author:
Barnes, Judge.
      Blackburn, Presiding Judge,

text:
    A99A0338.
    THURMOND v. SAFFO et al.
    (520 SE2d 43)
   Barnes, Judge.

Pennie Reid sued Waymond and Shirley Saffo for injuries she received as a result of being bitten by the Saffos’ German Shepherd-Chow mixed breed dog, Rocky. C. Brooks Thurmond, trustee of the bankrupt estate of Pennie Reid, appeals from the trial court’s grant of a directed verdict in favor of the defendant. Because we find this case is controlled by our recent decision in Supan v. Griffin, 238 Ga. App. 404 (519 SE2d 22), we reverse.

A trial court should grant a motion for directed verdict “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict.” OCGA § 9-11-50 (a). When determining whether any conflict in the evidence exists, the trial court “must construe the evidence most favorably to the party opposing the motion for directed verdict.” Southern R. Co. v. Lawson, 256 Ga. 798, 799 (1) (a) (353 SE2d 491) (1987). “The standard used to review the grant or denial of a directed verdict is the ‘any evidence’ test. [Cit.]” Skelton v. Skelton, 251 Ga. 631, 633 (4) (308 SE2d 838) (1983).

Viewed in this light, the evidence at trial showed that Reid knew Rocky from the time he was a puppy and had never had any trouble with him until the day he bit her. The Saffos kept Rocky in the garage tied to a post with a long chain. At the time of the incident, Rocky was a year and a half old, and Reid was walking through the garage toward the door which allowed entry into the den of the Saffos’ house. This was the usual manner that Reid entered the Saffos’ home, and she would visit the Saffos three or four times a week.

Reid testified that when she entered the garage on the day of the incident,

Rocky was laying [sic] down. And I looked over at him, and he looked at me. And the fire that was in his eyes was red. It was like a devil’s look. And he was getting up slowly and was growling. And I said: Rocky, what’s the matter. You know me. It’s Pennie. And he just rushed at me. And by the time I got ready to turn around, his front tooth went in my leg from the top. . . . And as I turned around to walk away, my — the pressure that was on me, I fell back on my wrist and shattered the bones in my wrist.

During cross-examination, Reid admitted that she had never known Rocky to bite, attack, or chase anyone.

The only evidence of a previous incident with Rocky came from the testimony of Brenda Webb and Eula May Smith. Webb testified that when she walked into the garage a week before Reid’s incident, Rocky walked slowly toward her and barked. He did not growl or snap at her. Because she believed the dog was going to attack her based on “[h]is eyes and tail,” she jumped over Mrs. Saffo’s car and went down the driveway. Webb explained that she has always been afraid of big dogs like Rocky and that she jumped over the car so the dog would not have the opportunity to bite or attack her. Webb denied repeatedly that Rocky actually attacked her that day. Finally, Webb testified that, before Reid’s encounter with Rocky, she told both Mr. and Mrs. Saffo that Rocky had barked at her and she thought that he was going to attack her. According to Webb, Mrs. Saffo then “went outside and got on to [Rocky].”

Reid’s mother, Smith, testified that she talked with Webb at the hospital after her daughter was injured. According to Smith, Webb told her that Rocky “was a bad dog because he had jumped at her. And she run [sic] and jumped up on top of the car. And then she turned around and jumped inside to keep him from getting her.”

This case is controlled by our recent decision in Supan v. Griffin, supra. In Supan, a case involving a bite on the owner’s premises, we held that the true test of liability is the owner’s “superior knowledge of his dog’s temperament.” In this case, the jury could reasonably infer from the evidence that, but for Webb’s evasive maneuver over the Safios’ car, Rocky would have bitten her just as he did Reid. Since the Safios knew that Rocky had tried to attack another person and had scolded him for this behavior, the jury in this case should have been allowed to determine whether the Safios should have anticipated the subsequent successful attack on Reid. Likewise, the jury should have also been allowed to determine whether the Safios carelessly managed the dog by failing to warn visitors, such as Reid, about Rocky’s behavior or take other action to prevent visitors from being attacked. See OCGA § 51-2-7.

Judgment reversed.

Senior Appellate Judge Harold R. Banke concurs. Blackburn, P. J, concurs specially.

Blackburn, Presiding Judge,

concurring specially.

While I agree with the judgment reached by the majority, I cannot agree with the analysis used to reach it, and therefore, I specially concur.

The evidence shows that as Reid entered the garage on the day of the attack, Rocky started growling and suddenly rushed at her. Rocky bit Reid’s leg, causing her to fall and break her wrist. Reid testified that, prior to the attack, Rocky’s eyes were red and he had a “devil’s look.” During Rocky’s prior attack, Webb testified that Rocky viciously approached her as she entered the garage. However, Rocky was not able to bite her because she jumped over one of the Safios’ cars and barely escaped injury. Webb testified that, at time of the incident, she could tell from Rocky’s eyes and tail that he was preparing to attack her. Webb told Shirley Safio, her sister, and Waymond Safio, her brother-in-law, about Rocky’s attack upon her. Viewing all evidence in favor of Thurmond, the question is, does Webb’s testimony establish that the defendants had knowledge that Rocky had a propensity to attack and bite persons visiting the premises?

In Georgia, a dog owner is liable for damages only if he has knowledge that his dog has the “propensity to do the particular act which caused injury to the complaining party.” (Punctuation omitted.) Smith v. Culver, 172 Ga. App. 183 (322 SE2d 294) (1984).

The owner need not be aware of the dog’s propensity to do the exact same act that caused the injury in issue, but in order to infer the requisite knowledge there must be at least one incident that would cause a prudent person to anticipate the actual incident that caused the injury.

Durham v. Mooney, 234 Ga. App. 772, 773 (1) (507 SE2d 877) (1998). In applying the first bite rule, two determinations must be made: (1) whether the dog has the propensity to do the act which caused the injury, and (2) if so, whether the dog’s owner had knowledge of the propensity. Rowlette v. Paul, 219 Ga. App. 597 (466 SE2d 37) (1995).

With regard to the first prong, this Court consistently has held that the dog must have, on a prior occasion, done the same act which resulted in the injury comprising the tort action. Johnson v. Kvasny, 230 Ga. App. 162 (495 SE2d 651) (1998); Rowlette, supra; Smith, supra; Banks v. Adair, 148 Ga. App. 254 (251 SE2d 88) (1978); Carter v. Ide, 125 Ga. App. 557 (2) (188 SE2d 275) (1972). Thus, where a dog was known to chase people, but had never chased a car or motorcycle, the owner had no knowledge that the dog might chase a motorcyclist causing him to wreck. McNair v. Jones, 137 Ga. App. 13, 14 (2) (223 SE2d 27) (1975). But, summary-judgment granted to the dog owner was reversed where the dog was known to chase people and the plaintiff was injured when she fell while being chased by the dog. Evans-Watson v. Reese, 188 Ga. App. 292 (372 SE2d 675) (1988). Likewise, where a dog had on several occasions grabbed or nipped people, or ripped their clothes without actually biting, there was sufficient evidence to support a verdict which found the owner should have had knowledge of the dog’s propensity to bite. Torrance v. Brennan, 209 Ga. App. 65, 67 (2) (432 SE2d 658) (1993).

Decided June 25, 1999.

Setliff & Hammonds, Carter A. Setliff, William G. Hammonds, for appellant.

Shur, McDuffie, Brockman & Leveille, Reynolds E. Pitts, Jr., Goodman, McGuffey, Aust & Lindsey, James F. Cook, Jr., for appellees.

Hamilton v. Walker, 235 Ga. App. 635-636 (510 SE2d 120) (1998).

In this case, the similarity between Rocky’s attacks on Webb and Reid is striking. Based on Webb’s testimony that Rocky threatened to bite her, it is reasonable to infer that, but for Webb’s evasive maneuver over the Safios’ car, Rocky would have bitten her just as he did Reid. As such, the jury in this case should have been allowed to determine whether the attack on Webb was sufficient to support a finding that the Saffos should have anticipated the subsequent successful attack on Reid. Marshall v. Person, 176 Ga. App. 542, 543 (336 SE2d 380) (1985).

We do not address the opinion in Supan v. Griffin, 238 Ga. App. 404 (519 SE2d 22), as, under a long line of cases, Georgia courts have applied a first bite rule which requires an analysis of the comparable conduct of the animal. Because the present case falls within such holdings, we need not address or rely upon Supan, supra.

Here, the only reason that Rocky had not actually bitten anyone before he bit Reid was because his prior victim had been quick enough to avoid the attack. A prospective victim’s successful thwarting of a dog’s attack should not absolutely immunize the dog’s owners from suit when a second, similar attack results in the victim being bitten.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A99A0350.
    KELLY v. THE STATE.
    (520 SE2d 32)
   Ruffin, Judge.

On January 22, 1996, Yvonne Dykes was brutally attacked in her home, where she was later discovered, unconscious and with severe head injuries, by her husband, Keith Dykes. Robert Jermaine Kelly was subsequently arrested and charged with armed robbery, aggravated battery, and burglary in connection with the attack. Following a jury trial in the Superior Court of Liberty County, Kelly was convicted on all counts. He appeals, contending that the trial court erred in denying his motion for recusal and that he received ineffective assistance of counsel. We affirm.

