motion for summary judgment de novo, construing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmovant.”

Viewed in the light most favorable to Ashman, the evidence authorizes the following facts. Ashman and her friend Harris exited a Marshall’s store and walked toward their automobile. Ashman suffers from ataxia as a result of a car accident, which causes her to have a shaky and unbalanced stride. As Ashman approached her car, she stopped and wobbled in her walk. She unlocked the car from the passenger side and got in. In the parking lot uniformed off-duty Police Officer Broom observed Ashman and Harris and approached. Broom asked Harris, “Hey partner! What’s going on here,” pointing to Ashman, and Harris explained that she had been in a car accident. When Harris tried to explain Ashman’s ailment to Broom, he responded “don’t feed me that sh — .” Ashman, then sitting in the passenger side of the car, leaned over to open the door for Harris and waved her handicapped parking permit so that Broom could see it. When Ashman displayed the permit, Broom responded, “Hah man, she is all ‘fu— up.’ ” Broom then stated, “you’ve got to understand where I’m coming from,” and walked away.

Ashman cried for most of the evening following the incident and instead of going to the mountains as planned, she instructed Harris to drive her home. She suffered damage to her self-esteem, was embarrassed and humiliated, and had difficulty interacting socially. The experience has also hindered her ability to improve her limp.

Case No. A00A0622

1. Ashman contends that because Broom continued to use obscene language even though informed of her condition, this conduct was sufficiently extreme and outrageous to withstand summary judgment. The appellees argue that Broom’s conduct does not rise to the requisite level of outrageousness to sustain a cause of action for intentional infliction of emotional distress.

To prevail on a claim for intentional infliction of emotional distress, Ashman must demonstrate the following: (a) the conduct giving rise to the claim was intentional or reckless, (b) the conduct was extreme and outrageous, (c) the conduct caused the emotional distress, and (d) the emotional distress was severe. Whether the alleged conduct is sufficiently extreme or outrageous is a question of law for the trial court.

The rule of thumb in determining whether the conduct complained of was sufficiently extreme and outrageous is whether the recitation of the facts to an average member of the community would arouse her resentment against the defendant so that she would exclaim “Outrageous!”

Actionable conduct does not include insults, threats, indignities, annoyances, petty oppressions, or other vicissitudes of daily living but must go beyond all reasonable bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community. Factors include the existence of a relationship in which one person has control over another, the actor’s awareness of the victim’s particular susceptibility, and the severity of the resultant harm. In all events, “major outrage in the language or conduct complained of is essential to the tort.”

Decided May 26, 2000.

Broom was satisfied with the explanation of Ashman’s movement after he was shown the handicapped parking permit. Assuming he then stated, “she is all fu— up,” and “you’ve got to understand where I’m coming from,” we conclude these crass statements simply do not rise to the requisite level of major outrage.

Emotional distress inflicted by another is not an uncommon condition and includes all highly unpleasant mental reactions such as horror, fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. Although Broom’s statements were harsh, inappropriate, rude, vulgar, and unkind, we are constrained to find that his conduct does not meet the threshold of outrageousness and egregiousness necessary to sustain a claim for intentional infliction of emotional distress. “[M]ere tasteless, rude or insulting social conduct will not give rise to such a claim.” Thus, the court did not err in granting summary judgment to both Marshall’s and Broom.

Case No. A00A0623

2. Marshall’s asserts that the trial court erred in denying its motion for summary judgment on the ground that Broom made the statements outside the scope of his duty as an in-store security guard. In light of our holding in Case No. A00A0622, the cross-appeal in Case No. A00A0623 is moot.

Judgment affirmed in Case No. A00A0622. Appeal dismissed in Case No. A00A0623.

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

Louis Levenson, for appellants.

Webb, Carlock, Copeland, Sender & Stair, Edward A. Miller, Jerome B. McNally, Serena L. Sparks, Rory K. Starkey, Karen E. Woodward, for appellees.

       OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       (Citation omitted.) Bell v. Sasser, 238 Ga. App. 843, 844 (520 SE2d 287) (1999); see McCoy v. Winn Dixie Stores, 238 Ga. App. 543 (519 SE2d 689) (1999).

