text:
    A93A1217.
    QUEEN et al. v. CAREY.
    (435 SE2d 264)
   Beasley, Presiding Judge.

Plaintiffs appeal from a defendant’s verdict in a negligence action for the wrongful death of plaintiffs’ 19-month-old son Jason. The boy died as the result of injuries sustained when the defendant, the child’s step-grandfather, whom he called “Papa,” ran over him as he was moving the truck in his yard. Defendant was a used car dealer working out of his home and it was not unusual for him to use his yard to demonstrate a vehicle to a customer. Sometimes during such demonstrations, Jason and his older brother were in the yard.

The two boys along with their mother and her boyfriend were residing in defendant’s father’s house, which was adjacent to defendant’s residence and which was being rented for them by. defendant and his wife, the boys’ maternal grandmother. Plaintiffs had separated following Jason’s birth, and from that time until the incident, he along with his brother were cared for and supported almost exclusively by defendant and his wife. The defendant father made no direct contributions for the children’s support. Counting the period of her pregnancy, the mother once received $35, and it was from the paternal grandmother on the father’s behalf.

Shortly after the child’s death, the mother and the surviving son moved into a government-subsidized apartment, where they were fed and clothed through government assistance. They were residing there when the father filed the present action, two months after the fatality. They lived in the apartment for only a brief period and then moved into defendant’s home, where they were still living at the time of trial. The father failed to provide support for the surviving son. At trial, the surviving son referred to defendant as “Papa.” The mother opined that defendant had not been driving the truck “recklessly” and agreed that defendant “was driving like anybody else would as far as pulling the truck forward.”

The trial defense was two-fold: defendant denied any negligence on his part; defendant asserted that the father had abandoned the deceased child and that at the time of the child’s death, he (the defendant) was in loco parentis, thereby barring an action against him for the child’s negligent wrongful death.

1. Plaintiff parents contend that the trial court erred in allowing, over their continuing objection, evidence of the defendant’s support and the father’s lack of support of the deceased child at times other than when the action was filed and thereafter, and in charging the jury that it could consider such evidence in determining whether or not defendant was in loco parentis to the child. It was error, they maintain, because as stated in Newsome v. Dept. of Human Resources, 199 Ga. App. 419, 421 (2) (a) (405 SE2d 61) (1991) “application of the doctrine of parental immunity is controlled by the status of the relationship of the parties at the time the action is filed,” and at the time suit was filed, defendant was not providing any support to the plaintiffs or to the surviving brother.

First, there could be no evidence of support of the child at the time of filing. The child was dead.

Second, appellants misapply Newsome. To understand why, it is necessary to examine the policy considerations behind intrafamilial tort immunity and to apply them here.

Under the original rule of Fowlkes v. Ray-O-Vac Co., 52 Ga. App. 338 (183 SE 210) (1935), in the context of child emancipation, “an action is maintainable, if the child was emancipated at the time of the tort and the action.” Id. at 340. Thus, the circumstances were examined as of the time the cause of action accrued.

“It has long been held that an unemancipated child has no civil remedy against a parent or person standing in loco parentis for injuries resulting from simple negligence because to allow such an action would violate public policy.” Clabough v. Rachwal, 176 Ga. App. 212, 213 (335 SE2d 648) (1985). The policy reasons behind the rule are to prevent “ ‘(1) disturbance of domestic tranquility, (2) danger of fraud and collusion, (3) depletion of the family exchequer, (4) the possibility of inheritance, by the parent, of the amount recovered in damages by the child, and (5) interference with parental care, discipline, and control.’ [Cit.]” Id. at 213 citing Eschen v. Roney, 127 Ga. App. 719, 724 (194 SE2d 589) (1972). In Clabough, plaintiff filed the action as guardian ad litem of the decedent’s son. After the cause of action accrued, decedent’s son moved into defendant’s house, and was living there when the complaint was filed. This Court held that in that situation public policy would best be served by “looking to the status of the relationship at the time of filing and thereafter.” Had the Court relied on the status at the time of accrual of the cause of action, it would have had to find that defendant was not in loco parentis to the plaintiff child, which finding would have ill-served the important policy considerations behind the doctrine.

The Supreme Court had earlier reached a similar result in Nelson v. Spalding County, 249 Ga. 337 (290 SE2d 915) (1982), in which plaintiff married defendant after plaintiff’s cause of action against defendant accrued but before the. complaint was filed. The court held that plaintiff’s cause of action was barred by interspousal immunity because of the parties’ status at the time of the claim. Id. at 337 (3) (a). As in Clabough, examination of the parties’ status as of the claim resulted in its being barred.

In Arnold v. Arnold, 189 Ga. App. 101 (375 SE2d 225) (1988), aff’d, 259 Ga. 150 (337 SE2d 856) (1989), defendant was a minor at the time of accrual of the cause of action and at the time the complaint was filed, but was emancipated at the time the trial court granted her summary judgment on the ground of family immunity. This Court citing Nelson held that inasmuch as defendant was emancipated at the time of the granting of summary judgment, the policy reasons for immunity were not present and therefore the granting of judgment on that basis was in error. This Court in the later case of Morris v. Brooks, 186 Ga. App. 177 (366 SE2d 777) (1988) (physical precedent but later cited in Mohorn v. Ross, 205 Ga. App. 443 (422 SE2d 290) (1992)), extracted from Clabough and Nelson the principle that “where there is a change of status in the relationship between the parties in the interval between the tortious act and the filing of the action, the time of filing governs.” Morris at 179. Thus, it follows that if the status of the parties does not change, the time of filing need not be determinative.

In Hennessy Cadillac v. Pippin, 197 Ga. App. 448 (398 SE2d 725) (1990), this Court held that Clabough and Nelson required the court to look to “ ‘the status of the relationship at the filing of the suit and thereafter’ and not to the time of the tort.” Hennessy Cadillac at 449. This was necessary because of the ongoing parent-child relationship of the plaintiffs with the sought third-party defendant.

The majority holding in Newsome, relied on by appellants, was tailored to the particular circumstances of the case. The rule was applied to ensure that the relationship between the defendant foster parents and the surviving child had not changed between the time of the tortious injury and the time of the claim. Family immunity is to preserve family tranquility, but if the familial relationship no longer exists at the time the claim is filed or thereafter, see Hennessy Cadillac, supra, “concern for the quality and stability of that relationship necessarily abates, thus canceling the reason behind the grant of immunity.” Newsome at 422 (2) (a).

While the objectives of immunity may “become relevant after an action is filed, not at the time a cause of action accrues,” Mohorn at 443, consideration of evidence that would shed light on the familial relationship at issue is not isolated to only the time of filing suit. Often, as in the case at bar, in order to understand the family dynamics which would compel or abrogate immunity, it is necessary for the fact finder to view a broad span of evidence, stretching from the time of injury to the claim and thereafter. See statement of facts, supra. A continuum, and not a static point (snapshop) must be viewed. As in Mohorn, supra, an examination of the relationship only at the time the claim is filed is not sufficient in order to determine whether or not “there remains the possibility of salvaging the family unit.” Id.

Here, the jury properly was allowed to consider all evidence relevant to the defendant’s claim of being in loco parentis and in instructing the jury to consider evidence of the doctrine in defense. Even if evidence of the remaining familial relationship had been restricted to the time of filing suit and thereafter, such isolated evidence would still have authorized the jury to find defendant in loco parentis so as to invoke the protection of parental immunity.

2. Plaintiffs further contend that the trial court erred in charging the jury that the father’s recovery for the wrongful death of the minor child could be lost if the jury found he had failed to contribute to the support of the child. They maintain that the charge was based on Solomon v. Sapp, 169 Ga. App. 267 (312 SE2d 166) (1983) which “involved a contest between parents as to the proceeds of a wrongful death case” and that the trial court “had already ruled that such an action [was] post judgment pursuant to O.C.G.A. § [19-7-1 (c) (6)].”

Decided August 16, 1993.

B. Andrew Prince, for appellants.

Crim & Bassler, Harry W. Bassler, Carey, Deal, Jarrard & Walker, Jack M. Carey, for appellee.

Contrary to appellants’ contention, the instruction is not a statement of law from the Court of Appeals’ ruling in Solomon but is rather taken from the Supreme Court’s holding after granting certiorari in the case, Sapp v. Solomon, 252 Ga. 532 (314 SE2d 878) (1984).

Furthermore, it is a correct statement of the law. See Solomon v. Sapp, 171 Ga. App. 147 (320 SE2d 636) (1984). The fact that the court in an order earlier entered in the case may have stated that the issue was one of post-judgment concern rather than a defense, did not preclude the instruction or render it a less than accurate statement of the law.

Moreover, the charge clearly addresses only the question of the right to participate in any recovery and does not instruct that financial abandonment by the father, in and of itself, is a defense to any liability on the part of the defendant.

While the charge may have been gratuitous at that juncture of the case, it was not harmful error in the context of the court’s total instruction.

3. Lastly, plaintiffs contend that the trial court erred in failing to give requests to charge the jury as to the duty of landowners, in general, and in particular to minor children when on their premises as invitees.

The instruction sought by plaintiffs cast the deceased child as an invitee on defendant’s property. Such a characterization would have been wholly inaccurate under the undisputed facts. At the time of the tragedy, the child was part of defendant’s household.

Judgment affirmed.

Cooper and Smith, JJ., concur.

       Although the complaint alleged defendant’s gross negligence, the case was tried as one for ordinary negligence.

       The defendant’s request to charge in this regard also incorrectly cited the Court of Appeals case.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A93A1705, A93A1706.
    BEAVERS v. GILSTRAP; and vice versa.
    (435 SE2d 267)
   Blackburn, Judge.

These appeals arise out of a motor vehicle collision on August 8, 1990, when the automobile driven by Craig Gilstrap struck the rear of the vehicle in which Joann Beavers was a passenger. Beavers commenced this action against Gilstrap to recover for injuries allegedly sustained during the collision.