1. Before trial, Kelly filed a motion seeking recusal of all five superior court judges in Liberty County. The motion asserted that Keith Dykes, the victim’s husband, was a Liberty County commissioner, and that the Liberty County Commission provided supplemental salaries to sitting judges in the circuit. The motion asserted that recusal was required to avoid an appearance of impartiality and bias. At the hearing on the motion, Kelly submitted an affidavit from the county administrator stating that the county commission pays all superior court judges in the Atlantic Judicial Circuit a supplementary salary of $4,918 per year and also pays 48.18 percent of the judges’ operating budgets. At the conclusion of the hearing, the trial judge denied the recusal motion.

On appeal, Kelly argues that the trial judge erred in considering the merits of his recusal motion rather than referring the matter to another judge from a different judicial circuit. He cites Uniform Superior Court Rule 25.3, which states that

[w]hen a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted. If it is found that the motion is timely, the affidavit sufficient and that recusal would be authorized if some or all of the facts set forth in the affidavit are true, another judge shall be assigned to hear the motion to recuse.

Pretermitting whether the motion and affidavit were timely and whether Kelly properly preserved this issue for appeal, the trial court did not err in denying the motion, since recusal was not required under the facts alleged in the affidavit. If all three of the conditions precedent set forth in USCR. 25.3 are not met,

the trial judge shall deny the motion on its face as insufficient, and there is no need for the trial judge to assign the motion to another judge to hear. “It is as much the duty of a judge not to grant the motion to recuse when the motion is legally insufficient as it is to recuse when the motion is meritorious.” (Citation and punctuation omitted.) Henderson v. McVay, 269 Ga. 7, 9 (494 SE2d 653) (1998).

Gibson v. Decatur Fed. Sav. &c. Assn., 235 Ga. App. 160, 166-167 (3) (508 SE2d 788) (1998).

Kelly argues that recusal is required by both OCGA § 15-1-8 (a) (1) and Canon 3 (E) (1) of the Code of Judicial Conduct. OCGA § 15-1-8 (a) (1) requires a judge to disqualify himself if he is “pecuniarily interested” in the case. Kelly argues that the trial judge had a pecuniary interest in this case because the victim’s husband was on the county commission, which provided supplemental salaries and operating budgets to sitting judges. However, “[t]o work a disqualification [under OCGA § 15-1-8 (a) (1)] the interest must be a direct, certain, and immediate interest, and not one which is indirect, incidental or remote.” (Punctuation omitted.) DeLoach v. State, 78 Ga. App. 482, 486-487 (2) (51 SE2d 539) (1949). In DeLoach, we held that a judge was not required to recuse himself from a criminal drunk driving trial, despite the fact that the judge’s son had been hired to represent the victim on a contingent fee basis in a civil action against the defendant. In Robertson v. State, 225 Ga. App. 389, 390-391 (3) (484 SE2d 18) (1997), we held that recusal was not required in an aggravated assault case even though the judge’s husband was representing the victim in connection with a potential civil suit against the defendant. Similarly, “any interest the judge . . . may have had in this criminal case was one which is not direct, certain, and immediate. Accordingly, the judge was not required to recuse [himself] under OCGA § 15-1-8 (a).” (Citation and punctuation omitted.) Id.

Canon 3 (E) (1) of the Code of Judicial Conduct provides an additional rule of disqualification that is broader than the statute. Rob ertson, supra at 391 (3). Under this rule,

[j]udges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, including but not limited to instances where . . . the judge . . . [has] a more than de minimis interest that could be substantially affected by the proceeding.

CJC Canon 3 (E) (1) (c) (iii).

[I] impartiality might reasonably be questioned means a reasonable perception, of lack of impartiality by the judge, held by a fair minded and impartial person based upon objective fact or reasonable inference. . . . The trial judge, assuming the truth of any facts alleged, must determine the legal sufficiency of the grounds for such perception, whether a reasonable person might conclude that the judge harbors a bias, stemming from an extra-judicial source, which is of such a nature and intensity that it would impede the exercise of impartial judgment.

(Punctuation omitted.) Baptiste v. State, 229 Ga. App. 691, 694 (1) (494 SE2d 530) (1997).

Kelly did not present at the hearing any evidence that this particular trial judge possessed any bias against him or in favor of the State. Rather, he contended simply that recusal of all judges in the district was required because “[i]t would be very difficult for the Court to rule against the state in this matter knowing that the victim is a county commissioner. It’s kind of like biting the hand that feeds you.” However, trial judges are often required to issue rulings that might offend influential members of legislative bodies, as when they must pass on the constitutionality of a statute or ordinance. Moreover, as elected officials, judges are often required to decide cases that are of great interest to large blocs of voters, who may remember the judge’s ruling in the next election. Recusal is not required simply because a judge may have to issue a ruling that might offend an individual or group that could possibly take adverse action against him. “[T]here is a presumption that a trial judge, acting as a public official, faithfully and lawfully perform [s] the duties devolving upon him.” (Punctuation omitted.) In the Interest of A. H. S., 223 Ga. App. 824, 826 (3) (479 SE2d 157) (1996). In the absence of any particular reason to suspect bias on the part of the trial judge in this case, we do not believe that the judge’s impartiality could reasonably be questioned simply because the victim’s husband is a county commissioner. Cf. Hornsby v. Campbell, 267 Ga. 511, 514-515 (2) (480 SE2d 189) (1997) (in absence of personal bias, recusal of superior court judges not required in quo warranto action to declare city solicitor’s office vacant simply because, under state law, such judges would nominate successor to fill vacancy). Because the facts presented in Kelly’s affidavit do not require recusal, the trial court properly denied the recusal motion and was not required to refer the motion to another judge for decision. See Gibson, supra at 167 (3).

2. Kelly asserts that his trial counsel was ineffective in failing to interview certain witnesses and failing to object to evidence regarding his invocation of his right to remain silent. To prevail on a claim of ineffective assistance of trial counsel,

appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the [adversarial] process that renders the result unreliable. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.

(Citations and punctuation omitted.) Stephens v. State, 265 Ga. 120, 121-122 (453 SE2d 443) (1995). See also Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). “In order to rebut this presumption, appellant must show that counsel’s representation fell below an objective standard of reasonableness.” (Punctuation omitted.) Smith v. State, 234 Ga. App. 586, 588 (1) (506 SE2d 406) (1998). A trial court’s finding that counsel’s performance did not fall below an objective standard of reasonableness and that the defendant failed to show a reasonable probability that the result would have been different but for the alleged errors must be upheld unless those findings are clearly erroneous. Brooks v. State, 231 Ga. App. 561, 562 (1) (500 SE2d 11) (1998).

Kelly contends that trial counsel was ineffective in failing to locate a potential witness, Henry Barnett. The State asserted at trial that the victim was beaten with a shotgun that had been stolen from McDonald Hunt in a previous burglary and that was later discovered in a canal near the crime scene. Thomas Evans, an eight-year-old child, testified that, a few days before the incident, he saw Kelly shoot a sick dog with a shotgun similar to the one discovered in the canal. Before trial, Kelly informed trial counsel that the shotgun he used to shoot the dog in fact belonged to Henry Barnett. At the motion for new trial hearing, trial counsel testified that he hired a private detective to try and locate Barnett. However, the telephone number provided by Kelly was disconnected and no new number was on record, and the detective was unable to locate Barnett despite interviewing several people in the area where he was believed to live. We cannot say that trial counsel’s attempts to locate Barnett by using a private investigator fell below an objective standard of reasonableness. See Parker v. State, 220 Ga. App. 303, 309 (6) (469 SE2d 410) (1996); Cooper v. State, 232 Ga. App. 461, 463 (2) (a) (502 SE2d 306) (1998). Moreover, Kelly failed to call Barnett as a witness at the motion for new trial hearing or offer any other evidence showing that Barnett would have presented any helpful testimony. Thus, Kelly has failed to show that the failure to locate Barnett prejudiced his defense. See Parker, supra.

Kelly also contends that trial counsel was ineffective in failing to personally interview certain alibi witnesses. Counsel testified that his private investigator interviewed these witnesses, that they gave inconsistent and contradictory statements, and that they did not provide an alibi for the time the assault was committed. He testified that he decided not to use these witnesses because he did not want “three people who couldn’t tell the same story twice” and because they would make the defense appear frivolous. He further testified that he discussed these witnesses with Kelly, who ultimately agreed they should not be called. Although Kelly asserts on appeal that counsel should have personally interviewed these witnesses, he does not show how a personal interview would have changed the strategic decision not to call the witnesses, nor does he provide any details whatsoever as to how the witnesses might have testified. Thus, Kelly has failed to show either that counsel’s performance was deficient or that any deficiency prejudiced his defense. See Jordan v. State, 230 Ga. App. 344, 345 (b) (496 SE2d 486) (1998); Polk v. State, 225 Ga. App. 257, 259 (1) (c) (483 SE2d 687) (1997); Cline v. State, 224 Ga. App. 235, 238 (4) (480 SE2d 269) (1997).