        United Parcel Svc. v. Moore, 238 Ga. App. 376, 377 (519 SE2d 15) (1999); Trimble v. Circuit City Stores, 220 Ga. App. 498, 499 (469 SE2d 776) (1996); Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (1) (335 SE2d 445) (1985).

         Trimble, supra, 220 Ga. App. at 499; Bridges, supra, 176 Ga. App. at 230.

       (Citation omitted.) Moore, supra, 238 Ga. App. at 377.

       Id.; Peoples v. Guthrie, 199 Ga. App. 119, 121 (2) (404 SE2d 442) (1991).

        Trimble, supra, 220 Ga. App. at 499-500.

       (Citation and punctuation omitted.) Gordon v. Frost, 193 Ga. App. 517, 522 (388 SE2d 362) (1989); accord Jarrard v. United Parcel Svc., 242 Ga. App. 58, 61 (529 SE2d 144) (2000).

        Peoples, supra, 199 Ga. App. at 121 (2).

       See Sossenko v. Michelin Tire Corp., 172 Ga. App. 771, 773 (324 SE2d 593) (1984); compare Sevcech v. Ingles Markets, 222 Ga. App. 221, 224 (474 SE2d 4) (1996) (jury issue on outrageousness where store patron was accused of shoplifting and assaulted and battered by store employee); Trimble, supra, 220 Ga. App. at 502 (supervisor’s sexual harassment of employee including lewd statements reached necessary level of outrageousness).

       (Citation and punctuation omitted.) Troncalli v. Jones, 237 Ga. App. 10, 15 (3) (514 SE2d 478) (1999); see Hendrix v. Phillips, 207 Ga. App. 394, 395 (1) (428 SE2d 91) (1993).

       OCGA § 5-6-48 (b) (3); Kubler v. Goerg, 197 Ga. App. 667, 671 (5) (339 SE2d 229) (1990).


text:
    A00A0729.
    CUNNINGHAM v. THE STATE.
    (535 SE2d 262)
   Miller, Judge.

The questions on appeal are threefold: (1) whether the trial court abused its discretion in denying a motion for continuance where the defendant had substituted new counsel shortly before trial and where this new counsel had difficulty in obtaining transcripts of the completed trial of co-indictees; (2) whether defendant could first consent to the admission of the co-indictees’ statements and convictions (as part of a trial strategy of blaming the co-indictees for the crimes) and then argue on appeal that such evidence should not have been admitted; and (3) whether this unsuccessful trial strategy demanded a finding that defendant received ineffective assistance of counsel. We answer each question in the negative and affirm.

Construed in favor of the verdict, the evidence showed that in June 1995 William Cunningham and two other men surrounded the victim in an apartment complex parking lot as she was transferring suitcases from her car to her boyfriend’s truck. Cunningham brandished a gun and demanded her money, which he and the others took along with her jewelry and other personal property. Realizing that a neighbor was witnessing the robbery, Cunningham demanded her car keys, forced her into the back seat of her car with him at her side, and had one of the other men drive the car away with the remaining man seated in front. Cunningham forced the victim at gunpoint to perform oral sex on him and to disrobe, whereupon he placed her on his lap and partially penetrated her. Cunningham then forced her into the trunk, from which she later escaped (with injury) after unlatching the lock.

When police later found the other two men in possession of the stolen vehicle, they confessed to the material facts with the exception of the sexual assaults, with only one implicating Cunningham as attempting the rape. When arrested, Cunningham also confessed to the armed robbery, the kidnapping, and the carjacking but denied any sexual assaults.

Tried separately from Cunningham in November 1995, the other two men were convicted of kidnapping with bodily injury, armed robbery, hijacking a motor vehicle, aggravated sodomy, and rape. After Cunningham’s trial in January 1996 in which he was convicted of the same charges, he moved for a new trial on various grounds, including ineffective assistance of counsel. The court denied the motion, and he appeals.

