text:
    A93A2208.
    BRAYMAN et al. v. ALLSTATE INSURANCE COMPANY.
    (441 SE2d 285)
   Cooper, Judge.

Allstate Insurance Company brought a declaratory judgment action against its insureds, Lawrence and Shirley Brayman, to determine its obligations to the Braymans with respect to a lawsuit brought against them for slander. The trial court granted Allstate’s motion for summary judgment and the Braymans appeal.

Allstate issued a homeowners insurance policy to the Braymans which provides in pertinent part as follows: “Allstate will pay damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an accident and covered by this part of the policy.” The policy excludes from coverage any bodily injury or property damage resulting from “an act or omission intended or expected to cause bodily injury or property damage . . . even if the bodily injury or property damage is of a different kind or degree, or is sustained by a different person or property, than that intended or expected.” “Bodily injury” is defined as “physical harm to the body, including sickness or disease, and resulting death.” In July .1990, plaintiff Little brought suit against the Braymans alleging they had made numerous false and malicious statements to others that she was a homosexual and that such statements were deliberately calculated to injure her, constituted slander per se, and had caused her great mental pain and anguish.

1. The Braymans’ sole enumeration of error is that the trial court erred in granting summary judgment to Allstate because the claim for slander is covered under that portion of the policy providing coverage for bodily injury. “An insurer’s duty to defend is determined by the insurance contract; and since the contract obligates the insurer to defend claims asserting liability under the policy, even if groundless, the allegations of the complaint are looked to to determine whether a liability covered by the policy is asserted.” (Citations and punctuation omitted.) Cantrell v. Allstate Ins. Co., 202 Ga. App. 859, 860 (415 SE2d 711) (1992). “Used in an insurance policy, the term ‘bodily injury’ means just that — ‘bodily injury.’ It pertains to physical injury to the body. It does not include non-physical, emotional or mental harm. And it cannot be equated with a broader term ‘personal injury.’ ” (Citations omitted.) Presidential Hotel v. Canal Ins. Co., 188 Ga. App. 609, 611 (373 SE2d 671) (1988). The plaintiff’s complaint against the Braymans alleges only a non-physical injury, Oliver v. Wal-Mart Stores, 209 Ga. App. 703, 704 (434 SE2d 500) (1993), and seeks damages for purely mental harm. Presidential Hotel, supra at 611. Thus, the plaintiff’s complaint does not seek damages for “bodily injury” within the meaning of the policy provisions. Id.

Decided February 15, 1994.

Richard D. Phillips, for appellants.

Barrow, Sims, Morrow & Lee, R. Stephen Sims, for appellee.

Furthermore, even if we were to assume the plaintiff did assert a claim for bodily injury, such would only be covered if it occurred as the result of an accident. The plaintiff’s complaint asserts that the Braymans’ statements about her were false and malicious and were deliberately calculated to cause her harm. Although the policy does not define the term “accident,” it specifically excludes coverage for intentional acts. Moreover, the term “accident” has been defined generally as “an undesirable or unfortunate happening that occurs unintentionally and usually results in harm, injury, damage, or loss.” (Random House Dictionary of the English Language (2d ed. 1987).) Thus, given the plaintiff’s allegations that the Braymans’ acts were intentional, we cannot say that any alleged bodily injury she may have suffered occurred as the result of an accident. See Presidential Hotel, supra at 611. Accordingly, the plaintiff’s allegations of liability are not covered by the policy and the trial court properly granted summary judgment to Allstate.

2. Inasmuch as appellants’ brief consisted of one page of argument and cited no applicable Georgia authorities, we can find no reasonable basis on which appellants could have anticipated reversal of the trial court’s judgment. We thus assess a $500 penalty against appellants pursuant to Court of Appeals Rule 26 (b) for pursuing a frivolous appeal. The trial court is directed to enter judgment in such amount upon return of the remittitur in this case. See English v. Liberty Mtg. Corp., 205 Ga. App. 141 (4) (421 SE2d 286) (1992).

Judgment affirmed with direction.