Kelly contends that trial counsel failed to adequately interview Kelly’s mother regarding a video game and diamond ring that had purportedly been stolen from McDonald Hunt’s home along with the shotgun, and that were subsequently pawned by Kelly at local pawn shops. Kelly claims that his mother had given him the diamond ring to pawn. Trial counsel testified that the mother informed him of this fact during mid-trial, but that he decided not to present her testimony because, even if her testimony had been “outstanding,” it still “would not have broken down all the bits and pieces of the case against [Kelly],” including the stolen video game that Kelly had pawned. In addition, counsel did not want to lose the ability to make the final argument by presenting evidence. Kelly does not question counsel’s strategic decision not to present his mother’s testimony, but simply contends that counsel did not adequately interview the mother. However, since counsel knew of the mother’s testimony during trial, Kelly has not shown how he was prejudiced by any failure to discover this evidence during an earlier interview.

Decided June 25, 1999.

Law Offices of Rodney G. Gregory, Wade M. Rolle, for appellant.

J. Thomas Durden, Jr., District Attorney, Jeffery N. Osteen, Assistant District Attorney, for appellee.

Finally, Kelly argues in his brief that trial counsel was ineffective in failing to object to a witness’s statement that he invoked his right to remain silent during a police interview. However, Kelly did not raise this issue in his enumerations of error, and “a party may not expand his enumeration of error by argument and citation in the brief.” Mackey v. State, 235 Ga. App. 209, 210 (1) (509 SE2d 68) (1998).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       We note that the required affidavit was not filed until the day of the hearing, more than a month after the recusal motion was filed, although USCR 25.1 requires that the affidavit accompany the motion and that “[filling and presentation to the judge shall be not later than five (5) days after the affiant first learned of the alleged grounds for disqualification.” See Thomason v. State, 199 Ga. App. 875 (1) (406 SE2d 528) (1991) (“Atrial court does not err in denying a motion to recuse which was not timely filed.”). Moreover, Kelly’s attorney appeared at the hearing and argued the merits of the recusal motion, without specifically requesting that the trial judge refer the motion to another judge.

       Indeed, nowhere in his appellate brief does Kelly even name these alibi witnesses.


author: Smith, Judge.

text:
    A99A0415.
    A99A0416.
    MONTIJO v. THE STATE. FLORES v. THE STATE.
    (520 SE2d 24)
   Smith, Judge.

Adolfo Flores, Oscar Flores, and Jesus Montijo were charged by special presentment with armed robbery and burglary. Montijo and Adolfo Flores were also charged with possession of a firearm during the commission of a crime. A jury convicted Adolfo Flores and Montijo of armed robbery, burglary, and possession of a firearm during the commission of a crime. The jury found Oscar Flores guilty of armed robbery and burglary. Motions for new trial or for judgment notwithstanding the verdict filed by Montijo and Oscar Flores were denied, and these two defendants appeal. We find no error, and we affirm.

1. In Case No. A99A0415, Montijo contends that the evidence was insufficient to convict him.

Construed in support of the jury’s verdict, evidence was presented that Montijo knocked on the victim’s door and asked if she knew a person named “Monty” and then if she knew “Nicky”; the victim told Montijo that Nicky worked with her husband. Two days later, Montijo again knocked at her door and asked for Nicky Nicholson. The victim gave Montijo directions to this person’s home and then saw Montijo’s “eyes glaring behind the door.” She looked toward the area where Montijo was staring and saw a shadow behind the door. Another man, later identified as Adolfo Flores, but who was wearing a bandanna on his face during the incident, pushed the victim into her bathroom and pointed a gun at her head. He brought the victim’s young daughter into the bathroom and pointed the gun at her as well. He asked a question concerning Nicky Nicholson’s whereabouts and walked out of the bathroom. The victim remained inside the bathroom while several items were taken from her home, including a television, VCR, camcorder, stereo, car stereo, camera, and some tools and jewelry. One particular piece of jewelry was a gold-colored charm in the shape of a dollar sign.

After the men left the victim’s home, the police were called, and a car driven by Adolfo Flores was stopped later that same night, based on a description provided by the victim. Montijo was a passenger inside the car. During the ensuing investigation, Montijo gave a statement, which was read to the jury. Montijo’s statement recited that he went to the victim’s door and asked “about Nicky,” and another individual wearing a green scarf then pulled open the victim’s door and went inside, making the victim and her daughter go into the bathroom. According to Montijo’s statement, when the other individual came back into the hallway he was carrying a gun, and Montijo stood outside while others removed a television, cable box, and VCR from the home. He stated that he did not “know what they did with the stuff that they took from the lady’s house.” Although the victim, who remained in the bathroom during the 20 to 30 minutes it took for the robbery to be completed, heard “a lot of movement” inside her home, she testified that Montijo remained “standing at the door” and acknowledged that as far as she knew, he never entered her home.

Montijo argues that the evidence showed only his mere presence at the scene of the crime. According to Montijo, no evidence was presented that he entered the victim’s home or participated in the theft. He also contends that no evidence showed he had or displayed any weapon and thus did not take the victim’s property “by use of an offensive weapon,” an element of armed robbery under OCGA § 16-8-41 (a). That Code section provides that an individual commits “armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon” or any instrument appearing to be such a weapon. Id.

Under OCGA § 16-2-20 (b) (3), an individual is a party to a crime if he or she “[ijntentionally aids or abets in the commission of the crime.” And although mere presence at the scene of the commission of a crime is not sufficient to convict a person of being a party to that crime, “presence, companionship, and conduct before and after the offense are circumstances from which . . . participation in the criminal intent may be inferred.” (Citation and punctuation omitted.) James v. State, 227 Ga. App. 907, 908 (1) (490 SE2d 556) (1997). See also Burks v. State, 268 Ga. 504 (491 SE2d 368) (1997).

We cannot agree with Montijo that the evidence showed only his mere presence. Montijo’s actions before, during, and after Adolfo Flores entered the victim’s home constituted evidence of his participation in the crime. The victim saw him “glaring” in the direction from which Adolfo Flores pushed open her door and entered her home. We note the victim’s testimony that Montijo did not appear to be surprised by Adolfo Flores’s behavior. After he entered the victim’s home, Adolfo Flores asked her about “Nicky,” a name Montijo had twice mentioned to the victim during the past two days, once during the past few moments. Montijo said in his statement that he saw that the individual inside the victim’s home had a gun. Furthermore, Montijo remained at the door of the home while items were taken from it, and he left with Adolfo Flores. We also note that Oscar Flores, who was in the car, was summoned by Montijo to the door to help carry the burglarized items to the car. Viewed in the light most favorable to the jury’s verdict, this evidence was sufficient to enable a rational trier of fact to find Montijo guilty of the crimes charged against him.

2. In Case No. A99A0416, Oscar Flores raises several contentions. He first argues that the trial court erred in denying his motion for directed verdict of acquittal at the close of the State’s case, because according to Oscar Flores, the only evidence presented against him was his uncorroborated confession.

As discussed above, a few hours after the incident at the victim’s home occurred, a car driven by Adolfo Flores was stopped, and Adolfo Flores and Montijo, a passenger in the car, were arrested. Over a month later, Oscar Flores was arrested on an unrelated matter, but during an in-custody interrogation, he made a statement, with the assistance of a Spanish-speaking interpreter, concerning the incident in this case. This statement, as redacted and read to the jury, recited in relevant part:

[O]thers . . . picked me up and we went to a trailer on a hill. Another went up to the door and was talking to a lady and after a few minutes others went inside the lady’s trailer and one came out and told me to come to the door. When I went to the door another started handing me stuff out of the house like a VCR and a camcorder and some other things. And others carried the T.V. set and put it in the car. The only thing I got to keep was a dollar sign charm that was gold in color and I threw it away because it wasn’t real gold. The other stuff we took to Adolfo’s trailer and unloaded it there and then they took me home.

After the State rested, Oscar Flores moved for a directed verdict of acquittal, which was denied by the trial court. He then testified on his own behalf concerning the events of March 19,1997. According to Oscar Flores, Adolfo Flores picked him up from the trailer of a friend. Adolfo drove to a trailer on a hill and asked Montijo to go “ask for someone named Nicky.” Oscar remained inside the car while Adolfo and Montijo went to the front door, and several minutes passed before he was called to the door by Montijo. Oscar testified that he went to the door, and Adolfo handed him a television and told him to put it in the car. He stated that he returned to the front door and “noticed that something was going on” and found the fact that Adolfo was taking “many things” from the house “kind of strange.” He admitted that he believed Adolfo “was taking things that were not his.” Despite this belief, Oscar continued to place other items from the home inside the car.

Oscar Flores argues that the trial court should have granted his motion for directed verdict of acquittal, contending that the only evidence the State introduced against him during its case in chief was his uncorroborated confession. The law is well settled that an accused’s confession, “uncorroborated by any other evidence, shall not justify a conviction.” OCGA § 24-3-53. But it is equally well established that “[a] conviction may be had on a confession although corroborated only by proof of the corpus delicti. . . . Corroboration in any material particular satisfies the requirements of the law.” (Citation and punctuation omitted.) Bigham v. State, 222 Ga. App. 353, 354 (474 SE2d 254) (1996).