Prior to the trial, Gilstrap’s insurance carrier entered a covenant of settlement for its $15,000 policy limit, but elected to participate in the trial to defend against damages. Following the trial, the jury awarded Beavers $75,000, but the trial court reduced the award by the $15,000 settlement owed by Gilstrap’s insurer, $45,000 in stacked uninsured motorist coverage available to Beavers, and $5,000 in PIP benefits Beavers received, thereby arriving at a final judgment for $10,000 plus costs. Beavers appeals from the judgment entered on that verdict, and Gilstrap appeals from the trial court’s subsequent order granting post-judgment interest.

1. Following the denial of her motion for new trial, Beavers filed a notice of appeal on December 10, 1992. On January 4, 1993, the trial court entered an order awarding Beavers post-judgment interest because of the failure of Gilstrap’s insurer to make a timely and unconditional tender of the settlement payment, and on January 20, the trial court entered another order taxing interest on the judgment.

Several pleadings and orders were filed on February 12, 1993: Beavers filed a request for an extension of time to file a transcript; the trial court granted that extension, nunc pro tunc as of January 20, 1993; in response to Gilstrap’s motion to stay the writ of fieri facias for the post-judgment interest, the trial court ordered the Clerk of Court not to issue a writ as earlier provided in the order of January 20, 1993, and then issued another order instructing the Clerk to pay Beavers the amount of interest paid into the court registry; Gilstrap filed his notice of cross-appeal from the order on January 20, 1993; and, Beavers filed a motion to dismiss Gilstrap’s cross-appeal. On February 22, 1993, Gilstrap filed a motion to dismiss Beavers’ appeal because of the failure to file a transcript timely. The trial court, however, never ruled on either party’s motion to dismiss, and both parties have reiterated their motions to dismiss before this court.

Gilstrap contends that Beavers’ appeal should be dismissed because the trial transcript was not filed with 30 days of the notice of appeal and Beavers had not timely requested an extension to file the transcript, as required under OCGA §§ 5-6-39 and 5-6-42. In response, Beavers asserts that at the hearing on Gilstrap’s motion to dismiss, the trial court acknowledged having failed to act upon a request' for extension to file the transcript that had been timely presented by Beavers, hence the order of February 12, 1993, filed nunc pro tunc as of January 20, 1993. The accuracy of Beavers’ assertion, however, appears questionable, inasmuch as Gilstrap’s motion to dismiss was not even filed until February 22, 1993, and specifically waived any hearing on the motion.

OCGA § 5-6-48 (c) authorizes dismissal of a party’s appeal for failure to file a transcript timely only if the delay was unreasonable, inexcusable, and caused by the party. Baker v. Southern R. Co., 260 Ga. 115 (390 SE2d 576) (1990). Under that Code section, only the trial court has the authority to dismiss an appeal for failure to file a transcript timely. “(T)he cause for delay in the processing of the appeal is a fact issue for determination in the trial court,” and in making that determination, the trial court exercises a broad legal discretion which is subject to appellate scrutiny only for abuse. (Citation and punctuation omitted.) Barmore v. Himebaugh, 205 Ga. App. 381, 382 (422 SE2d 255) (1992).

In the instant case, the trial court never made the requisite fact determination regarding whether the delay in filing the transcript was unreasonable, inexcusable, and caused by Beavers. Accordingly, the appropriate course of action is to remand the case to the trial court to make that determination and rule on Gilstrap’s motion to dismiss. See Smith v. Ga. Power Co., 183 Ga. App. 295 (358 SE2d 879) (1987); Hosch v. Pickett, 172 Ga. App. 13 (321 SE2d 777) (1984).

2. Although entitled a “cross-appeal,” Gilstrap’s appeal actually is an attempted independent appeal from the trial court’s subsequent award of post-judgment interest to Beavers. For that reason, his appeal is not subject to dismissal under OCGA § 5-6-38 for not having been filed within 15 days of service of Beavers’ notice of appeal.

However, it is apparent that Gilstrap’s appeal is from the trial court’s award of post-judgment interest which was entered on January 4, 1993, and not the subsequent order of January 20, 1993, which enforced the earlier order. As such, his notice of appeal filed on February 12, 1993, was untimely, requiring dismissal of the appeal. OCGA § 5-6-38; Jarrard v. Copeland, 205 Ga. App. 20 (421 SE2d 84) (1992). Gilstrap’s claim that his attorney was never served with a copy of the order entered on January 4, 1993, is of no benefit to him, as the requirement of filing a notice of appeal within 30 days of the judgment “can not be dispensed with upon the ground that counsel did not know the order sought to be appealed had been filed.” Cranman Ins. Agency v. Wilson Marine Sales & Svc., 147 Ga. App. 590, 591 (249 SE2d 631) (1978); accord Alexander v. Blackmon, 129 Ga. App. 214 (1) (199 SE2d 376) (1973).

Case No. A93A1705 remanded. Case No. A93A1706 dismissed.

Pope, C. J., and Birdsong, P. J., concur. Andrews, J., disqualified.

Decided August 16, 1993.

Mitchell, Coppedge, Wester, Bisson & Miller, Warren N. Coppedge, Jr., E. Neil Wester III, for appellant.

Kinney, Kemp, Pickett, Sponcler & Joiner, Bruce A. Kling, Rice, Kreitzer & Winer, Steven W. Kreitzer, for appellee.


author: Andrews, Judge.

text:
    A93A0102.
    KEMIRA, INC. v. AMORY et al.
    (435 SE2d 236)
   Andrews, Judge.

Lester Roy Amory sued Remira, Inc. alleging he suffered personal injury and other damages as a result of exposure to toxic gas released into the atmosphere by Remira on December 29, 1989. Mr. Armory’s wife, Mary Jean Amory, was joined as a plaintiff in the action to bring her loss of consortium claim. Remira appeals claiming the trial court erred by eliminating certain defenses interposed by Remira in its answer as a sanction for failing to timely respond to discovery, and by granting summary judgment as to liability in favor of the plaintiffs.

The complaint was filed on January 16, 1991 along with plaintiffs’ first request for admissions. Remira filed timely answers to the complaint and the requests for admissions. On May 8, 1991, plaintiffs filed and served Remira by mail with a second set of requests for admissions, requests for production of documents, and interrogatories. Remira filed timely responses to the second requests for admissions, but failed to timely respond to the requests for production and interrogatories. Two days after the responses were due, plaintiffs filed a motion pursuant to OCGA § 9-11-37 (a) seeking an order to compel discovery. The trial court granted the motion, and entered an order on July 1, 1991 requiring Remira to file responses by July 11, 1991, within ten days of the order. On July 11, 1991, Remira filed partial responses to the requests for production, and a motion seeking to have the July 1 order set asidel On the morning of July 12, 1991 at 8:20 a.m., plaintiffs filed a motion for sanctions which recited Remira’s failure to comply with the July 1 order, and its failure to respond to interrogatories, and requested that the trial court strike Remira’s defensive pleadings and enter a default judgment in favor of plaintiffs. Later in the day of July 12, a few hours after the motion for sanctions was filed, Remira filed responses to all interrogatories.

On August 5, 1991, the trial court heard argument on Remira’s motion to set aside the July 1 order compelling discovery, and on plaintiffs’ motion for sanctions. Although Remira attempted to present testimony from a company official explaining the circumstances of its failure to file timely responses to the interrogatories, the trial court directed that it submit such testimony by affidavit subsequent to the hearing. Kemira subsequently filed an affidavit in response to the motion for sanctions. The affidavit, given by an officer of Kemira in charge of the pending litigation, stated that although the company had started and continued working on responses to the interrogatories when they were received by the company on May 15, 1991, because of various unavoidable and unforeseeable circumstances, it had been unable to timely respond to the interrogatories. The affidavit stated that the complex and comprehensive requests required contact and cooperation with numerous officials and managers in the company, and provided evidence of unavoidable delays in contacting and obtaining information from key personnel necessary to complete the responses because of serious illness in one instance, and the extended absence of other officials either out of the country or on vacation during the period for responses. The affidavit claims that a combination of these factors, not a conscious or intentional refusal to act, were the reasons for the delayed responses.

On August 21, 1991, the trial court entered an order granting Kemira’s motion to set aside, and vacating the July 1 order compelling discovery. The order reserved ruling on plaintiffs’ motion for sanctions. On September 27, 1991, the trial court held a second hearing on the plaintiffs’ motion for sanctions, and heard additional argument that the trial court should impose the requested sanctions under OCGA § 9-11-37 (d) because Kemira had totally failed to file any timely response to the interrogatories, and the belated interrogatory responses filed by Kemira on July 12, several hours after plaintiffs’ motion for sanctions was filed, were too late to prevent the imposition of sanctions. At the September 27 hearing, the trial court also heard testimony from the Kemira official in charge of gathering and providing the information necessary to respond to discovery requests, and who had previously filed the above referenced affidavit. The official additionally explained that managerial changes at the company, removal of documents pursuant to a federal environmental inspection, and his own personal family problems caused delays in gathering the information for responses. On October 28, 1991, the trial court entered an order pursuant to OCGA § 9-11-37 (d) concluding there was a total failure by Kemira to file timely answers to interrogatories, and that the failure was conscious and intentional. On this basis, the trial court barred Kemira pursuant to OCGA § 9-11-37 (b) (2) (B) from asserting or supporting its stated “Second Defense” (lack of proximate cause), and “Third Defense” (negligence defenses) as set forth in its answer to the complaint, which constituted Kemira’s main defenses to plaintiffs’ complaint for damages. Ultimately, plaintiffs moved for and were granted partial summary judgment as to liability largely because Kemira was unable to assert these defenses.