Beasley, P. J., and Smith, J., concur.

       Allstate also named Barbara Little, the individual who brought suit against the Braymans, as a defendant in the declaratory judgment action; however, she is not a party to this appeal.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A93A2414.
    MEDLOCK v. PLEATMAN.
    (441 SE2d 286)
   Andrews, Judge.

Medlock appeals the trial court’s grant of summary judgment to defendant Pleatman on Medlock’s suit for a deficiency after foreclosure on certain real estate.

In June 1982, Medlock sold Pleatman an apartment complex. As part of the purchase price, Pleatman gave Medlock a third priority purchase money note dated June 18, 1982 in the amount of $436,694.69 and assumed two existing debts against the property, including the 1972 first priority note and security deed held by Decatur Federal Savings & Loan Association. The 1982 third priority note contained the following language typed onto the face of the printed note form: “Notwithstanding any other provisions of the terms of this note and deed to secure debt, it is hereby agreed that the holder hereof shall look solely to the property secured hereby as payment for the indebtedness evidenced and shall not bring suit against the maker hereof individually for funds in addition to the property secured hereby.” (Exculpatory clause; emphasis supplied.)

On January 25, 1984, Medlock and Pleatman entered into a modification agreement by which Medlock agreed to the lowering of the monthly payment amount and an extension of the repayment term to Decatur Federal on the 1972 first priority note. The modification agreement stated that “Medlock is willing to consent to the modifications to be made to the First Mortgage provided that Pleatman consents to the modification of certain provisions of the Purchase Money Note.” Paragraph 2 of the 1984 modification provided that “Pleatman does hereby agree that notwithstanding the exculpatory language set out in the Purchase Money Note, Pleatman does hereby agree that upon an event of default occurring under . . . the Purchase Money Instruments,. . . Pleatman shall be personally liable to Medlock and suit may be brought against Pleatman for a personal judgment in an amount not to exceed the difference between the principal balance outstanding on the First Mortgage as of the date of default by Pleatman less the principal balance that would have been outstanding on the First Mortgage, as if it had not been modified as provided for hereinabove in Paragraph 1. . . .” (Emphasis supplied.)

On August 6, 1985, Pleatman and Medlock entered into a second loan modification. As a result, Pleatman closed a new replacement loan with Decatur Federal, holder of the original 1972 first mortgage. The proceeds of this loan were used to pay off the balance of the 1972 first mortgage, the second priority note, also held by Medlock, and to provide Medlock with a sum of cash. A final modification was entered into between Medlock and Pleatman, whereby accrued defaulted interest was added to the principal due and the rate was changed.

Decided February 15, 1994.

William A. Broughman, W. Barrington King, Jr., for appellant.

Lamberth, Bonapfel, Cifelli, Willson & Stokes, J. Michael Lam-berth, Sharon K. Kacmarcik, for appellee.

In 1990, Pleatman defaulted to Medlock and she foreclosed on her now second priority note and deed to secure debt. An order of confirmation and approval of the foreclosure sale was entered on March 3, 1992 and Medlock then filed the present deficiency action against Pleatman personally.

Medlock’s contention, as reflected in the trial court’s order, is that “the first mortgage was extinguished by a refinancing and the parties assumed the old debt was included in the refinance as part of their continuing series of negotiations, thus including also defendant’s personal liability.”

1. As held by the able trial court, there is no authority “by which it [could] insert the phrase ‘or any extension or renewal’ into the [1984] agreement’s specific definition of the first mortgage as the 1972 Decatur Federal loan. Without authority, ‘[c]ourts are not at liberty to revise contracts while professing to construe them.’ Stuckey v. Kahn, 140 Ga. App. 602, 606 (1) (231 SE2d 565) (1976).” Petroziello v. United States Leasing Corp., 176 Ga. App. 858, 861 (338 SE2d 63) (1985) .

There was no ambiguity here which required the court’s construction of the writings. Chem Tech Finishers v. Paul Mueller Co., 189 Ga. App. 433, 435 (3) (375 SE2d 881) (1988).