Here, the victim’s trial testimony showed she was robbed and several items were taken from her home, even though she saw only two men on the evening of the incident. Stolen items included a VCR and camcorder, which Oscar Flores admitted removing from the home, a television, which he observed being placed into the car, and notably, a “dollar sign” charm, which he admitted to receiving and later discarding. The victim’s testimony, which corresponded with much of Oscar Flores’s confession, “was sufficient to establish the corpus delicti, i.e., that the crimes actually occurred.” Bigham, supra. Oscar Flores’s statement was sufficiently corroborated by other evidence, and the evidence was sufficient to convict him.

3. Oscar Flores contends the trial court erred in denying his motion to sever parties. Because the State did not seek the death penalty, whether to sever Oscar Flores’s case from those of his co-defendants was a matter within the trial court’s discretion. See, e.g., Felder v. State, 270 Ga. 641, 644 (5) (514 SE2d 416) (1999). In deciding a motion to sever, a trial court must consider three issues: (1) whether a joint trial will cause confusion concerning the evidence or law; (2) whether danger exists that evidence implicating one defendant will be considered against other defendants, in spite of limiting instructions; and (3) whether co-defendants will press antagonistic defenses. Bryant v. State, 270 Ga. 266, 269 (2) (507 SE2d 451) (1998).

(a) With respect to the first requirement, in this case the number of defendants tried together simply “was not so great as to create confusion of evidence and the law. [Cit.] The law applicable to each defendant was substantially the same, and there is no showing that presentation of evidence regarding the defendants led to confusion in the minds of the jury. [Cit.]” (Punctuation omitted.) Isaac v. State, 269 Ga. 875, 879 (7) (505 SE2d 480) (1998). Oscar Flores was charged with the same crimes as Adolfo Flores and Montijo, with the exception of the charge of possession of a firearm during the commission of a felony. And although two of the defendants shared the last name, “Flores,” our review of the transcript reveals that no serious confusion could have existed as to the actions of Adolfo, as opposed to those of Oscar.

Oscar Flores also argues that questions by the jury showed juror confusion concerning his participation in the incident. During deliberations, the jury sent two notes to the trial judge, one reciting, “We’d like to be charged on armed robbery. Is an individual guilty of taking goods obtained in an armed robbery? What will convict one of armed robbery?” The trial court recharged the jury on several issues, including mere presence at the scene of participation in a crime, the requirement that the State prove participation in the crimes beyond a reasonable doubt, parties to a crime, and the definition of armed robbery. The court then instructed the jury to send another note if any members had more questions. A second note recited that the jury “need[ed] to have typed the definition of party to a crime.” In response, the trial court provided a copy of the jury charge, pointing out that portion addressing parties to a crime. While these questions may have sought clarification on the law related to the charges against Oscar Flores, we cannot conclude that they showed juror confusion concerning the factual issue of Oscar Flores’s involvement in the crimes.

(b) As for the second requirement stated in Bryant, supra, some danger exists that the statements of Adolfo Flores and Montijo may have implicated Oscar Flores indirectly. Under Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968), “the right of confrontation is violated when several co-defendants are all tried jointly, one defendant’s confession is used to implicate another defendant in the crime, and the confessor does not take the stand.” (Punctuation omitted.) McDonald v. State, 210 Ga. App. 689, 690 (436 SE2d 811) (1993). The statements of Oscar Flores’s co-defendants, as redacted and read to the jury, did not directly implicate Oscar Flores by mentioning his name. Montijo’s actual statement mentioned a “Hispanic guy — who I don’t wish to name,” and when his statement was read to the jury, the statement was redacted to describe only “others” or “another” or “other guys.” Similarly, Adolfo Flores’s statement was redacted to remove any mention of Oscar Flores. That statement, as read to the jury, was as follows:

Adolfo Flores states that he only dropped [others] off at Maria’s house and waited in the car. Adolfo stated that they gave him the T.V. set for driving them down there and dropping them off and he took the T.V. to a girl’s house named Karen Bailey. Adolfo states that [others] got the idea to go to Maria’s house and told him . . . (Adolfo) that she was usually alone and that it would be easy to get. Adolfo states that the gun that was used at Maria’s house does belong to him but he let [others] use the gun as soon as [that person] told him what they were going to do.

Such redactions, however, are not permissible as a means of avoiding the Bruton proscription against use of statements made by non-testifying co-defendants that incriminate the defendant on trial. As stated in Hanifa v. State, 269 Ga. 797 (505 SE2d 731) (1998), while it is not entirely clear that the “generic terms” used in the statements referred directly to Oscar Flores, “the jury was notified by the use of the terms . . . that a name had been redacted, making it similar to Bruton's unredacted confessions so as to be a constitutional violation. [Cit.]” Id. at 804 (2).

But also as in Hanifa, we conclude that any Bruton violation was not harmful and does not require reversal. Hanifa, supra. At trial, Oscar Flores admitted participation in the criminal enterprise and knowledge of the fact that others were taking items from the victim’s home. Because evidence other than the statements of Montijo and Adolfo Flores “overwhelmingly implicated” Oscar Flores by placing him at the scene of the robbery and showing his participation, “we conclude that any Bruton error in admitting [those statements] was harmless, and therefore renders harmless any error in failing to grant [Oscar Flores’s] motion to sever.” Guimond v. State, 259 Ga. 752, 755 (3) (386 SE2d 158) (1989).

(c) Finally, it appears that the defenses of the co-defendants may have been antagonistic toward one another. Oscar Flores testified that he was merely a passenger and that he did not realize anything wrong was occurring until he saw items being taken from the victim’s home. He also testified that he feared Adolfo. Adolfo Flores contended, however, that he was merely the driver and knew nothing of others’ criminal plans, and in his original statement (which was not read in its entirety to the jury), Adolfo clearly implicated Oscar by stating, among other things, that robbing the victim was Oscar’s idea and that he allowed Oscar to use his gun.

But “[t]he existence of purported antagonistic defenses between two co-indictees is not sufficient to warrant the grant of a separate trial, absent a showing of harm. [Cit.]” Davis v. State, 266 Ga. 801, 802 (3) (471 SE2d 191) (1996). As discussed above, Oscar Flores testified at trial, essentially admitting his participation in the robbery, and the evidence overwhelmingly implicated him, regardless of the statements of Adolfo and Montijo.

4. Oscar Flores contends the trial court erred in refusing to continue the trial, claiming that his counsel did not have time to prepare adequately for trial. We find no error. Trial counsel entered an appearance July 2, 1997, and the case was set for trial July 28, 1997. On the morning of trial, he filed his motion to sever and his challenges to the arrays of the grand and traverse juries. The trial judge then continued the case until August 4,1997, and during the hearing on the challenges to the array held just before trial, defense counsel argued that he did not have adequate time to prepare. We find no error in the trial court’s refusal to further continue the trial. Counsel had at least four weeks to prepare for this case, which was not overly complicated, and even “a two-week preparation period is not inadequate as a matter of law. [Cits.]” Roland v. State, 266 Ga. 545, 546 (3) (468 SE2d 378) (1996).

5. Oscar Flores argues that the trial court erroneously failed to dismiss the indictment against him and grant his motions challenging the arrays of the grand and traverse juries.

To establish a prima facie case of jury discrimination, a defendant must show the following:

(1) that a distinctive group or recognizable class in the community has been excluded from the jury list; (2) that an opportunity for discrimination against this group existed from the source of the jury list; and (3) that use of the infected source produced a significant disparity between the percentages found present in the source and those actually appearing on the jury panels. [Cits.]

Bowen v. State, 244 Ga. 495, 500 (4) (260 SE2d 855) (1979). Assuming without deciding that Oscar Flores showed that Hispanics are a distinctive, recognizable class in Whitfield County, where the trial occurred, he has failed to show the second and third requirements. Oscar Flores presented evidence showing that out of 5,042 eligible jurors in Whitfield County as of June 17, 1997, only 17 Hispanic individuals were listed, but the voter registration list he submitted showed no breakdown of eligible Hispanic voters. He failed to show an opportunity for discrimination from the source of the jury list (apparently, the voter registration list) or that use of the infected source produced any significant disparity between percentages in the source and the jury panels. Indeed, in Oscar Flores’s brief on appeal, his trial counsel acknowledges the failure to make these required showings, claiming that he was not afforded sufficient time to prepare for the motion because the trial court denied his motion for continuance. But as discussed above, we find no merit in Flores’s contention that four weeks preparation was insufficient as a matter of law.

6. Oscar Flores contends the trial court erroneously refused to excuse a juror for cause. In response to a question on voir dire, this juror stated that she “might, depending on the circumstances,” give more credence to the testimony of a law enforcement official than to other witnesses. When asked whether she would automatically assume a police officer’s version of an incident was correct, the juror stated that she “would consider it carefully” but added an equivocal response. Counsel went on to ask whether the juror felt that the defendant “would be obligated to prove something” or whether “the defendant would have to put forth more proof than . . . the policeman.” The State objected on the ground that these questions involved the law that the court would later charge, and the trial court asked the juror whether she could “just take the evidence and evaluate it as it comes from the witness stand.” The juror responded, “I think so, yes.” Defense counsel continued to question the juror, however, asking if she believed the defendant was required to introduce evidence or “do something to show that he is not guilty.” The juror responded affirmatively. But the court then asked her whether she “would have any trouble following the law” as explained by the court, whether she had “preconceived notions” of how any case should “come out,” and whether she would “have any trouble” following the instruction that she was not to draw a harmful inference from a defendant’s failure to testify. The juror answered “no” to these questions.