1. Cunningham first complains that the court erred in denying a motion for a continuance. The record reflects that Cunningham’s first counsel appeared for him in June 1995 and engaged in extensive discovery. Three times Cunningham’s case was placed on the trial calendar, and three times it was continued. Three weeks prior to the fourth trial date in January 1996, Cunningham discharged his counsel and hired new counsel, who immediately moved for a continuance on the grounds that she needed more time to prepare and that she had been unsuccessful in obtaining the trial transcript from the November trial of the two co-indictees. On the morning of trial the court held a hearing on the motion, at which time the new counsel admitted that for the most part she was ready and that in the last two weeks she had not spoken to the court reporter regarding the desired transcript. The court denied the motion.

Whether to grant a motion to continue is entirely within the sound legal discretion of the trial court. Unless it clearly appears that the trial court abused that discretion, we will not disturb the denial of a continuance sought on the ground defendant’s new counsel had insufficient time to prepare. Even though the new attorney may have only two weeks to prepare, denying a continuance is not an abuse of discretion, particularly where the short time period arises from defendant’s voluntary decision to substitute new counsel. We discern no abuse here.

Nor do we find the denial of a continuance to be an abuse of discretion where the basis for the continuance is the lack of a transcript, unless defendant has shown due diligence in obtaining the transcript. Here, there was no showing that the first counsel had sought the transcript, and the new counsel made only a single request for the transcript with no follow-up in the two weeks before trial.

Moreover, even if Cunningham and his counsel had been diligent, Cunningham made no effort (even post-conviction) to demonstrate specifically how the transcript would have helped his examinations at trial or otherwise assisted in his defense. Absent such a showing, there is no reversible error.

2. Cunningham next contends that the court erred in allowing the State to introduce custodial statements by his co-indictees regarding Cunningham’s participation in the crimes and to introduce proof that these co-indictees had been convicted of the same crimes with which Cunningham was charged. Citing Price v. State, Boatwright v. State, and Mindock v. State, he concedes that this evidence was admitted without objection yet argues that it should be reviewed under the “plain error” doctrine.

As part of his conscious trial strategy of denying the sexual assaults or shifting blame to the co-indictees, Cunningham specifically requested that these two co-indictees be available to testify as witnesses. Out of an abundance of caution, the State asked whether Cunningham’s counsel would be discussing that testimony in her opening statement and, if so, whether she would have any objection to the State referencing the confessions or convictions of the coindictees in its opening statement. The judge cautioned Cunningham’s counsel that the State would not be allowed to discuss such unless she agreed. Counsel responded that she intended to build on what the co-indictees had already said and therefore had no objection to the State referencing their confessions or their convictions. In opening statement, Cunningham’s counsel referenced the content of their confessions and later indicated to the court that she intended to introduce the videotapes of those confessions if the co-indictees did not testify.

During its case-in-chief, the State put on testimony as to the statements of the co-indictees that Cunningham was the one in the back seat with the victim (a fact admitted by Cunningham) and the statement of one co-indictee that Cunningham tried to penetrate her. The State also elicited without objection testimony that the coindictees had been convicted of the same charges and therefore had no motive to lie, as that implicated them also. Having invited this testimony at every turn, Cunningham eventually chose to present no evidence.

On appeal, Cunningham reverses field, now claiming that the trial court should have ignored Cunningham’s express acquiescence and should have forbidden the State from introducing the coindictees’ statements and convictions. “A party may not complain on appeal of a ruling that he contributed to or acquiesced in by his own action, trial strategy, or conduct.” Specific acquiescence to the introduction of certain objectionable evidence precludes reversal and a new trial on this ground.

Decided May 26, 2000.

Jeffrey P. Manciagli, for appellant.

David McDade, District Attorney, for appellee.

3. Arguing that this trial strategy of allowing in the statements and convictions of the co-indictees was fatally flawed, Cunningham claims that he received ineffective assistance of counsel. “[T]actical errors do not constitute ineffective assistance.” Absent evidence to the contrary, the decision not to object to certain evidence is presumed strategic and provides no valid basis for an ineffective assistance claim.

Judgment affirmed.

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

       OCGA § 17-8-22.

        Holder v. State, 242 Ga. App. 479, 483 (7) (529 SE2d 907) (2000).