2. Medlock argues that her understanding and intention should be considered in the form of parol evidence to resolve the issue, precluding summary judgment.

“The Georgia Supreme Court has held that, absent fraud, accident, or mistake, parol evidence is generally inadmissible to alter the unconditional nature of a promissory note. [Cit.]” Brice v. Northwest Ga. Bank, 186 Ga. App. 871, 872 (368 SE2d 816) (1988).

Summary judgment was proper. Attkisson v. Cavanagh, 201 Ga. App. 633, 635 (411 SE2d 786) (1991).

Judgment affirmed.

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

       The second priority note is not at issue.


author: Blackburn, Judge.

text:
    A94A0041.
    BURTON v. THE STATE.
    (441 SE2d 470)
   Blackburn, Judge.

In a three-count indictment, the appellant, Jerry Burton, was charged with one count of aggravated child molestation and two counts of child molestation involving his natural daughter. Following a trial by jury, he was convicted of the offenses. On appeal, he asserts that the trial court erred in refusing to grant a mistrial when the victim testified concerning acts of molestation not charged in the indictment, and erred in allowing the State to introduce his custodial statement which was allegedly induced by promises made by an investigating officer. We affirm.

1. “[T]he state is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. This is true even if the defendant’s character is incidentally placed in issue.” (Citations and punctuation omitted.) Moody v. State, 206 Ga. App. 387, 390 (3) (425 SE2d 397) (1992); Garrett v. State, 188 Ga. App. 176 (1) (372 SE2d 506) (1988).

In the case sub judice, the victim, who was 14 years old at the time of trial, testified that in early June 1992, approximately three days after she moved in with Burton, Burton began sleeping with her and fondling her breasts and vagina. The fondling continued for approximately two weeks, at which time, he began having sexual intercourse with her. Burton continued to have intercourse with the victim every day until July 20, 1992, when the victim moved from the home. The victim also testified that Burton forced her to place her mouth on his penis three or four times and he placed his mouth on her vagina on six occasions. Although the indictment alleges that the act of aggravated child molestation occurred when Burton “placed his mouth upon the genitalia of [the victim],” the other acts of sodomy were properly admitted as a part of the res gestae of Burton’s continued sexual exploitation of the victim. Accordingly, the admission of this evidence was not cause for a mistrial. Garrett, supra.

While Burton asserts that he was surprised by the introduction at trial of evidence of the acts of sodomy committed on the victim and had no notice of these allegations, in his recorded statement given to police after his arrest, he admitted committing these acts on six occasions. Moreover, we reject Burton’s argument that a fatal variance occurred inasmuch as the evidence produced at trial was sufficient to authorize a rational trier of fact to conclude that Burton committed the offense of aggravated child molestation as averred in the indictment. Cf. Legg v. State, 207 Ga. App. 399 (4) (428 SE2d 87) (1993).

Burton further attempts to expand and bolster his enumeration by arguing in his brief that the trial court improperly charged the jury that either act of sodomy alleged by the victim could support a conviction of the offense. However, this court has repeatedly held that “on appeal an enumeration of error cannot be enlarged by brief to give appellate viability to an issue not contained in the original enumeration.” (Citations and punctuation omitted.) Cantrell v. State, 210 Ga. App. 218, 222 (3) (435 SE2d 737) (1993); Bridges v. State, 205 Ga. App. 664, 665 (1) (423 SE2d 293) (1992).

2. We next address Burton’s contention that his inculpatory custodial statement was induced by alleged promises made by the investigating officer.

At the Jackson v. Denno hearing, the investigating officer discussed his recorded custodial interview with Burton. During the hearing, the officer denied making any promises to the accused to induce the incriminating statement. The officer testified that Burton was advised of his Miranda rights before questioning, and Burton subsequently signed a rights waiver form which delineated his rights. Those rights were read aloud to Burton by the officer, and Burton appeared to understand all of these communications. The waiver form further contained the following statement: “I have not been promised anything.”