“Whether to strike a juror for cause lies within the sound discretion of the trial court, and the fact that a juror has expressed a belief in the credibility of a witness does not require that he be excused for cause.” (Citations omitted.) Brown v. State, 268 Ga. 354, 356 (3) (490 SE2d 75) (1997). See also Mize v. State, 269 Ga. 646, 651-652 (6) (a) (501 SE2d 219) (1998). With respect to this juror’s statements concerning law enforcement officers, she indicated she could simply evaluate the evidence as it “comes from the witness stand” and could follow the instructions provided by the trial court. As for the juror’s response concerning whether a defendant was required to introduce evidence on his own behalf, we note that such inquiries were inappropriate on voir dire. “It has long been the law . . . that it is not within the purview of voir dire to inquire into technical legal questions, especially those ultimately involving the presumption of innocence, which are more properly the subject of a legal charge by the trial court.” (Citations and punctuation omitted.) Moak v. State, 222 Ga. App. 36, 38 (2) (473 SE2d 576) (1996). Despite this improper inquiry by trial counsel, however, the juror indicated that she could follow the law as explained by the court. We find no abuse of discretion in the trial court’s refusal to excuse this juror for cause.

7. Oscar Flores contends that his in-custody statement was erroneously admitted. He first contends that the statement was not voluntarily given. Oscar Flores testified at trial that an interrogating officer “told him that if he didn’t talk he was going to give him fifty years.” During the Jackson-Denno hearing, however, this officer, Detective Wayne Saylors, and the Spanish-speaking deputy who translated for Saylors and Oscar Flores during the interview both unequivocally testified that Flores’s statement was voluntarily given, and that no threats or promises were made.

W(hen testimony concerning “the factual circumstances of a statement is in direct conflict, the trial court is the trier of fact, whose resolution of factual issues such as the credibility of witnesses shall not be overturned unless clearly erroneous. [Cit.]” Jordan v. State, 187 Ga. App. 687, 689 (1) (371 SE2d 245) (1988). “Unless clearly erroneous, a trial court’s findings about factual determinations and credibility relating to the admissibility of an inculpatory statement will be upheld on appeal. [Cit.]” (Emphasis omitted.) Berry v. State, 267 Ga. 605, 610 (7) (481 SE2d 203) (1997). Given the testimony of the officers concerning the voluntariness of Oscar Flores’s statement, we cannot say that the trial court clearly erred in finding that the statement was voluntarily given.

Oscar Flores also argues that his statement was improperly admitted because the interpreter who translated during his in-custody interview, Edgardo Nieves, did not understand his dialect and was incapable of giving an exact word-for-word translation. Nieves testified that during Oscar Flores’s in-custody interview, Detective Saylors wrote down questions, which he translated to Flores, and Nieves then translated Flores’s Spanish responses into English “word for word.” Nieves later acknowledged, on cross-examination, that he was from Puerto Rico and was not fluent in Mexican dialects and that he was “not capable of giving an exact word for word translation because the dialects are different.” He also testified, however, that he understood everything that Flores told him and that he read Oscar Flores’s statement to him in Spanish after the interview and that Flores said the statement was correct. Furthermore, Oscar Flores was cross-examined about his statement. Although he stated that certain things were written in the statement that “I didn’t say,” he admitted telling Saylors and Nieves that he accompanied Montijo and Adolfo Flores to a “trailer on a hill,” that they handed him items from inside the trailer, that he kept a dollar sign charm, and that he helped take the items from the victim’s trailer to Adolfo’s trailer. Under these circumstances, we cannot say that the admission of Oscar Flores’s statement was error.

Decided June 25, 1999.

Michael A. Corbin, for appellant (case no. A99A0415).

Robert D. Jenkins, for appellant (case no. A99A0416).

Kermit N. McManus, District Attorney, Dixon A. Lackey III, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P J., and Eldridge, J, concur.

       Adolfo Flores is not a party to this appeal.

       We also note Oscar Flores’s contention that he believed Adolfo Flores would testify, placing “blame which had been attributed to him upon appellant, further causing confusion to the jury,” and that in an effort to avoid this confusion, Oscar Flores felt compelled to testify. But Adolfo Flores did not testify.

       Counsel asked, “But right now you tend to believe you probably would?” The juror ' responded, “Yes and no.”


author: Johnson, Chief Judge.

text:
    A99A0462.
    LOCKE v. THE STATE.
    (521 SE2d 587)
   Johnson, Chief Judge.

Saul Locke appeals from his convictions of burglary, robbery and criminal trespass. For the reasons which follow, we affirm.

1. Locke contends the trial court erred in allowing testimony regarding the victim’s pre-trial identification because the circumstances in which the identification occurred were impermissibly suggestive. We disagree.

In determining the admissibility of an eyewitness identification, we consider the witness’ opportunity to view the suspect at the time of the offense, the witness’ degree of attention, the accuracy of the witness’ prior description of the suspect, the witness’ level of certainty at the confrontation, and the length of time between the crime and the confrontation. Thomason v. State, 268 Ga. 298, 303-304 (3) (486 SE2d 861) (1997).

The record shows that the victim was home alone at about 2:30 p.m. when a man knocked on her window. She looked out and saw the man, whom she did not know, then left the window. The man went to her back porch and started knocking. She asked who it was. He said “something about (an) asphalt deal.” The victim went to the back door, which had glass windows, pulled back the curtain, and talked to the man. When she told him she was not interested, he left. The victim walked to the front door and watched as the man got into a white dump truck. The man started to back out of the driveway, then stopped the truck, got out of it and went to the neighbor’s house. The victim was suspicious and started telephoning her son. She heard a noise, then saw the man kicking her back door in. The man came in, snatched the phone out of her hand, and asked her for her purse. The victim gave him her purse. The man threatened to hit her if she tried to follow him, then left.

The police were called and arrived at the victim’s home about 30 minutes after the incident began. The victim gave police a detailed description of her assailant and his truck. One or two hours later, police spotted Locke’s white dump truck at a nearby hotel, questioned him, and took him to the police station to see if the victim could identify him as the assailant. When the victim arrived at the police station, Locke was sitting in a holding cell with three officers. She looked at Locke, waited for him to say something, and when he did, she remarked, “That’s him.” The victim told police she was sure of her identification. At trial, she testified that the crimes occurred on a sunny day, the man “was right in [her] face” and she got a good look at him.

From the circumstances we conclude that the showup was not unnecessarily suggestive nor was there a likelihood of misidentification. The fact that Locke was already in police custody and referred to as a suspect when the victim identified him does not render the identification impermissibly suggestive in light of surrounding circumstances. See Pickstock v. State, 235 Ga. App. 451, 457 (5) (a) (509 SE2d 717) (1998). The victim had ample opportunity to observe the perpetrator both before and during the attack. Her descriptions of the attacker and his truck were sufficiently accurate to support her later identification. Moreover, the identification occurred within hours of the crime.

Although this court has considered the dangers of irreparable misidentification inherent in the practice of having single suspects confront witnesses for the purpose of pre-trial identification, we have recognized that certain considerations may render a one-on-one confrontation permissible, if not desirable. These include the necessity of promptly resolving any doubts as to identification so as to enhance the accuracy and reliability of the identification, thus expediting the release of innocent suspects. Pickstock, supra at 456-457; Sabo v. State, 226 Ga. App. 106, 107 (2) (a) (485 SE2d 591) (1997). The trial court did not err in allowing the identification testimony. See Mattison v. State, 215 Ga. App. 635, 636 (2) (451 SE2d 807) (1994).

2. Locke contends the trial court erred in denying his motion for mistrial when the prosecuting attorney commented on his failure to testify. This enumeration is without merit.

At trial, the defense attorney called Locke’s uncle, Eddie Mullen, as a witness. Mullen testified that he worked as an asphalt paver and that Locke worked with him. When the defense attorney asked Mullen to give the names of people for whom Mullen and Locke worked, Mullen began giving names, including that of a church minister. The prosecuting attorney interrupted Mullen’s response, cláiming the testimony was irrelevant. In response, defense counsel stated that the testimony went to Mullen’s credibility, showing his “connections to the community.” Defense counsel argued that the state is permitted to ask police officers about their training and experience, and that the defense should be permitted to ask the same questions of its witnesses. The prosecuting attorney replied: “[T]he witness can testify to what he’s done. I don’t believe it’s relevant, but he can’t testify to what the Defendant’s done. If he wants to put that kind of character [evidence] in, he can put the Defendant up.”

Defense counsel moved for a mistrial. The trial court denied the motion, but immediately instructed the jury that the state always bears the burden of proof, the defendant is not obligated to put up any evidence whatsoever, the defendant is not obligated to testify, and the jury is not to hold his'decision not to testify against him. The trial court told the jurors to disregard the remark and to inform the court if they could not do so. Apparently, no jurors informed the court that they could not disregard the comment.