        Judge v. State, 240 Ga. App. 541, 543 (2) (524 SE2d 4) (1999); see also Corbin v. State, 212 Ga. 231 (1) (91 SE2d 764) (1956).

       See Bearden v. State, 241 Ga. App. 842, 844-845 (3) (528 SE2d 275) (2000); Judge, supra, 240 Ga. App. at 543 (2).

        Moreland v. State, 213 Ga. App. 75, 76 (2) (443 SE2d 701) (1994); cf. Kier v. State, 240 Ga. App. 152, 153 (525 SE2d 102) (1999).

       See Bearden, supra, 241 Ga. App. at 844 (3) (“[t]he party requesting the continuance must show that he exercised due diligence”) (footnote omitted); compare Coaxum v. State, 146 Ga. App. 370, 371 (4) (246 SE2d 403) (1978) (counsel made repeated requests over a one-year period for transcripts).

        Beene v. State, 202 Ga. App. 857 (1) (415 SE2d 545) (1992); Gann v. State, 190 Ga. App. 82, 85-87 (3) (378 SE2d 369) (1989).

       239 Ga. 439, 442 (2) (238 SE2d 24) (1977).

       193 Ga. App. 141, 142 (2) (387 SE2d 386) (1989).

       187 Ga. App. 508 (2) (370 SE2d 670) (1988).

       (Footnote omitted.) Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997); see Maxwell v. State, 233 Ga. App. 419, 423 (4) (b) (503 SE2d 668) (1998) (“[i]t is a well-settled appellate rule that one cannot complain about a ruling of the trial court which the party’s own trial tactics or conduct procured or aided in causing. [Cit.]”).

        Brady v. State, 270 Ga. 574, 579 (5) (b) (513 SE2d 199) (1999); see Williams v. State, 119 Ga. 425 (2) (46 SE 626) (1904).

       (Citation omitted.) Scott v. State, 234 Ga. App. 378, 379 (2) (506 SE2d 880) (1998); see Wallace v. State, 238 Ga. App. 69, 70 (2) (517 SE2d 801) (1999) (“trial tactics or strategy does not constitute ineffectiveness. [Cit.]”).

       Cunningham chose not to call his trial counsel to testify.

        Hamilton v. State, 238 Ga. App. 320, 322 (3) (517 SE2d 118) (1999); see Thomas v. State, 268 Ga. 135, 139 (12) (485 SE2d 783) (1997).


author: Andrews, Presiding Judge.

text:
    A00A0132.
    A00A0133, A00A0751.
    ALFORD v. THE STATE. HARTMAN v. THE STATE (two cases).
    (534 SE2d 103)
   Andrews, Presiding Judge.

Craig Alford, Donnie Hartman, and Johnny Hartman were tried jointly and convicted of several counts of aggravated assault and armed robbery. The sole issue on appeal is whether the trial court erred in dismissing one of the jurors and replacing him with an alternate juror. Appellants claim that their due process rights and their right to a fair, representative, and impartial jury were violated by the dismissal and substitution. Because we conclude the trial court made an informed finding that the juror was incapacitated, we affirm.

The evidence at trial, taken in the light most favorable to the verdict, was as follows. On the night in question, several men were at Lawrence Fuller’s house playing cards. Fuller said that he saw three men come in wearing ski masks, one of whom was carrying a gun. The men told Fuller and his friends to put their money on the table. After laying his money down, Fuller ran out of the house, and his friends followed. As they ran across the patio, Fuller heard two gunshots being fired.

Fuller and his friends hid in the backyard for a few minutes and then went around to the front of the house. They saw a car driving down the street, and as it passed them, the men inside tried to slide down on the seat and duck out of sight. Fuller said the men looked like the robbers so he and one of his friends got in a car and followed them. When the driver of the car saw he was being followed, he accelerated. The chase ended near Ft. Benning, where Fuller and his friend saw some military police. They stopped and told the police they were following some men they thought had robbed them. The military police then took up the chase and after less than a quarter of a mile saw the car about twenty feet off the road with three doors standing open. Police found one ski mask in the car and the other two ski masks near the car. The police picked up Alford walking by the side of the road. Alford first ran into the woods when he saw the officers but then came out and surrendered. Canine units found Donnie and Johnny Hartman in the woods.