The investigating officer did indicate during the interview that Burton could receive substance abuse counseling if the acts of molestation occurred as a result of an alcohol dependency problem. He also informed Burton that he would not make the information discussed during the interview public knowledge, and that the court proceeding would be closed to the general public because the victim was a juvenile. The officer further encouraged Burton to tell the truth. Although the officer asked Burton during the interview if the sexual intercourse was consensual, and stated “that would make a big difference,” the officer testified at the hearing that he was not implying that Burton would receive lenient treatment; instead, he was distinguishing the possible conflict in the victim’s version of the events. Burton did not testify at the hearing. Based upon the uncontroverted evidence produced at the hearing, the trial court found that the officer’s statements did not constitute promises or inducements which influenced the making of the inculpatory statement.

Under Georgia law, only voluntary incriminating statements are admissible against the accused at trial. OCGA § 24-3-50. Under this Code section, to make an incriminating confession admissible, it must have been made “without being induced by another by the slightest hope of benefit or remotest fear of injury.” Within the context of OCGA § 24-3-50, the slightest hope of benefit refers to a lighter sentence. Helton v. State, 206 Ga. App. 600 (426 SE2d 172) (1992).

Decided February 15, 1994.

Summer & Summer, Chandelle T. Summer, for appellant.

Lydia J. Sartain, District Attorney, Ben L. Leutwyler III, Assistant District Attorney, for appellee.

Contrary to Burton’s contentions, the record does not show that the officer made any assurances to Burton that his sentence would be lighter if he gave an incriminating statement. The officer’s statement to the accused that substance abuse counseling was available was an offer of a collateral benefit which does not invalidate the statement. See Head v. State, 180 Ga. App. 901 (1) (350 SE2d 854) (1986); Hall v. State, 180 Ga. App. 366 (349 SE2d 255) (1986). In addition, the officer’s declaration that the general public would not have access to the proceedings does not render the statement excludable. Tyson v. State, 165 Ga. App. 22 (2) (299 SE2d 69) (1983). See also Johnson v. State, 170 Ga. App. 71 (2) (316 SE2d 160) (1984). Moreover, an officer’s advice to an accused “ ‘to tell the truth will not, without more, render a subsequent confession inadmissible under (OCGA § 24-3-50).’ [Cit.]” Clay v. State, 209 Ga. App. 266, 268 (1) (433 SE2d 377) (1993).

“ ‘When a trial judge has made a determination as to the voluntariness of a confession after a suppression hearing, such determination must be accepted by the appellate courts unless his decision is clearly erroneous.’ [Cit.]” Id. Based upon our review of the record, we find no error in the trial court’s admission of Burton’s custodial statement.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Johnson, Judge.

text:
    A93A1721.
    ALCOVY PROPERTIES, INC. et al. v. MTW INVESTMENT COMPANY.
    (441 SE2d 288)
   Johnson, Judge.

MTW Investment Company filed a complaint and notice of lis pendens seeking, inter alia, the cancellation of deeds conveying real property to Alcovy Properties, Inc., and Trustees of Lassiter Properties, Inc. Pension Plan. Alcovy and Lassiter filed various counterclaims. The trial court granted summary judgment to Alcovy and Lassiter as to MTW’s complaint. The Georgia Supreme Court affirmed that ruling without an opinion. The trial court then entered an order granting MTW’s motion to dismiss the defendants’ pending counterclaims for failure to state any claims upon which relief can be granted. Alcovy and Lassiter jointly filed a direct appeal from that order. This court, in an unpublished opinion, found that the direct appeal was improper and dismissed it for lack of jurisdiction. Thereafter, the trial court modified its order dismissing the counterclaims, expressly finding that there is no just reason for delay and directing that the order be entered as a final judgment under OCGA § 9-11-54 (b), from which Alcovy and Lassiter may directly appeal. Alcovy and Lassiter filed a timely appeal from that order.