On appeal, we employ a two-prong test to determine whether a prosecutor’s remark regarding the defendant’s refusal to testify constitutes reversible error. In order to reverse, we must find one of two things: (1) the prosecutor’s manifest intention was to comment on the defendant’s failure to testify; or (2) the remark was of such a character that a jury would naturally and necessarily take it to be a comment on the defendant’s failure to testify. LeMay v. State, 265 Ga. 73, 75 (4) (453 SE2d 737) (1995). In determining the prosecutor’s intention and the natural and necessary impact the comment has on the jury, we must consider the context in which the comment was made. Hall v. State, 176 Ga. App. 428, 432 (3) (336 SE2d 291) (1985).

Viewed in the context in which it was made, the remark does not manifest an intent by the prosecutor to comment on Locke’s failure to testify. The remark was made as the attorneys debated the issue of whether testimony of Locke’s past employment was relevant to the case. The only intention manifest by the prosecutor was an intent to exclude the introduction of what he saw as character evidence. The intent required by the first prong of the test is not present here. See Hammock v. State, 201 Ga. App. 614, 619 (7) (411 SE2d 743) (1991).

Decided June 25, 1999.

William R. Carlisle, for appellant.

Saul Locke, pro se.

Patrick H. Head, District Attorney, for appellee.

Nor do we find that a jury would naturally and necessarily construe the statement as a comment on Locke’s failure to testify. In our opinion, a jury would naturally and necessarily construe the statement as a comment on whether the defense can introduce testimony regarding for whom Locke worked in the area. Nothing about the comment pointed to the conclusion of Locke’s guilt because of his failure to testify. See Martin v. State, 193 Ga. App. 581, 586 (4) (388 SE2d 420) (1989). We note, however, that prosecutors should avoid making comments such as the one made here. Nonetheless, considering the remark made, the context in which it was made, and the curative instructions given, the trial court did not abuse its discretion in denying Locke’s motion for mistrial. See Brown v. State, 204 Ga. App. 176, 178 (2) (418 SE2d 776) (1992); Kerr v. State, 193 Ga. App. 165, 166 (1) (387 SE2d 355) (1989).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.


text:
    A99A0689.
    CARTER v. THE STATE.
    (520 SE2d 15)
   Ruffin, Judge.

A jury found Kenya Carter guilty of selling cocaine, trafficking in cocaine, possession of a controlled substance, and possession of a controlled substance within 1,000 feet of a housing project. Carter appeals, contending that the trial court erred in denying his motion to suppress evidence and in admitting hearsay evidence of a witness’s prior consistent statement. Because these contentions are without merit, we affirm.

At trial, Officer Byron Hickey of the Columbus Police Department testified that he learned from a confidential informant that Carter was selling crack cocaine at an apartment he shared with his girlfriend, Annie Dunn. Hickey arranged for the informant to visit the apartment, wearing a recording device, and make a “controlled purchase” of crack cocaine using marked money supplied by police. After the informant returned with the crack, he gave a tape-recorded statement to police in which he recounted that he “went to Kenya [’s] house and purchased a twenty-cent piece of crack cocaine.” The informant further stated that Dunn also was present at the apartment, braiding her daughter’s hair and slightly obscured from the informant’s view. Police then obtained a search warrant for the apartment, where they discovered containers of crack cocaine and marijuana, large quantities of cash (including the marked bill the informant had used), a scale, and two handguns.

1. Prior to trial, Carter moved to suppress the evidence police discovered during the search of the apartment, arguing that the warrant was invalid and that the police lacked probable cause for the search. The trial court denied the motion. At trial, the State moved for the admission into evidence of each seized item, and Carter’s counsel affirmatively stated that he had no objection. Carter contends that the trial court erred in denying his motion to suppress.

However, Carter has waived his right to appellate review of his motion to suppress. We recently addressed this issue in Dyer v. State, 233 Ga. App. 770 (505 SE2d 71) (1998), which involved nearly identical facts:

Defendant unsuccessfully moved to suppress evidence of marijuana seized from his home. Although defendant argued during his motion to suppress hearing the evidence seized during the search . . . was inadmissible because the search was illegal, he did not offer that objection at trial. When each item of evidence seized during the search was offered for admission at trial, defendant affirmatively stated he had no objection.

(Punctuation omitted.) Id. at 771. We reasoned that “[failing to object at trial is not a waiver of the motion to suppress grounds, but affirmatively stating there is no objection in effect concedes the point.” (Footnotes omitted; emphasis in original.) Id. Carter affirmatively stated at trial that he had no objection to the admission of the evidence seized. Thus, Carter “waived and failed to preserve his right to contest the admission of the evidence on appeal on the grounds raised in the motion to suppress.” (Punctuation and footnote omitted.) Id. See also Chaney v. State, 224 Ga. App. 663 (1) (482 SE2d 398) (1997); Mattingly v. State, 205 Ga. App. 777 (1) (423 SE2d 709) (1992).

2. Carter also argues that the trial court erred in admitting, over his hearsay objection, the tape-recorded statement made by the informant immediately following the controlled purchase. We find no error.

A witness’s prior consistent statement is admissible at trial where “(1) the veracity of [the] witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.” Woodard v. State, 269 Ga. 317, 320 (2) (496 SE2d 896) (1998). Carter argues that the informant’s veracity was not in issue because Carter did not cross-examine the informant. However, the veracity of a witness may be placed in issue either “expressly or impliedly.” Cuzzort v. State, 254 Ga. 745, 746 (334 SE2d 661) (1985) (Bell, J., concurring specially); McGee v. State, 205 Ga. App. 722, 726 (9) (423 SE2d 666) (1992). Here, the crux of Carter’s defense was that the informant purchased crack cocaine not from Carter, but from Dunn. Carter’s attorney thoroughly cross-examined Officer Hickey, asking at one point, “Is it true that your informant went to that apartment looking for Kenya Carter but Annie Dunn sold him the cocaine?” The defense sought to advance a version of events contrary to the informant’s testimony that he bought the drugs from Carter while Dunn was braiding her daughter’s hair. Thus, Carter placed the informant’s veracity in issue. The other requirements set forth in Woodard also were satisfied, as the informant testified at trial and was available for cross-examination. Accordingly, the trial court did not err in admitting the informant’s prior consistent statement.

Even if the requirements for admission of a prior consistent statement were not- satisfied, any error in admitting the tape-recorded statement was harmless. “The erroneous admission of [a] witness’s hearsay statements is only reversible if it appears likely that the hearsay contributed to the guilty verdict.” Woodard, supra at 324 (4). The State presented substantial evidence in addition to the informant’s taped statement that the informant purchased crack cocaine from Carter, not Dunn. The informant testified in court about the controlled purchase and identified Carter as the person who sold him the drugs. Officer Hickey corroborated the informant’s account. The informant also testified that he had previously been to the apartment to see Carter, but never to visit Dunn. Finally, the State played a tape recording of the controlled purchase in which the informant speaks to “Kenya” but does not mention Dunn. Thus, the informant’s out-of-court statement was “ ‘cumulative of other legally admissible evidence of the same fact[s],’” and its admission was harmless. Griffis v. State, 222 Ga. App. 322, 324 (2) (474 SE2d 119) (1996).

Decided June 25, 1999.

Michael E. Garner, for appellant.

J. Gray Conger, District Attorney, Alonza Whitaker, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J, and Andrews, J., concur.

        Woodard, states that a witness’s veracity is placed in issue “if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross examination.” (Emphasis supplied.) Woodard, supra at 320. However, neither Woodard nor any of the cases cited therein states that a witness’s veracity may be impugned only during cross-examination of that witness. We have recognized that a witness’s veracity may be put in issue by means other than cross-examination of the witness. See, e.g., Williams v. State, 210 Ga. App. 437, 439 (3) (436 SE2d 550) (1993) (prior consistent statement was admissible to rehabilitate prosecution witness whose veracity was challenged by defense witness’s contrary testimony); Patterson v. State, 180 Ga. App. 194, 195 (348 SE2d 578) (1986) (child molestation victim’s veracity was placed in issue by defendant’s “denial that any molestation ever took place,” as well as by cross-examination). In any event, the informant’s veracity in this case was called into question during cross-examination — albeit cross-examination of Officer Hickey and not the informant himself.


author: Judge Harold R. Banke.

text:
    A99A1333.
    COHEN v. SANDY SPRINGS CROSSING ASSOCIATES, L.P.
    (520 SE2d 17)
   Judge Harold R. Banke.

Sandy Springs Crossing Associates, L.P. (“Sandy Springs”), the owner of Sandy Springs Crossing Shopping Center, brought this action against Murray Cohen to enforce his obligations under a lease guaranty. Cohen appeals the trial court’s grant of Sandy Springs’ motion for summary judgment and its denial of summary judgment to him.

Cohen’s son owned Metabolic Nutritions, Inc., which opened a nutritional products store in the shopping center. Cohen agreed to guarantee Metabolic’s payment of rent. On August 15, 1994, Sandy Springs faxed the guaranty to Cohen in Florida. Cohen signed the guaranty and then faxed the document back to Sandy Springs. In blank spaces provided for the dates of both the guaranty and lease, Cohen wrote August 15, 1994.