Cleveland Farley, Fuller’s brother-in-law, was also at Fuller’s house that night. He said that about 15 minutes before the masked men came into the house, Johnny Hartman had come by and asked to talk to Fuller. Fuller told him to come back later, and he left. One of the other men who was playing cards testified that he recognized Johnny Hartman’s voice when one of the masked men told them to put their money on the table.

The State also introduced into evidence Alford’s confession in which he admits going into the house, being involved in the robbery, that shots were fired, and also being chased by the victims and later the military police.

After the jury found the three defendants guilty of all charges, defense counsel requested that the court poll the jury. When the judge asked juror Jackson, “was this your verdict?” Jackson replied, “Yeah. I’m a little confused, though, you know.” Juror Jackson then replied that it was his verdict but when asked if it was still his verdict, said, “I don’t know.” The court then sent the jury back to continue deliberating. Shortly afterward, the jurors came back in, and the foreperson told the court:

We have one juror that has not participated in any of the discussions, twice voted with everyone, changed his mind out here as you know. When we went back we tried to open discussion, find out, you know, what the problems was. This one juror will not participate in the conversations and his statement to all of us is he just wanted out, he did not want to be part of the jury and he wanted out.

The judge recharged the jury on their duty to deliberate and sent them out. The jurors again came back, and the foreperson again said the juror refused to participate. She asked if they could get another juror.

The trial court questioned the juror who refused to participate and asked him if he could attempt to reach a verdict on the evidence. The juror replied:

Okay. When I back there I was discussing with them but that crowd back there be snappy. You know, they saying all kind of stuff. One called me racist and this and that, you know what I’m saying. So, I mean, I say what I had to say and they just bucked up at me, you know.

The court then asked the juror if he was instructed to go in and deliberate, would he do so. The juror replied:

Well, I was working with them, you know what I’m saying, and I mean, I had, you know. You know, this is what I say. They can’t make me say nothing. You know, they trying to get me to say what they saying. You know, there was two or three of us saying one thing and then when it came down to it the rest of them just went all together with one thing. You know, I’m just different from them. I mean, you know, I say my word and they got crazy when I said what I said.

The judge then asked the juror if he was willing to participate with the other jurors or did he simply want to be off the jury. The juror replied, “I want off.”

At that time, the court found the juror was unable to serve and replaced him with an alternate. Defense counsel all moved for a mistrial, which was denied. The jury resumed deliberations and later came back with another guilty verdict as to all three defendants. This appeal followed.

OCGA § 15-12-172 provides in pertinent part:

If at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.

This Court has held that this Code section “implicitly authorizes the trial court to exercise its discretion with regard to excusing a juror from the panel.” Remine v. State, 203 Ga. App. 30, 32 (416 SE2d 326) (1992). But, we have held it is error for the trial court to excuse a juror who may have harbored reasonable doubt. Stokes v. State, 204 Ga. App. 141 (418 SE2d 419) (1992).

In Stokes, after approximately thirty minutes of deliberation, the foreperson told the judge that two jurors either could not or would not “make a decision because they feel that there has not been enough evidence either way.” Id. at 142. The judge told the jury that each juror must vote, but if the two jurors would not vote, he would replace them. After returning to the jury room, the two jurors would not vote, and the court dismissed them and replaced them with two alternates. Id.

On appeal, this Court noted that the judge never inquired into the jurors’ reasons for not voting and there was no showing that the jurors were in any way incapacitated. Stokes, supra. We held that the trial court should have either recharged the jury on the burden of proof or declared a mistrial. Citing Peek v. Kemp, 746 F2d 672, 681 (11th Cir. 1984), the court held that “alternate jurors do not serve to substitute for minority jurors who cannot agree with the majority,” and concluded that the trial court erred because it dismissed two jurors who may have harbored reasonable doubt. Stokes, supra.

This case differs from Stokes in several important aspects. Here, the trial court did inquire of the juror at some length as to why he refused to participate. The juror never said he did not think there was enough evidence to find the defendants guilty; rather, his problems seem to have been with his perceptions about the other members of the jury. Also, the juror had reached the point where he refused to participate in deliberations and would only say that he “wanted off” the jury. A trial judge may, in his discretion, dismiss a juror and replace him with an alternate when he is convinced that the juror’s ability to perform his duties is impaired. Smith v. State, 266 Ga. 827, 829 (470 SE2d 674) (1996).