1. Plaintiffs first moved to compel discovery under the two-step procedure of OCGA § 9-11-37 (a) and (b), obtaining an order compelling Kemira to respond by July 11, 1991, and then moving for sanctions on July 12, after Kemira failed to file any answers to interrogatories and comply with the order. However, the July 11 deadline in the order, and plaintiffs’ motion for sanctions under subsection (b) for failure to comply with the order, became moot when the trial court vacated its July 1 order compelling discovery. Nevertheless, the trial court was authorized to consider whether the sanctions requested in the July 12 motion should be imposed under OCGA § 9-11-37 (d). based on Kemira’s total failure to file timely responses to interrogatories. Even though the motion for sanctions filed on July 12 did not specifically request imposition of sanctions pursuant to OCGA § 9-11-37 (d), it recited the failure of Kemira to respond to interrogatories, and requested the sanction of striking defensive pleadings and entry of a default judgment under OCGA § 9-11-37. “[A] motion for a specific sanction is not required before a trial judge is authorized to give that sanction. . . . No technical forms of pleadings or motions are required under the Civil Practice Act. A motion to apply sanctions as provided by law vests discretion in the trial court in which the action is pending to make such orders in regard to the failure to answer interrogatories as are just. Although it may be better practice to request a specific sanction, it is not necessary to do so.” Mayer v. Interstate Fire Ins. Co., 243 Ga. 436, 437 (254 SE2d 825) (1979). (Citations and punctuation omitted.) All that was required procedurally to impose sanctions under OCGA § 9-11-37 (d) was a motion, notice and a hearing. Stolle v. State Farm Mut. &c. Ins. Co., 206 Ga. App. 235, 237 (424 SE2d 807) (1992); Cook v. Lassiter, 159 Ga. App. 24, 25 (282 SE2d 680) (1981).

The record reflects that the parties appeared at two hearings on the motion for sanctions. “OCGA § 9-11-37 (d) (1) authorizes the imposition of sanctions for the failure of a party to respond to [interrogatories], and sanctions may be entered under this provision without the prior filing of a motion to compel. [Cit.] ” Rogers v. Sharpe, 206 Ga. App. 353, 354 (425 SE2d 391) (1992). Moreover, once a motion for sanctions is filed, their imposition cannot be precluded by subsequently filing responses to the interrogatories. Id. at 354; Merrill Lynch &c., Inc. v. Echols, 138 Ga. App. 593, 595 (226 SE2d 742) (1976). Since Kemira failed to file a timely response to interrogatories, or seek a protective order, or an extension of time, before plaintiffs moved for sanctions, the trial court was authorized to consider the imposition of sanctions under OCGA § 9-11-37 (d). Sharpe, supra at 354; Singleton v. Eastern Carriers, 192 Ga. App. 227, 228 (384 SE2d 202) (1989).

Under OCGA § 9-11-37 (d) (1), the failure to serve answers to interrogatories authorizes the court to “make such orders in regard to the failure as are just; and, among others, it may take any action authorized under subparagraphs (b) (2) (A) through (b) (2) (C) of this Code section.” The authorization for immediate sanctions under OCGA § 9-11-37 (d) applies where there has been “ ‘a serious or total failure to respond to interrogatories.’ ” Mayer, supra at 439. (Citations omitted.) “The immediate sanctions authorized under subsection (d) should be applied only in the most flagrant cases — where the failure of discovery is clear.” Agnor, Georgia Civil Discovery (rev. ed. 1991), § 16-13. Though granted a very broad discretion in applying sanctions to enforce compliance with the discovery provisions of the Civil Practice Act, as a general rule, the trial court should attempt to compel compliance through use of lesser sanctions than imposition of drastic measures available under OCGA §'9-11-37 (d). See Hernandez v. State of Ga., 200 Ga. App. 368, 369 (408 SE2d 160) (1991). A failure to make any timely response to interrogatories authorizes the invocation of sanctions under subsection (d), regardless of the reason for the failure. Mayer, supra at 437. However, in determining the particular sanctions to be imposed, this discretion is not without limits. Id. Where the trial court exercises its discretion under subsection (d) to strike or bar the support of defenses in a manner that has the effect of establishing liability in the case, such harsh sanctions should be utilized only in cases of “ ‘a conscious or intentional failure to act, as distinguished from an accidental or involuntary non-compliance.’ ” Smith v. Mullinax, 122 Ga. App. 833, 834-835 (178 SE2d 909) (1970); Bells Ferry Landing v. Wirtz, 188 Ga. App. 344, 345 (373 SE2d 50) (1988).

Sanctions may be imposed only after a motion, notice, and a hearing provided to the party against whom sanctions are sought. Stolle, supra. “This means affording [the party against whom sanctions are sought] an opportunity to explain the circumstances [of the failure to timely respond].” Maxey v. Covington, 126 Ga. App. 197, 199 (190 SE2d 448) (1972). At the first hearing on the motion for sanctions, Remira attempted to provide the testimony of a company official to explain these circumstances, but the trial court directed that such proof be submitted by affidavit. Although it appears the trial court’s order gave little or no consideration to the affidavit, the record does reflect that at the second hearing the trial court subsequently heard testimony from the same company official, and gave Remira an adequate opportunity to explain its failure to file timely responses. “Historically it has been the policy of the Georgia appellate courts to refuse to interfere with a trial court’s exercise of its discretion in absence of abuse. This policy is applicable to a trial judge’s exercise of the broad discretionary powers authorized under the discovery provisions of the Civil Practice Act.” Joel v. Duet Holdings, 181 Ga. App. 705, 707 (353 SE2d 548) (1987). (Citations and punctuation omitted.) Although the sanctions imposed were harsh given the circumstances, the present record shows that answers were not filed until 65 days after the interrogatories were filed and served by mail, long after the time for timely responses. Since there was some evidence upon which the trial court could base its ruling, we find no abuse of discretion in striking the defenses. Swindell v. Swindell, 233 Ga. 854, 856-857 (213 SE2d 697) (1975).

2. Acting pursuant to OCGA § 9-11-37 (b) (2) (B) the trial court ordered that Kemira “is hereby barred from supporting or opposing designated claims or defenses, or prohibited from introducing designated matters into evidence as they relate to . . the second and third defenses enumerated by Kemira in its Answer filed in this action. Kemira’s second defense alleged that “[t]he Plaintiffs are barred from any recovery from Defendant because no action by the Defendant is the proximate cause of the Plaintiffs’ injuries.” The third defense provided that “the Plaintiffs would be barred from the recovery of any amount from the Defendants in that: (a) the Plaintiff, Lester Roy Amory’s own negligence contributed to the injury; (b) [said plaintiff] assumed the risk of injury; (c) [said plaintiff’s] own action was comparatively more negligent than the Defendant’s; and (d) [said plaintiff’s] own negligence was the proximate cause of his injury.”

In its second and third enumerations of error, Kemira argues the trial court erred in granting partial summary judgment in favor of the plaintiffs on the issue of liability because the trial court’s sanctions order did not eliminate issues as to proximate cause and negligence. Although the sanctions order did not eliminate the accident defense of Kemira, in light of Kemira’s claim that the negligence of a third party caused the alleged injuries, the trial court correctly ruled that the remaining defense of accident did not preclude summary judgment on liability. Chadwick v. Miller, 169 Ga. App. 338 (312 SE2d 835) (1983); see Tolbert v. Duckworth, 262 Ga. 622 (423 SE2d 229) (1992). The sanctions order clearly eliminates proximate cause as a defense to any injury alleged by the plaintiffs. As to defenses of contributory negligence, assumption of risk, comparative negligence, or plaintiff’s own negligence as the proximate cause of his injury, the trial court’s sanctions order eliminates these defenses as they pertain to Lester Roy Amory’s action for injuries he claims to have suffered as a result of Kemira’s negligence, but the sanctions order does not address elimination of such defenses as they may separately relate to Mary Jean Amory’s claim for loss of consortium. As the record stands after elimination of these defenses, we find no error in the trial court’s grant of summary judgment as to Kemira’s liability to Lester Roy Amory on his action for any injuries sustained as a result of Kemira’s negligence. The sanctions order did not eliminate all such negligence defenses with respect to the loss of consortium claim, but nevertheless eliminated proximate cause as a defense on all claims. Thus, the effect of the sanctions order with respect to the loss of consortium claim is unclear since any such negligence defenses are inextricably tied to proximate cause as a defense. Accordingly, summary judgment against Kemira as to liability on the loss of consortium claim is reversed, and the case remanded for the trial court to clarify the effect of the sanctions order with respect to defenses to liability on the loss of consortium claim.

Decided July 26, 1993

Reconsideration denied August 17, 1993

Clark & Clark, Fred S. Clark, for appellant.

John C. Watts, Barrow, Sims, Morrow & Lee, A. Mark Lee, Painter, Ratterree, Connolly & Bart, James L. Elliott, for appellees.

Judgment affirmed in part, and reversed and remanded in part.

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


author: Birdsong, Presiding Judge.

text:
    A93A0905.
    GOLDEN v. NATIONAL SERVICE INDUSTRIES.
    (435 SE2d 270)
   Birdsong, Presiding Judge.

Chester Golden sued National Service Industries d/b/a National Linen Service for damages for breach of an oral agreement for a three-year term of employment, and for fraud by defendant in promising that term of employment with no intention to fulfill it. The trial court granted summary judgment to defendant, and Golden appeals. Held-.

Employment in Georgia is terminable at the will of either party (OCGA § 34-7-1), so an employee has no entitlement to a certain term of employment unless a contract exists therefor. An oral contract of employment for a term beyond one year is unenforceable under the statute of frauds. OCGA § 13-5-30 (6). Appellant contends, however, that there was part performance of this oral agreement which takes it out of the statute of frauds. OCGA § 13-5-31 (2) and (3).

Part performance of oral employment contracts takes such contracts out of the statute of frauds if the part performance is consistent with the presence of a contract and inconsistent with the lack of a contract. Mere entry on employment is insufficient part performanee to satisfy this requirement. Hudson v. Venture Indus., 243 Ga. 116, 118 (252 SE2d 606). Such acts as starting employment, moving, and refusing another offer are merely preparatory or preliminary to. the performance of a contract terminable at will, and do not verify the probable existence of an employment contract. Id. at 119; Alkaril Chemicals v. O’Lenick, 202 Ga. App. 230 (414 SE2d 257); see Utica Tool Co. v. Mitchell, 135 Ga. App. 635, 637 (218 SE2d 650).