Although the lease was not executed until September 1, 1994, it is undisputed that such lease is the only lease ever executed by Metabolic and Sandy Springs. In his deposition, Cohen admitted that the September 1 lease was the one he intended to guarantee and that, after executing the guaranty, he recognized his obligations thereunder by curing Metabolic’s default in numerous monthly rental payments. Held:

In primary reliance on Avec Corp. v. Schmidt, 207 Ga. App. 374 (427 SE2d 850) (1993), Cohen maintains that Georgia law nonetheless prohibits Sandy Springs from holding him liable for obligations of a lease executed on a date different from that of the lease referred to in the guaranty.

The defendants in Avec Corp. guaranteed the lease of property in a shopping center acquired by the plaintiff, but the guaranty referred to a lease executed on February 7, 1986, while the lease which was the subject of the action was executed on February 10, 1986; moreover, the guaranty and February 10 lease were internally inconsistent. We concluded that application of the guaranty to the February 10 lease would constitute an extension of it by implication or interpretation in violation of OCGA §§ 10-7-1 and 10-7-3. See also Parker v. Ga. Receivables, 215 Ga. App. 624 (451 SE2d 538) (1994).

But in Town Center Assoc. v. Workman, 227 Ga. App. 55 (487 SE2d 624) (1997), relied on by Sandy Springs, a guaranty was held applicable to a lease notwithstanding discrepancies in the guaranty’s reference to the date the lease was executed. Workman was an action against various individuals who had guaranteed a shopping center lease. The guaranty did not specify the date of the lease, but contained a “whereas” clause which referred to the lease as having been executed before the guaranty. In fact, the guaranty was executed on November 30, 1994, and the lease was not fully executed until December 13, 1994. However, the guaranty was incorporated by reference and physically attached to the lease, both documents contained the same description of the leased premises, one of the guarantors admitted that by executing the November 30 guaranty she intended to guarantee rent payments under the December 13 lease, and it was undisputed that the December 13 lease was the only lease ever executed between the landlord and tenant. Noting that there was no lease to which the guaranty could apply other than the one executed on December 13, we held that the only reasonable interpretation of the guaranty was that it was intended to apply to that lease. Id. at 58 (1); see also Senske v. Harris Trust &c. Bank, 233 Ga. App. 407, 410 (1) (504 SE2d 272) (1998).

Similarly, in Arnold v. Indcon, L.P., 219 Ga. App. 813-814 (1) (466 SE2d 684) (1996), we found that even if an ambiguity was created by the fact that a guaranty incorrectly referred to a lease as an exhibit, the intention of the parties was not in question because during his deposition the guarantor admitted that his intent was to guarantee the lease at issue.

In this case, as in Arnold and Workman, the guarantor admitted that he intended to guarantee the lease sued on. And as in Workman, the undisputed testimony showed that this was the only lease ever entered into between the landlord and tenant. Moreover, the guarantor recognized his obligations under the lease by curing the tenant’s defaults in lease payments, and “[t]he construction placed upon a contract by the parties thereto, as shown by their acts and conduct, is entitled to much weight and may be conclusive upon them. [Cits.]” Scruggs v. Purvis, 218 Ga. 40, 42 (126 SE2d 208) (1962).

Decided June 25, 1999 — Cert. applied for.

Dreger & McClelland, Richard J. Dreger, Nicholas J. Pieschel, for appellant.

Kitchens, Kelley & Gaynes, David B. Kitchens, Mark A. Kelley, Tor appellee.

The only inconsistency between the guaranty and lease concerned the date of the lease as provided by handwritten insertion of the guarantor. Contrary to arguments advanced by Cohen, the trial court properly considered parol evidence showing that in executing the guaranty Cohen mistakenly inserted the wrong date for the lease. Azar v. Fulton County Employees Pension Bd., 148 Ga. App. 865, 866 (253 SE2d 251) (1979); compare Sysco Food Svcs. v. Coleman, 227 Ga. App. 460 (489 SE2d 568) (1997). The court did not err in its disposition of the parties’ cross-motions for summary judgment.

Sandy Springs’ motion for damages under OCGA § 5-6-6 is denied, as we do not find that this was a frivolous appeal taken for delay only. Starrett v. Commercial Bank of Ga., 226 Ga. App. 598, 601 (3) (486 SE2d 923) (1997).

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


author: McMurray, Presiding Judge.

text:
    A99A0598, A99A0599.
    M & H CONSTRUCTION COMPANY, INC. v. NORTH FULTON DEVELOPMENT CORPORATION; and vice versa.
    (519 SE2d 287)
   McMurray, Presiding Judge.

Plaintiff M & H Construction Company, Inc., a utilities contractor, entered into a contract with defendant North Fulton Development Corporation, the developer of a residential subdivision, for the construction of a pump station. Prior to completion of the project, a controversy developed between the parties with respect to whether the project had been completed in compliance with the contract and with respect to the satisfaction of financial obligations.

Plaintiff filed this action seeking to compel an arbitration proceeding or, in the alternative, seeking damages based on theories of breach of contract, breach of contract based on a trespass action filed against plaintiff, and fraudulent inducement to arbitrate. Plaintiff also sought interest on the funds allegedly owed by defendant, and attorney fees pursuant to OCGA § 13-6-11. Defendant answered and counterclaimed, alleging breach of contract.

In a bifurcated trial, the first phase resulted in a verdict on the breach of contract issues. Plaintiff was awarded $32,507.92, and defendant was awarded $1,200.

In the second phase of the trial, on plaintiff’s claim for attorney fees, plaintiff was awarded $46,424.80. The resulting judgment was in favor of plaintiff in the principal amount of $77,732.72.

Defendant filed its motion for judgment notwithstanding the verdict (j.n.o.v.), or in the alternative, for new trial. The trial court granted defendant’s motion for j.n.o.v. with respect to the award of attorney fees, but did not address the alternative motion for new trial.

Plaintiff’s appeal of the grant of j.n.o.v. was remanded pursuant to Ogletree v. Navistar Intl. Transp. Corp., 221 Ga. App. 363 (471 SE2d 287), so that the trial court might enter the conditional ruling on defendant’s alternative motion for new trial required by OCGA § 9-11-50 (c). On remand, the trial court entered the required order, and plaintiff appealed once more. Plaintiff’s appeal in Case No. A99A0598 seeks primarily the reversal of the trial court’s grant of defendant’s motion for j.n.o.v. Defendant cross-appeals in Case No. A99A0599. Held:

1. In ruling on defendant’s motion for j.n.o.v., the trial court relied upon Brown v. Baker, 197 Ga. App. 466, 468 (4) (398 SE2d 797) for the principle that:

“When bad faith is not an issue and the only asserted basis for a recovery of attorney [ ] fees is either stubborn litigiousness or the causing of unnecessary trouble and expense, there is not ‘any evidence’ to support an award pursuant to OCGA § 13-6-11 if a bona fide controversy clearly exists between the parties. Thus, in a case where bad faith is not an issue, attorney!] fees are not authorized under OCGA § 13-6-11 if the evidence shows that ‘a genuine dispute exists — whether of law or fact, on liability or amount of damages, or on any comparable issue. . . .’”

(Citations omitted.) In the present case there was clearly a bona fide controversy with respect to the underlying contract action, and the issues on appeal are directed to the question of whether bad faith was at issue in the case sub judice.

The trial court appears to have come to a negative conclusion on this issue at least partially via reference to plaintiff’s complaint which omits any reference to bad faith. Plaintiff argues that its complaint was adequate under notice pleading and that the bad faith issue was before the jury since evidence of bad faith was admitted and the jury charged without objection that it was authorized to award attorney fees based on bad faith.

Nonetheless, we find no evidence of bad faith authorizing an award of attorney fees and consequently find no error in the trial court’s grant of defendant’s motion for j.n.o.v. In this respect, we first note that “[a] prerequisite to any award of attorney fees under OCGA § 13-6-11 is the award of damages or other relief on the underlying claim.” United Cos. Lending Corp. v. Peacock, 267 Ga. 145, 147 (2) (475 SE2d 601). The only underlying claim upon which damages have been awarded to plaintiff is a contract claim. While plaintiff’s claim for fraudulent inducement to arbitrate is argued to be a proper foundation for an award of attorney fees, such is not the case since this claim was never submitted to the jury so that no relief has been granted thereon.

The remaining conduct which plaintiff relies upon as proof of bad faith may be discounted for one or more reasons.

“Bad faith warranting an award of attorney fees must have arisen out of the transaction on which the cause of action is predicated. It may be found in defendant’s carrying out the provisions of the contract, that is, in how defendant acted in his dealing with the plaintiff. Bad faith other than mere refusal to pay a just debt is sufficient, provided it is not prompted by an honest mistake as to one’s rights or duties but by some interested or sinister motive. So defendants can be held liable for attorney fees if they committed the breach in bad faith.” (Citations and punctuation omitted.) Young v. A. L. Anthony Grading Co., 225 Ga. App. 592, 593 (484 SE2d 318) (1997).