Cloud v. State, 235 Ga. App. 721 (510 SE2d 370) (1998), is almost directly on point. In Cloud, the juror sent the court a note stating he could not “take this anymore.” “It is making me sick.” Id. When the court questioned him, the juror said that he could not judge Cloud and did not want to go back to the jury room. Id. This Court found that the trial judge did not abuse her discretion in replacing the juror with an alternate when she took the juror at his word that he could not judge Cloud. Id. at 722. The court also rejected Cloud’s argument that the juror was actually expressing a belief in Cloud’s innocence. Id. Further, the court held there was no evidence of racial discrimination even though a black juror was replaced by a white juror because the sole reason the juror was removed was his reluctance to continue serving. Id.

Decided April 17, 2000

Reconsideration dismissed May 30, 2000.

William P. Nash, Jr., for appellant (case no. A00A0132).

Craig D. Alford, pro se.

John T. Martin, for appellant (case no. A00A0133).

Wallace A. Kitchen, for appellant (case no. A00A0751).

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

Likewise, in the case before us, the trial court removed juror Jackson only after Jackson made it clear that he would not participate in any discussions with his fellow jurors and kept repeating that he wanted “off” the jury. Also, as discussed above, juror Jackson never stated that he believed the defendants were innocent but rather described problems dealing with his fellow jurors and participating in deliberations. Moreover, it was only after recharging the jury on their duties and after several lengthy discussions with the juror, that the trial court determined that the juror was unable to continue serving on the jury.

Thus, where the trial court has made an informed finding of incapacity, we cannot say that it abused its discretion in this matter. Cloud, supra. There was no error.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.


author: Phipps, Judge.

text:
    A00A0413.
    STAMPS v. JOHNSON et al.
    (535 SE2d 1)
   Phipps, Judge.

Allen and Regina Stamps filed a legal malpractice action against Donald W. Johnson and The Johnson Law Firm (hereinafter “Johnson”). The trial court dismissed the Stampses’ complaint with prejudice because they did not file an expert affidavit as required by OCGA § 9-11-9.1. The Stampses appeal. We find the dismissal with prejudice was proper and affirm.

Decided May 10, 2000

Reconsideration denied May 30, 2000.

Allen Stamps, pro se.

Regina Stamps, pro se.

Johnson Law Firm, Donald W. Johnson, for appellees.

The Stampses previously brought a slip and fall action against Ingles Markets on behalf of their daughter. Johnson represented them. The trial court granted partial summary judgment to Ingles because it determined that the complaint had been filed one week after a two-year statute of limitation had elapsed. Johnson apparently took the position that a longer statute of limitation applied.

The Stampses later filed this malpractice action. They did not file an expert affidavit as required by OCGA § 9-11-9.1, however, and Johnson filed a motion to dismiss contemporaneously with his initial responsive pleading. The trial court granted the motion.

On appeal, the Stampses assert three bases for their contention that the trial court erred: first, the court denied them their right to a jury trial; second, the evidence clearly establishes legal malpractice by Johnson, creating questions of fact to be determined by a jury regarding the damages they suffered; and third, the triál judge abused his discretion because the failure to file the affidavit was a procedural defect which could have been cured.

Under ABE Engineering v. Griffin, Cochran & Marshall, the trial court was correct in dismissing the complaint with prejudice. In ABE, the plaintiff failed to file an expert affidavit as required by OCGA § 9-11-9.1, and this court held that dismissal of the complaint with prejudice was the appropriate consequence. In accord with ABE, we affirm the judgment of the trial court.

Judgment affirmed.

Johnson, C. J, and McMurray, Senior Appellate Judge, concur.

       The Stampses have attached to the brief correspondence wherein they urged Johnson to file the complaint before the two-year period elapsed.

       See OCGA § 9-11-9.1 (b).

       212 Ga. App. 586 (443 SE2d 1) (1994).