In Baxley Veneer &c. v. Maddox, 261 Ga. 309, 310-311 (404 SE2d 554), there was no evidence of acts that would “verify the probable existence of a contract of employment. . . . [T]here was no evidence that [the employee] did anything that would not have been required by any employee who took the job. Nothing he did conferred an uncompensated benefit on the employer so that the ‘refusal to enforce the contract (is) tantamount to a fraud on the employee.’ [Hudson, supra] at 118.”

Appellant contends that as a condition to his agreement to quit his former job and work for appellee for three years, he signed an agreement which prohibited him from competing with appellee for twelve months after his employment with appellee was terminated. Appellee does not deny appellant entered such a contract but does not concede the fact, and urges that signing a non-compete agreement is not sufficient part performance to take an oral employment agreement out of the statute of frauds. Appellee contends appellant’s alleged signing of the covenant not to compete was standard in the industry, was merely preparatory or preliminary to employment-at-will and was not “consistent with the presence of a contract and inconsistent with the lack of a contract.” Id.

On appellee’s motion for summary judgment, we construe the evidence in favor of appellant and give appellant the benefit of every doubt. White House v. Winkler, 202 Ga. App. 603, 606 (415 SE2d 185). There is a form contract of employment-at-will in the record which is not signed. Paragraph 3 of that contract provides that employee “expressly covenants and agrees, which covenant and agreement is of the essence of this contract,” that for 12 months after termination of his employment he shall not, for himself or another, solicit the patronage from any entity who was served by appellee during the 12 months preceding his termination. Appellant in deposition denied that the employment-at-will contract was the one he signed; he indicated he could not produce the non-compete contract he signed because appellee did not give him a copy of it. Further, appellant does not contend appellee tried to enforce the alleged non-compete agreement.

Beyond the alleged non-compete agreement which has not been produced, and which appellant does not contend appellee ever enforced, there is nothing in the case beyond the “ ‘merely preparatory or preliminary’ ” acts for performance of an employment terminable at will. Hudson, supra at 119. Assuming that there was such a written non-compete agreement, we must speculate as to its terms. The lack of written evidence of it leaves it too vague to enforce and makes it impossible to determine whether it was enforceable under laws relating to restrictive covenants. See Fleury v. AFAB, Inc., 205 Ga. App. 642, 643 (423 SE2d 49) and ALW Marketing Corp. v. McKinney, 205 Ga. App. 184, 185 (421 SE2d 565), cert. denied.

Decided August 18, 1993.

Page, Scrantom, Harris & Chapman, Mark R. Youmans, for appellant.

Elarbee, Thompson & Trapnell, Robert J. Martin, Jr., Douglas H. Duerr, for appellee.

Appellee made a prima facie case for summary judgment by showing that there was no part performance sufficient to take the oral employment contract out of the statute of frauds under OCGA § 13-5-31; appellant could not rest upon his pleadings, but “must point to specific evidence giving rise to a triable issue.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). As appellant could not produce evidence of an enforceable non-compete agreement which was consideration for a three-year employment agreement, and which was enforced or sought to be enforced by appellee so as to constitute “part performance” of the employment agreement, he could not avoid summary judgment on that ground. This applies both to appellant’s claim for breach of contract and to his claim for fraud. See OCGA § 13-5-31 (2) and (3); Hudson, supra at 118.

We find no merit in any other claims of appellant that there was such part performance of the oral employment contract to take it out of the statute of frauds.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


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    A93A1182.
    COTTRELL v. THE STATE.
    (435 SE2d 272)
   Blackburn, Judge.

Following a bench trial, the appellant, Steve Cottrell, was convicted of theft by conversion. On appeal, his sole contention is that the evidence was insufficient to support his conviction.

In late January 1990, Cottrell approached Herschel Elrod with a plan to buy a quantity of truck tires for $2,000 and then resale them for $6,000, with the two men splitting the profits. Elrod, who owned and operated a tire business, had to advance Cottrell the $2,000 to purchase the tires, but he was to be repaid this initial investment before the profits were divided. On January 25, 1990, he gave Cottrell a check for that amount but left the name of the payee blank, because Cottrell told him that he was not sure who would be bringing the tires and thus did not know what name to put on the check. Elrod testified that Cottrell assured him that there would be no problem with the other party accepting Elrod’s check.

Elrod also stated that Cottrell has represented that he already had a purchaser for the tires, and that part of the deal was for Elrod to use his company’s truck to deliver the tires. However, two or three weeks went by and Cottrell never returned with his money or the tires. When Elrod subsequently received his bank statement, he discovered that Cottrell’s mother had endorsed the check, which had been made out to “Cash.” Cottrell’s mother testified that she had gone to her bank and cashed the check for her son without receiving any explanation from him.

Cottrell testified that he had his mother cash the check because the man from whom he was to purchase the tires wanted cash payment. Regarding the sales transaction, he stated that he then met an individual named Charlie Peters at a little league ball park in Greensboro and gave him the $2,000 cash for the tires, but Peters never delivered the tires. After a warrant had been sworn out against Cottrell for the theft charge, Cottrell located Peters but was unable to collect the money from him. During direct examination, Cottrell stated that he had sworn out a warrant against Peters, but on cross-examination he contradicted himself on that point. Also during cross-examination, Cottrell initially stated that when he received the $2,000 check from Elrod, he did not know the name of the individual from whom he was to buy the tires, but later admitted that he had known the individual’s name at that time.

OCGA § 16-8-4 (a) provides that “[a] person commits the offense of theft by conversion when, having lawfully obtained funds or other property of another . . . under an agreement or other known legal obligation to make a specified application of such funds or a specified disposition of such property, he knowingly converts the funds or property to his own use in violation of the agreement or legal obligation.” “ ‘(P)roof of conversion vel non lies in the explanation or failure to explain proved discrepancies between amounts received and disbursements going toward the completion of the contract.’ [Cit.]” Tchorz v. State, 197 Ga. App. 185, 186 (397 SE2d 619) (1990).

In the instant case, Cottrell contends that the evidence failed to prove that he converted the money given to him by Elrod for the purchase of tires. In support of his contention, he relies upon his own testimony that he actually paid the entire $2,000 to the individual named Charlie Peters for that purchase. However, the trier of fact determines the credibility of the testimony presented, and may accept or reject the testimony of any witness. Brantley v. State, 190 Ga. App. 642 (2) (379 SE2d 627) (1989). Cottrell’s credibility was placed in question not only by Elrod’s testimony, but by the inconsistencies in Cottrell’s own testimony. Specifically, considering Cottrell’s self-contradiction regarding his knowledge of Peters’ identity at the time he obtained the blank check from Elrod and his seeking charges

Decided August 18, 1993.

Donna L. Avans, for appellant.

Timothy G. Madison, District Attorney, Jeffery G. Morrow, Assistant District Attorney, for appellee.

against Peters, along with Cottrell’s having assured Elrod that there would be no problem with the third party accepting his check, and then proceeding instead to have his mother present the check at her bank for cash, the trial court had sufficient reason to reject Cottrell’s version of what transpired in the case.

“It is the presence of a fraudulent intent ‘. . . that distinguishes theft by conversion from a simple breach of contract.’ [Cit.]” Baker v. State, 143 Ga. App. 302, 303 (238 SE2d 241) (1977). The evidence established the presence of such an intent in this case. Viewing that evidence in the light most favorable to the verdict, we conclude that it was sufficient to authorize a rational trier of fact to find Cottrell guilty beyond a reasonable doubt of theft by conversion as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


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    A93A1424.
    WIMBERLY v. DEPARTMENT OF CORRECTIONS et al.
    (435 SE2d 67)
   Blackburn, Judge.

Appellant, Tommy Wimberly, appeals the trial court’s award of summary judgment to the appellees, the Department of Corrections, David Evans, Gerald Willis, Paul McNeal, and Quinton Lankford (hereinafter collectively referred to as defendants). Defendants’ motion for summary judgment was based on the expiration of the applicable statute of limitation. Wimberly asserts that the trial court erred in failing to find that his complaint was filed timely pursuant to OCGA § 9-2-61 (a).

The undisputed facts show that on September 22, 1985, Wimberly was an inmate at the Georgia Department of Corrections facility in Alto, Georgia. On that date, Wimberly was shot by inmate Leonard Culbertson during Culbertson’s attempted escape. As a result of the injuries he sustained during that incident, Wimberly filed a lawsuit on August 3, Í987, against the present defendants, as well as others, in the U. S. District Court for the Northern District of Georgia, Gaines-ville Division. Wimberly’s lawsuit was based on alleged violations of the Civil Rights Act, 42 USC §§ 1983, 1985, and 1986. It is undisputed that such actions are governed by a two-year statute of limitation.

The district court allowed Wimberly’s complaint to be filed in forma pauperis, but did not allow service of process to issue until the court could make a frivolity determination authorized by 28 USC § 1915 (d). On October 23, 1987, the district court entered an order dismissing Wimberly’s complaint against the present defendants, pursuant to 28 USC § 1915 (d) for failure to state a claim upon which relief could be granted. Further, the court’s order allowed the complaint to continue against the other defendants, and allowed service of process to issue against the remaining defendants.

Over two years later, on November 9, 1989, Wimberly filed a motion, in the district court, to voluntarily dismiss, without prejudice, the present defendants, as well as one other defendant. The district court granted Wimberly’s motion, by order entered on December 6, 1989. Thereafter, on June 5, 1990, Wimberly filed the instant action.

On appeal, Wimberly argues that his failure to serve the defendants in the federal court case does not preclude him from using the saving provision of OCGA § 9-2-61 (a) which provides that “[w]hen any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state . . . either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later. . . .” We disagree. “In order to bring within the provisions of OCGA § 9-2-61 an action which has been dismissed, so as to make the same stand upon the same footing as to limitation as the original case, it is essential that the declaration filed in the first instance should have been served upon the defendant. . . .” (Citations and punctuation omitted.) Osborne v. Hughes, 200 Ga. App. 558, 559 (409 SE2d 58) (1991). See also Acree v. Knab, 180 Ga. App. 174, 174-175 (348 SE2d 716) (1986).