Wheat Enterprises v. Redi-Floors, 231 Ga. App. 853, 857 (1) (c) (501 SE2d 30).

Most of the evidence relied upon by plaintiff arises from the financial disputes between the parties and amounts at most to a failure to pay a debt. Mere failure to pay a just debt is insufficient to support an award of attorney fees under OCGA § 13-6-11. Sass v. First Nat. Bank of Cherokee, 228 Ga. App. 7, 8 (1) (491 SE2d 76). Furthermore, the circumstances which led to plaintiff being named as a party defendant in a trespass action have not been shown to have resulted from anything other than an honest mistake. And finally, we note that plaintiff’s reliance upon incidents which occurred after institution of the suit is misplaced. Bad faith relates to the transaction upon which the underlying action is based and refers to a time prior to the institution of suit, not defendant’s conduct in defending the case. Gwinnett County Bd. of Tax Assessors v. Network Publica tions, 208 Ga. App. 15, 18 (3) (429 SE2d 696); see also Candle v. Wicks Lumber Co., 195 Ga. App. 239, 242 (1) (a) (393 SE2d 99).

Decided June 10, 1999

Reconsideration denied June 28, 1999.

Peter R. Weisz, for appellant.

Smith, Gambrell & Russell, James H. Bratton, Jr., Bruce D. Cohen, for appellee.

2. In its third enumeration of error, plaintiff maintains that Ogletree v. Navistar Intl. Transp. Corp., 221 Ga. App. 363, supra, should be modified to dispense with remand under some circumstances. Nonetheless, this issue is obviously based on this Court’s recent remand of the case sub judice on a prior appeal and not upon any action taken by the trial court. At this point in time the matter is moot, although we note that the issue could have been raised in a timely fashion by motion for reconsideration of the remand of plaintiff’s earlier appeal.

3. The remaining issues on appeal are rendered moot by our decision in Division 1, approving of the trial court’s grant of defendant’s motion for j.n.o.v. This includes plaintiff’s challenge of the trial court’s conditional grant of new trial as to the amount and allocation of attorney fees, a ruling which would take effect only upon the reversal of the grant of defendant’s motion for j.n.o.v., and challenge of the denial of plaintiff’s motion for a supersedeas bond.

The ruling in Division 1 also renders defendant’s cross-appeal moot. Accordingly, the cross-appeal must be dismissed. Steele v. Grot, 232 Ga. App. 847, 849-850 (2) (503 SE2d 92).

Judgment affirmed in Case No. A99A0598. Appeal dismissed in Case No. A99A0599.

Andrews and Ruffin, JJ, concur.


author: Barnes, Judge.

text:
    A99A0198.
    UNITED COMPANIES LENDING CORPORATION v. COATES et al.
    (520 SE2d 236)
   Barnes, Judge.

United Companies Lending Corporation (“United Companies”) filed a complaint against two minors, Alton Coates, Jr. and Omar Coates (“the minors”), seeking imposition of an equitable trust on property owned by the minors, a declaration that it is subrogated to the position of a prior first lienholder, and restitution of money that unjustly enriched the minors. United Companies claimed it was entitled to equitable relief because the minors’ guardian and mother, Bobbie Coates, defaulted on a loan secured by the property. The trial court granted the minors’ motion for summary judgment and denied United Companies’ - motion for summary judgment because it is undisputed that Coates never obtained approval from the probate court to secure the loan with the minors’ property. United Companies appeals, contending the trial court erred by granting summary judgment to the minors and denying its motion for summary judgment. For reasons which follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996).

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

The record, so viewed, reveals that the minors’ grandmother, Essie Mae Hodge, devised the subject property, which consists of a house and a lot, to the minors in her will. After Hodge’s death, the property was conveyed to the minors by the executrix of her estate in 1990. The probate court appointed the minors’ mother, Coates, as the guardian of their property with the authority “to receive same and manage it according to the law.” The probate court also issued Letters of Natural Guardian which authorized Coates “to receive, collect, and take charge of the estate, both real and personal, of [her] minor children. . . .”

Approximately five years later, Bobbie Coates and her husband, Alton Coates, Sr., executed a promissory note in favor of United Companies with an original principal amount of $21,000. As security for the loan, Bobbie Coates signed a deed to secure debt which encumbered the minors’ property. She also signed an affidavit in which she affirmatively represented that she had “a perfect right to convey the security interest described above.” It is undisputed that no court authorized Bobbie Coates to encumber the minors’ property with the security deed in favor of United Companies.

Pursuant to the terms of the promissory note, United Companies dispersed $4,842.89 of the loan proceeds to Peachtree Investment Group to satisfy an outstanding first lien on the property and $1,611.97 to pay off four unsecured creditors of Bobbie Coates and Alton Coates, Sr. It also dispersed $7,500 to an escrow account to be used for improvements to the property. Bobbie Coates and Alton Coates, Sr. received $548.79 cash at the closing. The remainder of the loan proceeds was used to pay the settlement charges for the loan which totaled $6,496.35, almost one-third of the total loan amount.

Bobbie Coates and Alton Coates, Sr. filed a Chapter 13 bankruptcy petition approximately four months after entering' into the loan with United Companies. Two years later, United Companies filed this action against the minors.

1. United Companies asserts the trial court improperly granted summary judgment to the minor defendants. We disagree. OCGA § 29-2-20 provides:

The guardian may not borrow money and bind his ward therefor nor bind his ward’s property or create any lien thereon by any contract other than those specially allowed by law; provided however, that, upon application and showing the need by evidence, the probate court or the superior court may authorize a guardian to borrow money to renovate or to make improvements upon property of his ward, or for purposes set out in Code Sections 29-2-3 and 29-2-4.

The record shows, without dispute, that Bobbie Coates did not obtain court approval before obtaining the loan from United Companies. As a result, the deed to secure debt executed by Bobbie Coates cannot be enforced against the minors. See McQueen v. Fisher, 22 Ga. App. 394, 395 (95 SE 1004) (1918).

United Companies argues that the trial court should have applied equitable principles to allow it to recover against the minors because the minors have received a windfall. The specific benefits United Companies alleges the minors received include improvements to the property and satisfaction of a prior first mortgage on the property with the proceeds of United Companies’ loan to the guardian.

In two of its equitable theories of recovery (equitable trust and subrogation), United Companies asked the trial court to impose a lien against the property of the minors. Since imposing a lien against the property of the minors “would be contrary to the spirit and letter of the law as contained in [OCGA § 29-2-20],” the trial court properly granted summary judgment in favor of the minor defendants on Counts 1 and 2 of the complaint. McQueen, supra, 22 Ga. App. at 396.

In its remaining theory of recovery, unjust enrichment, United Companies sought $21,000, plus interest, for the amount of money allegedly had and received by the minors.

An action for unjust enrichment lies when money is paid on the debt of another, with his consent and approval, where the person making the payment was obligated to make the payment, and no consideration or benefit inures to his benefit, and credit for such payment inures to the benefit of the other party.

(Emphasis supplied.) Clay v. Littlefield, 144 Ga. App. 88, 91 (240 SE2d 254) (1977). Since the minors did not consent to any payments made by United Companies, the trial court’s grant of summary judgment to the minors on this count was also proper.

2. For the reasons outlined above alone, the trial court did not err when it denied United Companies’ motion for summary judgment in its favor. However, we further find that United Companies failed to establish a windfall to the minors. Although it argues the prior first mortgage “might well have predated the bequest of the Property to the [minors] from their grandmother,” it never presented any evidence that this was the case. The only record evidence on this issue, which was submitted by United Companies, demonstrates the opposite. Exhibit F to the affidavit of a United Companies representative states that the date of the prior first mortgage was July 26, 1994, over four years after the property was conveyed to the minors. Additionally, United Companies submitted no affirmative evidence showing court approval for the prior first mortgage, and the probate judge’s affidavit submitted on behalf of the minors states that Bobbie Coates never petitioned for approval to create a lien or encumbrance on the property. Thus, it appears that the loan from United Companies was used to satisfy another loan invalidly secured by the minors’ property.

United Companies also failed to support its claim that the minors’ property was improved in the amount of $7,500. The only evidence that arguably supports this claim is that United Companies paid $7,500 of the loan proceeds into a home improvement escrow account and a request was later made for disbursement of this amount through a check made payable to “Alton and Bobbie Coates and Allstate Industries.” United Companies submitted no evidence showing how this money was used to improve the minors’ property or any resulting increase in value to the minors’ property.

Finally, we find United Companies’ request for an equitable lien or judgment in the total loan amount of $21,000 disingenuous and contrary to the equitable principles it invokes. Since one-third of this amount went to settlement charges and another $2,160.76 was paid to the minors’ parents or their creditors, there could be no windfall to the minors in this amount.

Decided June 28, 1999.

David G. Crockett, Douglas L. Brooks, for appellant.

Harris & James, Lisa Neill-Beckmann, for appellees.

Judgment affirmed.

Blackburn, P. J, and Senior Appellate Judge Harold R. Banke concur.

       Alton Coates, Jr. was 15 and Omar Coates was 12 at the time their mother signed the security deed.

       These settlement charges included a seven and one-half percent origination fee and the purchase of credit life insurance for $2,263.43.