Wimberly next argues that because the district court did not allow for service of process to be issued, he should not be penalized for his failure to do so. However, this argument ignores the fact that Wimberly could have appealed the district court’s order dismissing the defendants herein pursuant to 28 USC § 1915 (d). See generally Ketchum v. Cruz, 961 F2d 916 (10th Cir. 1992). Instead, Wimberly did nothing for over two years with respect to his claims against defendants. He cannot now be heard to complain that the district court did not allow service on the present defendants.

Decided August 18, 1993.

Theodore M. Forbes, Jr., for appellant.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, William Arnideo, Assistant Attorney General, for appellees.

Wimberly also argues that because he sued under the federal Civil Rights Act, the tolling of the statute of limitation must be determined pursuant to federal law. This is not the case, in Scott v. Muscogee County, 949 F2d 1122 (11th Cir. 1992), the court determined that the renewal of a case dismissed for improper venue was not valid where the original complaint was not served upon the defendant.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A93A0920.
    BROWN v. THE STATE.
    (435 SE2d 274)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of robbery by intimidation. This appeal followed the denial of defendant’s motion for new trial. Held'.

1. In his first and third enumerations, defendant challenges the sufficiency of the evidence.

Ashwin Patel testified that defendant approached the check-out counter of a convenience store where he was working and presented merchandise (a “Coke”) and a $5 bill. Patel testified that he opened the cash drawer to make change; that he noticed defendant’s hand under his sweater and that he heard defendant say, “ ‘Just leave [it] open,’ and . . . , ‘Give me money.’ ” Patel testified that he “lay some money on the counter” and that defendant said, “ T need some more money.’ ” Patel explained that he then gave defendant about $180 in cash and that defendant took the money and fled. Linda Wallace, another employee of the convenience store, testified that defendant approached Patel at the cash register with “one hand underneath his sweater . . .” and instructed Patel, “ ‘Give me all your large bills and lay ‘em on the counter.’ ” This evidence is sufficient to authorize the jury’s finding defendant guilty, beyond a reasonable doubt, of robbery by intimidation. OCGA § 16-8-40 (a) (2); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Johnson v. State, 195 Ga. App. 56, 57 (1) (b) (392 SE2d 280). The trial court did not err in denying defendant’s motion for directed verdict of acquittal.

Decided August 19, 1993.

Laurens C. Lee, for appellant.

Willis B. Sparks III, District Attorney, Wayne G. Tillis, Assistant District Attorney, for appellee.

2. In his second enumeration, defendant contends the trial court erred in allowing the State to reopen its case and present evidence that Patel and Wallace identified defendant as the robber in photographic line-ups.

“Reopening evidence is in the sound discretion of the trial court and will not be disturbed when no abuse of discretion is shown. Mobley v. State, 221 Ga. 716 (146 SE2d 735) (1966); Britten v. State, 221 Ga. 97 (4) (143 SE2d 176) (1965); Miller v. State, 226 Ga. 730 (177 SE2d 253) (1970).” Hurt v. State, 239 Ga. 665, 672 (8) (238 SE2d 542). In the case sub judice, we find no such abuse of discretion. Accordingly, the trial court did not err in allowing the State to reopen its case.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


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    A93A1111.
    GEE v. THE STATE.
    (435 SE2d 275)
   Birdsong, Presiding Judge.

Michael Gee was tried before a jury and found guilty of DUI. He appeals from the judgment of conviction and sentence.

At trial, the factual issue of the identity of the driver was disputed. The evidence adduced below showed the following: Shortly after midnight on an October evening, a Gwinnett County policeman was dispatched to the scene of a single car motor vehicle accident. The car had left the road and struck a tree on the median. This officer found appellant Gee outside of the vehicle attempting to comfort his friend, Perry Maroney, who lay badly injured in the passenger seat. The investigating officer testified that Gee admitted at the scene that he had been the driver of the wrecked vehicle. In opposition, Maroney testified that he, and not Gee, had been driving the vehicle at the time. Over various objections, the State was permitted to introduce a hospital intake record made the night of the wreck, showing that Maroney had stated he had been the passenger. This evidentiary ruling is Gee’s sole enumeration of error. Held:

1. Although Gee raised in the trial court objections to the introduction of the hospital intake record on the bases of privilege and foundation, these grounds are not enumerated on appeal and are consequently deemed to have been abandoned. Ehlers v. Schwall & Heuett, 177 Ga. App. 548, 550 (340 SE2d 207).

Decided August 19, 1993.

John Matteson, for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Deborah M. Perlis, Assistant Solicitors, for appellee.

2. Gee does enumerate on appeal the introduction of the medical record over his hearsay objection.

“A witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case.” OCGA § 24-9-83. A proper foundation was laid to admit the hospital intake report as a business record pursuant to OCGA § 24-3-14 (b). Generally, the contents of a conversation may not be proved by business records. Mitchell v. State, 254 Ga. 353, 355 (5a) (329 SE2d 481). Here, however, the State sought to impeach a defense witness by proof of a prior inconsistent statement which happened to be recorded in the ordinary course of the hospital’s intake procedures. To prove that a statement has been made necessarily requires proof of the content of that statement. Hearsay is admissible in a criminal case for the limited purpose of proving the existence of a witness’ prior inconsistent statement. Kirk v. State, 168 Ga. App. 226, 230 (7) (308 SE2d 592); Burke v. State, 163 Ga. App. 67, 68 (1) (293 SE2d 872); Bradley v. State, 137 Ga. App. 670, 672 (3) (224 SE2d 778). Appellant’s enumeration “ ‘is without merit as the statement [objected to as hearsay] was offered in rebuttal to impeach a witness. (Cit.)’ [Cit.]” Davis v. State, 168 Ga. App. 272, 275 (6) (308 SE2d 602).

3. Appellant further argues that the introduction of this hearsay rebuttal evidence deprived him of his Sixth Amendment right to confrontation. Appellant failed to “raise a due process objection [below] and this court will not consider issues and grounds for objection, even of constitutional magnitude, which were not raised [and determined] in the trial court. [Cits.]” Lewis v. State, 205 Ga. App. 29, 30 (1) (421 SE2d 339).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


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    A93A1485.
    BANKS v. MAYOR & CITY OF SAVANNAH et al.
    (435 SE2d 68)
   Birdsong, Presiding Judge.

In a previous decision in this personal injury case, we upheld the grant of summary judgment to defendant police officer Patton on grounds of governmental immunity. Banks v. Patton, 202 Ga. App. 168 (413 SE2d 744). This appeal is from the grant of summary judgment to defendants City of Savannah et al., on appellant’s claims that defendants’ training of its police in the operation of police cars created a nuisance and violated appellant’s constitutional rights, giving him a claim under 42 USCA § 1983. Held:

1. The law of immunity does not permit the creation of a nuisance by a governmental authority. Mayor &c. of Savannah v. Palmerio, 242 Ga. 419 (249 SE2d 224). See also OCGA § 36-33-1 (b). To be liable for nuisance, a municipality must be charged with performing a continuous or regularly repetitious act or condition which causes injury, and it must have knowledge or be charged with notice of the dangerous condition or repetitive acts causing injury. Palmerio, supra. A one-time occurrence does not amount to a nuisance. City of LaGrange v. Whatley, 146 Ga. App. 174 (246 SE2d 5); see City of Atlanta v. Leake, 243 Ga. 20, 21 (252 SE2d 450); Morin v. City of Valdosta, 140 Ga. App. 361, 362 (231 SE2d 133).

The collision in this case was a one-time occurrence. The fact that other collisions have occurred with police cars in Savannah does not make each collision part of the maintenance of a nuisance. Vehicle collisions are not uncommon occurrences, and the operation of police engaged in pursuit of their duties inherently involves some danger; to constitute a nuisance, such acts must constitute the continuous or regularly repetitious acts or conditions which could work damage to anyone who came in proximity to police cars in Savannah. Town of Fort Oglethorpe v. Phillips, 224 Ga. 834, 838 (165 SE2d 141). Plaintiff has not shown this.

Moreover, evidence that other collisions have occurred involving city police cars is not evidence of improper training of police officers, and does not create an inference that officers are improperly trained. Even the continuity or repetition necessary for a finding of nuisance does not prove nuisance as a matter of law, for nuisance is not shown by the occurrence of any number of collisions. Nuisance can be shown only by acts of appellees, that is, evidence of their specific failure or specific negligence in training which resulted in the collisions. Plaintiff has not shown this.

When the moving party in summary judgment shows there is no evidence creating a jury issue and that movant is entitled to judgment, the respondent may not rest on his pleading, but must point to specific evidence giving rise to a triable issue. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

Decided August 19, 1993.

Roberson, Hangbrook & Ervin, David Roberson, for appellant.

Weiner, Shearouse, Weitz, Greenberg & Shawe, William W. Shearouse, Jr., Wiseman, Blackburn & Futrell, James B. Blackburn, Miriam D. Lancaster, for appellees.

2. The trial court correctly granted summary judgment on appellant’s claim under 42 USCA § 1983. That law is not a means to circumvent sovereign immunity in cases involving negligence; it applies only to acts of a governing body which deprive a citizen of constitutional rights pursuant to “an impermissible or corrupt policy which is intentional and deliberate.” City of Cave Spring v. Mason, 252 Ga. 3, 5 (310 SE2d 892).

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.


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    A93A0919.
    KNIGHT v. THE STATE.
    (435 SE2d 276)
   Blackburn, Judge.

The defendant, Tommy Joe Knight, was indicted for the rape, armed robbery, and kidnapping of a co-worker. Following a trial by jury, he was found guilty of rape and kidnapping, and was acquitted of the armed robbery offense. He was sentenced to life imprisonment for the rape offense and 20 years’ imprisonment for kidnapping, to serve consecutively. This appeal followed.

The evidence produced at trial shows that on the morning of April 5, 1991, as the victim walked her routine path to her place of employment, someone suddenly jumped out of the bushes and grabbed her from behind. A struggle ensued between the two as she attempted to get away, during which the assailant wrestled her to the ground and was able to get on her back and place a flannel shirt over her face as they lay on their sides. During the scuffle, she was hit in the face and stabbed with a sharp object underneath her jaw. She was forcibly lead to another section of the wooded area, where she was pushed down on her knees and told to pull her pants down. The victim was threatened with decapitation if she looked back at him. Throughout the attack, the assailant continued to change his voice. Although he subsequently removed the shirt from her head, she was unable to see her attacker because he kept her head toward the ground. He forced her to submit to sexual intercourse with him, and left the scene. After the police were summoned, the victim was taken to a local hospital where hair and fluid samples were taken from her vaginal area. Approximately three days after the attack, while at work, the victim heard the voice of Knight, a co-worker, and recognized the voice as that of her assailant. She notified the police department of his identity and he was apprehended.

An expert with the Georgia Bureau of Investigation testified that the deoxyribonucleic acid (“DNA”) of semen samples taken from the victim matched the genetic profile of DNA in a known sample of Knight’s blood. The expert further noted that the probability of selecting an unrelated individual of the population from the same race as Knight who had a genetic profile matching the semen taken from the victim was one in ten billion. Although Knight initially made an oral statement and denied having any sexual activity with the victim, after he was informed of the results of the DNA testing by one of the investigating officers, he admitted having sexual intercourse with the victim in a written statement. In the written statement, he indicated that he had given the victim crack cocaine on the night before in exchange for sex, but they did not engage in any sexual intercourse as agreed. On the morning of the incident, when he asked the victim for his money, she denied owing him any money. As she walked away from him, he grabbed her arm, and she scratched his neck. Thereafter, he slapped her face and told her that she was not going to work until she gave him his money or “something.” He maintained that the two proceeded to walk over to some bushes and had sexual intercourse. He denied stabbing the victim and further indicated in his written statement that any scratches around her neck came from his fingernails. At trial, he acknowledged that his written statement was accurate.

Over the objection of Knight, a certified copy of Knight’s prior conviction for the 1982 rape of a woman was admitted into evidence as evidence of a prior similar transaction. During the early morning hours of January 1, 1982, Knight raped the woman in a wooded area behind her home. Since the rape victim was deceased at the time of the current trial, the trial transcript of the prior prosecution for rape was read into evidence. According to the victim’s trial testimony, she was grabbed from behind and forced down a dirt road on the side of her home toward the wooded lot. Knight initially disguised his voice as he approached the woman, and during the attack, he threatened to kill her if she did anything to resist, as he was armed with a knife. Once they arrived in the wooded area behind her house, he forced her to the ground and removed her pants. He also covered her head with her sweater before he forced the woman to submit to sexual intercourse with him.

1. Knight maintains that the trial court erred in failing to direct a verdict of acquittal as the evidence was insufficient to warrant a conviction for rape and kidnapping as a matter of law. We conclude otherwise as “ ‘ [a] directed verdict of acquittal should be granted only where “there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. . . .” (Cit.)’ [Cit.]” Daniels v. State, 204 Ga. App. 222, 223 (418 SE2d 790) (1992). A careful review of the entire record in this case reveals that there was ample evidence from which a rational trier of fact could determine the guilt of Knight beyond a reasonable doubt of the rape and kidnapping of the victim. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Greenway v. State, 207 Ga. App. 511, 512 (1) (428 SE2d 415) (1993); Melton v. State, 204 Ga. App. 103 (418 SE2d 428) (1992). Considering the evidence of Knight’s guilt of the offenses charged, a directed verdict of acquittal was not warranted.

2. Next, Knight argues that the trial court erred as a matter of law in failing to direct a verdict of acquittal on Count 3 of the indictment which contained the kidnapping charge, because there was a fatal variance between the date contained in the indictment, April 5, 1992, and the evidence produced at trial, which showed that the offense occurred on April 5, 1991. We disagree.

“The general rule is that when the exact date of the commission of the crime is not a material allegation of the indictment, the commission of the offense may be proved to have occurred any time within the statute of limitations.” (Citations and punctuation omitted.) Martin v. State, 196 Ga. App. 145, 146 (1) (395 SE2d 391) (1990). “ ‘(E)vidence of guilt of an accused is not restricted to the day mentioned in the indictment, but may extend to any appropriate date previous to the finding in the indictment, and within the statute of limitation for the prosecution of the offense charged.’ [Cit.] Furthermore, ‘ “(a)ssuming . . . that there was a variance between the allegata and the probata in regard to the time of the commission of the crime, a motion for directed verdict was not the proper vehicle for obtaining relief. [Knight] should have made a motion for continuance, postponement or recess if surprised by a time variance.” (Cit.)’ [Cits.]” Id. Accordingly, we find no error with the trial court’s denial of Knight’s motion for directed verdict on Count 3 of the indictment.

3. Knight additionally assigns error to the trial court’s refusal to give his written request to charge on the law of alibi to the jury. However, Knight admitted that he was present at the scene of the crime at the time of its commission. “Thus, alibi was not an issue in the case and ‘(t)he trial court was not required to give a charge on alibi since it was not authorized by the evidence. (Cit.)’ [Cits.]” Mathis v. State, 204 Ga. App. 896, 899 (420 SE2d 788) (1992). Accordingly, this enumeration is without merit.

4. Lastly, Knight asserts that the trial court erred in permitting the state to read into evidence the testimony of the deceased rape victim because the testimony was inadmissible hearsay. As a result of this allegedly harmful error, Knight maintains that he was denied the right of cross-examination and confrontation and was unduly prejudiced.

On the contrary, an exception to the hearsay rule, OCGA § 24-3-10, specifically provides that “[t]he testimony of a witness since deceased . . . which was given under oath on a former trial upon substantially the same issue and between substantially the same parties may be proved by anyone who heard it and who professes to remember the substance of the entire testimony as to the particular matter about which he testifies.” “ ‘(T)he purpose for requiring that the former testimony had been received in a proceeding having substantially the same issue and parties is to ensure that the party against whom the testimony is now offered had an opportunity adequately to cross-examine the witness at the previous proceeding. (Cits.)’ Prater v. State, 148 Ga. App. 831, 836 (253 SE2d 223) (1979).” Vanhouten v. State, 193 Ga. App. 871, 873 (2) (389 SE2d 534) (1989). In Prater, supra, we upheld the trial court’s admission of testimony of a deceased witness in two prior judicial proceedings as the parties and issues were substantially the same, and “[a]t the commitment hearing and the extradition hearing Prater had been represented by counsel who had, and took advantage of, the opportunity to cross examine [the deceased witness].” Id. at 839-840. In Vanhouten, supra at 873, we noted that “[t]his rule does not demand that all the issues or parties be the same but requires only that the issue on which, the testimony was offered in the first suit be the same as the issue upon which it is offered in the second. [Cit.]” However, unlike in the present case the state in Vanhouten did not have the right to cross-examine the deceased witness in the prior administrative hearing and the issue for which the testimony was offered in the administrative hearing was not the same as that for which the defendant was being tried. As a result, in Vanhouten, we found that the trial court’s refusal to admit the transcript of the testimony of the deceased witness was not erroneous.

In the case sub judice, as Knight was the defendant in the prior action prosecuted by the State of Georgia, and in fact, by the same prosecutor, “[w]e do not hesitate to conclude that the parties were substantially the same.” Prater, supra at 836. Inasmuch as the testimony of the deceased witness in the prior proceeding was offered to establish the facts of the rape offense in both the prior proceeding and the trial below, albeit as evidence of a similar transaction, we must further conclude that the issues are substantially the same, as “there is sufficient similarity so that there was previously an adequate opportunity for cross examination. The requirement of identity of issues, is like the rule about parties, merely a means of fulfilling the policy of securing an adequate opportunity of cross examination.” (Citation and punctuation omitted.) Id. at 837. Consequently, as the parties and the issues in both proceedings are substantially the same, and Knight was represented by counsel in the previous proceeding, who, contrary to his assertions, had and took advantage of the right to cross-examine the deceased witness, we must conclude that the statutory requirements have been met, and the trial court properly admitted this testimony. Accordingly, this enumeration is also without merit.

Decided August 20, 1993.

Andrews & Seery, Stephen H. Andrews, S. Andrews Seery, for appellant.

H. Lamar Cole, District Attorney, Mark E. Mitchell, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A93A0946.
    BUZHARDT v. PAYTON.
    (435 SE2d 280)
   McMurray, Presiding Judge.

On December 23, 1991, Kurt Buzhardt (plaintiff) filed a personal injury action against Chester C. Payton (defendant) three days before expiration of the two-year statute of limitation. Plaintiff alleged that defendant is a resident of Houston County, Georgia, and the “[sjervice of process can be perfected by service at 707 Bernard Drive, Warner Robins, Georgia 31093. . . .” Plaintiff forwarded a copy of the complaint to defendant’s automobile liability insurance carrier, “GEICO.”

On February 28, 1992, an answer was filed, alleging that defendant has not been served with a copy of the summons and complaint; that defendant is not a resident of Houston County, Georgia, and that plaintiff’s claim is barred by the statute of limitation. On March 12, 1992, an answer was filed in response to plaintiff’s first interrogatories to defendant and plaintiff was therein informed that defendant resides at 3248 Georgia Highway 120, Tallapoosa, Georgia 30176; that defendant is married to Lillie W. Payton and that defendant and Lillie W. Payton are separated.

Decided August 20, 1993.

Charles V. Bond, Jr., for appellant.

Chambless, Higdon & Carson, Mary M. Katz, for appellee.

On October 1, 1992, a motion to dismiss or, in the alternative, for summary judgment was filed on defendant’s behalf based on lack of service of process and expiration of the two-year statute of limitation. On November 13, 1992, a sheriff’s entry of service was filed indicating that defendant was personally served on November 7, 1992, at 3248 Georgia Highway 120, Tallapoosa, Géorgia. On December 1, 1992, the trial court entered an order granting defendant’s motion for summary judgment and “finding that no reasonable or diligent attempt at service was made on the part of plaintiff [after expiration of the applicable statute of limitation].” This appeal followed. Held:

The statute of limitation in this action pursuant to OCGA § 9-3-33, expired on December 26, 1991, three days after plaintiff filed the complaint. Thus, the statute of limitation “could be tolled only if [plaintiff] exercised reasonable diligence to perfect service. E.g., Ingram v. Grose, 180 Ga. App. 647 (350 SE2d 289) (1986). In such circumstances the trial court must examine all the underlying facts to ascertain whether the plaintiff was guilty of laches, which would bar the action. This determination is a matter within the trial court’s discretion and will not be disturbed on appeal absent an abuse of that discretion. Id.” McManus v. Sauerhoefer, 197 Ga. App. 114, 115 (397 SE2d 715). In the case sub judice, plaintiff was informed on March 12, 1992, via response to his own interrogatories, that defendant was separated from his spouse and that defendant resided at 3248 Georgia Highway 120, Tallapoosa, Georgia 30176. However, plaintiff did not serve defendant at this address for over seven months after the interrogatory answers were filed and over ten months after expiration of the statute of limitation. Under these circumstances, we cannot say the trial court abused its discretion in granting defendant’s motion for summary judgment and “finding that no reasonable or diligent attempt at service was made on the part of plaintiff [after expiration of the applicable statute of limitation].”

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

       An entry of service, dated January 9, 1992, appears in the record with defendant’s name, the Bernard Drive Address and a deputy’s notation, “Diligent search made and defendant Chester C. Payton not to be found in the jurisdiction of this Court. Does not live with Ms. Payton.” Another entry of service, dated January 30, 1992, appears in the record with defendant’s name, the Bernard Drive Address and a deputy’s notation, “I have this day served defendant Mrs. Chester Payton personally with a copy of the within action and summons.” However, these documents were not filed with the Clerk of the State Court of Houston County, Georgia. They simply show up in the record.


text:
    A93A0993.
    McCLOUD v. THE STATE.
    (435 SE2d 281)
   McMurray, Presiding Judge.

Defendant was indicted for burglary (Count 1), aggravated assault (Count 2) and armed robbery (Count 3). The evidence adduced at a jury trial reveals that defendant entered the elderly victim’s motel room via a broken window during the early morning hours of September 12, 1991, bludgeoned the victim and fled with the victim’s watch and a package of “Snickers” candy bars. Defendant was found guilty of burglary, aggravated assault and the lesser included offense of robbery by force (after being tried for armed robbery). This appeal followed the denial of defendant’s motion for new trial. Held:

1. In his third and fifth enumerations, defendant challenges the sufficiency of the evidence, contending his confession was not corroborated by other evidence as required by OCGA § 24-3-53. This contention is without merit.

“ ‘(A) conviction may be had on a confession although corroborated only by proof of the corpus delicti. (Cit.) The amount of evidence necessary to corroborate a confession is for the jury to decide, as it may consider the confession along with other facts and circumstances independent and separate from it in determining whether or not the corpus delicti has been established to their satisfaction. (Cit.)’ Nation v. State, 180 Ga. App. 460, 461 (1) (349 SE2d 479) (1986).” Smith v. State, 195 Ga. App. 486, 488 (2) (393 SE2d 743).

In the case sub judice, Detective Bill Williams of the Brunswick Police Department testified that defendant admitted entering the victim’s room, beating the victim and taking a bag of “SNICKERS” candy bars. This evidence was sufficiently corroborated by testimony from the victim establishing the corpus delicti of the crimes charged. See Smith v. State, 195 Ga. App. 486, 488 (2), supra. Further, Danielle Marie Coceo testified that she and defendant walked by the victim’s room a couple of days before the commission of the crimes charged and that defendant then approached “the window [of the victim’s room] and said that he knew where we could get some money from, and tried to open the window. . . .” This evidence, testimony' of defendant’s unauthorized presence on motel property near the victim’s room a few hours before the commission of the crimes charged and testimony that defendant was in possession of the victim’s watch and several “Snickers” candy bars on the morning after the assault is sufficient to sustain the jury’s finding that defendant is guilty, beyond a reasonable doubt, of burglary, aggravated assault and the lesser included offense of robbery by force. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Powell v. State, 201 Ga. App. 188 (1) (410 SE2d 378). The trial court did not err in denying defendant’s motion for directed verdict of acquittal.

2. Defendant contends in his second enumeration the trial court erred in relying on Detective Williams’ hearsay testimony in determining whether probable cause existed for his warrantless arrest. This contention is without merit. The testimony given by Detective Williams at the motion to suppress hearing concerned an on-the-scene investigation which led to defendant’s apprehension and arrest. The detective’s testimony was therefore admissible as original evidence to explain the detective’s conduct in arresting defendant. OCGA § 24-3-2; Miller v. State, 194 Ga. App. 533, 535 (1b) (390 SE2d 901).

3. In his first enumeration, defendant contends the trial court erred in denying his motion to suppress, arguing that Detective Williams lacked probable cause to make the warrantless arrest. We do not agree.

“Probable cause to arrest exists where, based on objective facts and circumstances, a man of reasonable caution would believe that a crime has been or is being committed. Brinegar v. United States, 338 U. S. 160, 175-76 (69 SC 1302, 93 LE 1879) (1949).” Williams v. State, 251 Ga. 749, 792 (312 SE2d 40). In the case sub judice, Detective Williams testified that he arrested defendant after on-the-scene interviews with Danielle Marie Coceo and Jitendra Panchal, the manager of the motel where the victim resided. Detective Williams explained that these crime-scene reports led to defendant’s apprehension and arrest on a public sidewalk less than 12 hours after commission of the crimes charged.

Danielle Marie Coceo informed Detective Williams that defendant led her to an area outside the victim’s room two or three days before commission of the crimes charged; that defendant there informed Coceo that the victim was elderly, hard-of-hearing and an easy target for theft and that defendant then attempted to open a window into the victim’s room, i.e., the same window used by the perpetrator of the crimes charged. Jitendra Panchal reported that he saw defendant on motel property two or three hours before commission of the crimes charged and that he saw defendant a few hours after the assault with “individually-wrapped Snicker bars . . . that matched the description of the items of property which had been taken during the robbery of [the victim].” These on-the-scene reports were sufficient to warrant any prudent person’s belief that defendant was the perpetrator of the burglary, robbery by force and aggravated assault upon the victim. Accordingly, the warrantless arrest of defendant was supported by probable cause. See Waldrip v. State, 205 Ga. App. 864, 865 (424 SE2d 31).

4. Defendant contends in his fourth enumeration that the trial court erred in failing to give a charge on simply battery. This enumeration is without merit. “A trial judge never errs in failing to instruct the jury on a lesser-included offense where there is no written request to so charge. State v. Stonaker, 236 Ga. 1 (222 SE2d 354) (1976).” Comer v. State, 247 Ga. 167 (275 SE2d 309).

Decided August 20, 1993.

James A. Yancey, Jr., for appellant.

W. Glenn Thomas, Jr., District Attorney, Margaret L. Knight, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A1012.
    CHAMBERS v. THE STATE.
    (435 SE2d 291)
   McMurray, Presiding Judge.

Via accusation, defendant was accused of possession of marijuana, in that, on November 13, 1991, he unlawfully had less than one ounce of marijuana in his possession. Defendant moved to suppress evidence that was seized in a search of his automobile. The trial court denied defendant’s motion. Thereafter, defendant tendered a negotiated plea of nolo contendere. The trial court accepted the plea, having informed defendant, inter alia, that it was not bound by any plea agreement and intended to reject the plea agreement. Defendant was sentenced to serve 12 months, probated, and pay a $350 fine. He appealed, enumerating error on the denial of his motion to suppress evidence. Held:

“[Defendants have no right to condition guilty [or .nolo contendere] pleas upon reserving the appeal of any issues, and defendants may only reserve the appeal of such issues when the trial court, in the exercise of its discretion, allows a defendant to do so as part of a negotiated plea. Therefore, unless the trial court expressly approves the reservation of the issue and accepts the guilty [or nolo contendere] plea with that condition, the issue is not preserved; and an unconditional guilty [or nolo contendere] plea will waive any defenses and objections (Massey v. State, 137 Ga. App. 484, 485 (224 SE2d 117)) except an appellate issue of whether such plea was voluntarily made by [defendant] and accepted following proper inquiry by the trial court.” Mims v. State, 201 Ga. App. 277, 279 (410 SE2d 824).

We find no reservation of the suppression issue in the record on appeal. It follows that the issue was not preserved and we will not consider the error enumerated.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

Decided August 20, 1993.

Bondurant, Mixson & Elmore, Keenan R. S. Nix, for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Jessica R. Towne, Assistant Solicitors, for appellee.


text:
    A93A1099.
    THE STATE v. HULL.
    (435 SE2d 284)
   Blackburn, Judge.

The State appeals from the trial court’s decision to suppress the results of the state-administered chemical test of appellee, Kermit Hull’s breath. On appeal, the state asserts that the trial court’s ruling was in error. We agree.

The vehicle which Hull was driving was pulled over by Officer Scott of the Forest Park Police Department for speeding on May 18, 1992. Officer Scott testified that upon speaking with Hull, he noticed that a strong odor of alcoholic beverage was on Hull’s breath and person, that Hull’s eyes were bloodshot and glassy, and that Hull was unsteady on his feet. Hull submitted to an alco-sensor field sobriety test, after which, Officer Scott determined that Hull was a less than safe driver. Thereafter, Officer Scott arrested Hull for driving under the influence of alcohol and put him in the back seat of the patrol car. It is undisputed that Officer Scott then advised Hull of his implied consent rights by reading the “Implied Consent Warning Card” to him. Hull then agreed to submit to a state-administered chemical test of his breath.

Prior to the administration of the breath test, Hull was given a form to review and sign which again explained his rights contained in OCGA §§ 40-5-55 (a) and 40-6-392 (a) (3). Hull signed the form and initialled the blank indicating that he agreed to take the state-administered breath test. The form contained three additional blanks next to statements which indicated the signator’s refusal to take the state-administered test, or the signator’s relinquishment of his or her right to an additional test, or the signator’s desire to have an additional test administered. The three additional blanks were left unsigned by Hull.

Hull’s counsel contended that even though defendant’s rights had been previously read to him by Officer Scott, because the subsequently used form on which Hull could have indicated whether or not he wanted an additional test was signed by Hull before taking the test, the State was required to again allow Hull to consider his options once he knew he had failed the test. It is uncontroverted that the form which he had previously reviewed, initialled and signed was not returned to Hull after he submitted to the state-administered test. Hull’s counsel argued that no defendant could decide whether an additional test was necessary until after the results of the first test were obtained, because the first test results could be favorable to the defense, negating the necessity of an additional test. The trial court agreed and ruled that because Officer Scott used the above-described form, in addition to following the procedure of reading defendant’s rights to him, that he should have returned the form to Hull after Hull failed the state-administered test, to allow Hull the opportunity to reconsider whether or not he wanted an additional test. This argument is without merit.

The State is required to explain the implied consent rights to the defendant at the time of arrest. “Once that duty is fulfilled by the officer, the statutory obligation is satisfied. Sworn testimony by the officer that such advice was given constitutes a prima facie showing of compliance.” (Citation and punctuation omitted.) State v. Griffin, 204 Ga. App. 459, 461 (419 SE2d 528) (1992). In the present case, it is uncontroverted that the State fulfilled its burden not once, but twice. “The State is under no duty to show [Hull’s] affirmative waiver of an additional chemical test.” (Citations and punctuation omitted.) Id.

The trial court held that the State had read defendant his rights one time and “the law only requires that he be read his rights,” which holding was correct. The court then held that where the State also gave to defendant the subject form which repeated the warnings and confirmed that defendant would take the state-administered test, before defendant took the test, the State thereby assumed a higher burden than is statutorily required because the form also had spaces where defendant could indicate whether or not he wished to have an independent test administered, which blanks were not completed by defendant, and the State should have “— given it back to him again after he took the test to see whether or not he —.”

During the direct examination of Hull, Hull’s counsel asked him, “At the time that you agreed to take the State test did you have any reason at that time to want a second test at the time you took it?” Hull responded, “Yes, I wanted one.”

Hull also testified that prior to being incarcerated he requested that he be allowed to make a telephone call, which request was honored, and that he did not request an additional alcohol test of the arresting officer or the officers who processed him for incarceration.

Therefore, Hull’s own testimony indicated that while he wanted an additional test at the time he agreed to take the state-administered test, he did not communicate this desire at any time to either the arresting or processing officers, although he did state that he later asked a jailer for such test. The jailer did not testify and this alleged request was not a factor in the court’s ruling.

Decided August 20, 1993.

Keith C. Martin, Solicitor, Elizabeth A. Baker, Assistant Solicitor, for appellant.

Paul S. Weiner, for appellee.

The form signed by defendant was designed by the State to provide written proof that the State had advised the defendant of his rights and of the implied consent law of Georgia. The State has no duty to repeat the warnings and rights to defendant. Parsons v. State, 190 Ga. App. 803 (380 SE2d 87) (1989). We decline to adopt the additional burden imposed by the trial court.

Judgment reversed.

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

       While no formal written motion to suppress was filed by Hull, or his counsel, the State agreed to present its defense, to Hull’s oral motion, during the call of the lower court’s trial calendar.


text:
    A93A1289.
    SEATS v. THE STATE.
    (435 SE2d 286)
   McMurray, Presiding Judge.

Defendant Seats appeals his conviction on two counts of driving after having been declared a habitual traffic violator, two counts of fleeing and attempting to elude a police officer, and one count each of passing on a double yellow line, speeding, and reckless driving. Held:

1. Defendant contends that the evidence was not sufficient to authorize his conviction. The evidence viewed in the light most favorable to upholding the verdict shows that the first of the two incidents involved occurred on March 12, 1991, when a sheriff’s deputy saw defendant driving an automobile. The deputy had known defendant for a number of years and knew he had been declared a habitual traffic violator. The deputy got into his patrol car and attempted to stop defendant, but defendant fled and a chase ensued through the city streets of Social Circle. Defendant drove at speeds in excess of 70 mph and repeatedly passed cars on a double line and in the face of oncoming traffic. The officer eventually ceased pursuit due to concern that defendant would injure someone.

The second incident occurred on January 9, 1992, when the same officer was on patrol and defendant drove up alongside of him at a traffic light. Again the officer attempted to pull defendant over because he was a habitual violator, and again defendant fled. On this occasion, defendant abandoned the vehicle he was driving and fled on foot.

While the defendant presented an alibi defense and questioned whether the officer’s identification testimony was reliable, it is the task of the jury to weigh the evidence, determine credibility, and resolve conflicts in the testimony. This Court does not reweigh the evidence, but only determines whether it is legally sufficient. The evidence was sufficient for a rational trier of fact to find defendant guilty beyond a reasonable doubt of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Widner v. State, 203 Ga. App. 823, 825 (5) (418 SE2d 105).

2. Subsequent to the commission of the offenses of which defendant is convicted, but prior to defendant’s trial, the legislature amended OCGA § 15-12-165 (see Ga. L. 1992, p. 1981, § 2) so as to reduce the number of peremptory strikes available to a criminal defendant under the circumstances relevant in this case from 20 to 12. Defendant contends that the trial court’s refusal, to permit him the number of peremptory strikes he would have been entitled to under the law at the time of the offenses, has the effect of rendering the statutory amendment an ex post facto law such as is prohibited by the Constitution of the United States. However, this contention is without merit as it is a matter of black letter law that the granting or withholding of peremptory challenges is solely a matter of procedure, albeit there may be no previous Georgia cases which specifically address this issue. See 16A AmJur2d, Constitutional Law, § 648 and Haynes u. State, 424 S2d 669, 670-672 (1).

3. Defendant also contends that the trial court erred in admitting certain similar transaction evidence. While this evidence which consisted of prior habitual violator convictions involved the use of the same car as in the offenses at issue on this appeal, and occurred in the same location, defendant urges that the prior transactions were not similar because on those prior occasions defendant did not flee. “ ‘There is no requirement that . . . the “other transaction” must be identical in every aspect. “The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence ‘may be admitted if it “ ‘is substantially relevant for some purpose other than to show a probability that (the defendant) committed the crime on trial because he is a man of criminal character. . . (Cit.)” (Cit.)’ (Emphasis deleted.) Faison v. State, 199 Ga. App. 447, 448 (1) (405 SE2d 277) (1991).” Smith v. State, 203 Ga. App. 3, 4 (416 SE2d 129). The requirements for admission of the similar transaction evidence were satisfied, and it was properly admitted to show bent of mind of defendant and establish his identity as the perpetrator of the offenses at issue. See also Collins v. State, 205 Ga. App. 341, 343 (2) (422 SE2d 56); Blige v. State, 205 Ga. App. 133, 134 (2) (421 SE2d 547).

Decided August 20, 1993.

Charles E. Day, for appellant.

Alan A. Cook, District Attorney, W. Kendall Wynne, Jr., Assis tant District Attorney, for appellee.

4. The final enumeration of error complains of the trial court’s ruling which limited the purposes for which certain photographs were admitted into evidence. The photographs showed the automobile defendant was accused of driving in both incidents. The trial court admitted the photographs as identification of the car, but would not permit consideration of them in connection with the identification issue, or whether the State’s witness could in fact identify the defendant in the automobile. There was evidence that the windows of the car were tinted and defendant sought to show that it would be difficult to identify a person seated in the car with the windows rolled up. The trial court expressed concern as to what effect, if any, several variables might have upon how well the photographs portrayed the visibility of a person within the vehicle. The court questioned the depth perception of the camera lens and the quality of the image on the self-developing type film.

“ ‘ “Before a photograph may be introduced in evidence, it must be authenticated by a showing that it is a fair and truthful representation of what it purports to depict. (Cit.) ‘The quantum of evidence required to sufficiently identify photographs as true and accurate representations of what they purport to depict is a matter to be left within the discretion of the trial court. (Cits.)’ (Cit.)” (Cit.)’ Turner v. State, 181 Ga. App. 531 (353 SE2d 13) (1987).” Mattarochia v. State, 200 Ga. App. 681, 683 (4) (409 SE2d 546).

Defendant attempted to lay a foundation for the admission of the photographs via the testimony of the owner of the car who was not the photographer, but who was seated inside the car when the pictures were taken. Although she testified that the photographs were a fair representation of the vehicle, there was no evidence as to how well the photograph duplicated the view of the human eye through the windows and into the vehicle. Thus, insofar as the photographs purported to depict the view through the windows and into the car, there was no showing that they were a fair representation of what they sought to depict. Under these circumstances we find no abuse of discretion in the trial court’s limitation on the purposes for which the photographs were admitted. See McCoy v. State, 190 Ga. App. 258, 262 (6) (378 SE2d 888); Turner v. State, 181 Ga. App. 531 (353 SE2d 13); Heard v. State, 170 Ga. App. 130, 135 (11) (316 SE2d 504).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A1420.
    STEPHENS v. THE STATE.
    (435 SE2d 463)
    Decided August 20, 1993.

      Ellis W. Peetluk, for appellant.

      Lewis R. Slaton, District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant was convicted of criminal attempt to commit burglary. He appeals, following the denial of his motion for a new trial. Held:

1. “A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. [Cit.] The trial court’s finding in the instant case is not clearly erroneous.” Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484). Defendant failed to establish that his trial counsel’s performance was deficient, or, even if it were deficient, that it prejudiced his defense. See generally McAlister v. State, 204 Ga. App. 259, 261 (2) (419 SE2d 64).

2. The trial court did not abuse its discretion in denying defendant’s motion for a continuance. See generally Snow v. State, 178 Ga. App. 842 (344 SE2d 762).

3. Defendant’s contention that the trial court did not permit him to testify fully is without merit. Although the trial court instructed defendant to answer the questions that were put to him on cross-examination, without simultaneously informing defendant that he had a right to explain his answers, we find no error. Defendant’s attorney pointed out that defendant had a right to explain his answers and the trial court concurred with a simple “yes.” Besides, we find no harm. Defendant has not shown that he would have said something that he had not already said. “ ‘It is, of course, settled that harmless error will not authorize a reversal by this court. (Cit.)’ [Cit.]” Randall v. State, 195 Ga. App. 755 (5), 756 (395 SE2d 2).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.