1. Alcovy and Lassiter complain that the trial court erred in dismissing their counterclaims for slander of title to land. This complaint is without merit because their slander of title counterclaims are based on statements made by MTW in its complaint and notice of lis pendens, which are privileged. “All charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous.” OCGA § 51-5-8; see Panfel v. Boyd, 187 Ga. App. 639, 646-647 (4) (371 SE2d 222) (1988). The court did not err in dismissing the slander of title counterclaims. Compare South River Farms v. Bearden, 210 Ga. App. 156, 158 (435 SE2d 516) (1993).

2. Alcovy argues that the trial court erred in failing to grant its motion to add an abusive litigation counterclaim pursuant to Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). As Alcovy notes in both its brief and reply brief, the trial court never ruled on this motion. “Absent a ruling by the trial court, there is nothing for this court to review. [Cits.]” Krause v. Vance, 207 Ga. App. 615, 620 (11) (428 SE2d 595) (1993).

3. In their third enumeration of error, Alcovy and Lassiter contend that the court erred in dismissing both of their counterclaims for abusive litigation pursuant to Yost v. Torok, supra. Because, as stated in Division 2 of this opinion, the trial court did not rule on Alcovy’s motion to add such a counterclaim, Alcovy never had a pending Yost claim for the court to dismiss. This enumeration is therefore inapplicable to Alcovy.

Lassiter, however, did have a pending Yost claim which the trial court dismissed for failure to state a claim. “A pleading should not be dismissed for failure to state a claim unless it appears beyond a doubt that the pleader can prove no set of facts in support of his claim which would entitle him to relief.” (Citations and punctuation omitted.) Hyer v. C & S Nat. Bank &c., 188 Ga. App. 452, 454 (2) (373 SE2d 391) (1988). Lassiter claims that MTW’s complaint was substantially frivolous, groundless and vexatious because MTW completely lacked any legitimate legal claim to the property in question and merely filed the complaint to gain leverage in a personal dispute with a third party. If Lassiter can prove this set of facts, it might be entitled to relief for abusive litigation. Because it does not appear beyond a doubt that Lassiter can prove no set of facts in support of its claim, the trial court erred in dismissing Lassiter’s Yost counterclaim.

4. Alcovy and Lassiter argue that they are entitled to punitive damages based on their slander of title and Yost counterclaims. This argument is without merit. As discussed above in Division 1, the trial court properly dismissed the appellants’ slander of title claims, which therefore provide no basis for seeking punitive damages. Moreover, “[i]n an abusive litigation claim governed by Yost v. Torok, punitive damages are excluded, as the tort itself is designed as a deterrent.” (Citation and punctuation omitted.) Rice v. Cropsey, 203 Ga. App. 272, 273 (2) (416 SE2d 786) (1992).

5. Alcovy’s complaint that the court erred in dismissing its counterclaim for expenses of litigation pursuant to OCGA § 13-6-11 is without merit. “Attorney’s fees and expenses of litigation pursuant to OCGA § 13-6-11 are not available to a defendant in the absence of a viable independent counterclaim asserting a claim for relief independent of the assertion of the plaintiffs harassment, litigiousness and bad faith in bringing suit.” (Citations and punctuation omitted.) White v. Lance H. Herndon, Inc., 203 Ga. App. 580, 581 (4) (417 SE2d 383) (1992). Because Alcovy has made no showing that it asserted a viable counterclaim for relief independent of its claim of MTW’s stubborn litigiousness and bad faith, expenses of litigation pursuant to OCGA § 13-6-11 are not available to Alcovy.

6. Alcovy and Lassiter contend that the court erred in finding that the entire record is necessary to this appeal and ordering them to pay the cost of preparing the record. “The discretion granted the trial court by OCGA § 5-6-41 (f) vests it with a necessary control over the designation and transmittal of both record and transcript. The court’s decision in such matters will not be reversed absent a manifest abuse of discretion.” (Citations and punctuation omitted.) Sumner v. First Union Nat. Bank of Ga., 200 Ga. App. 729, 731 (6) (409 SE2d 212) (1991). We find no manifest abuse of discretion by the trial court and therefore its decision will not be reversed.

Judgment affirmed in part, reversed in part.

McMurray, P. J., and Blackburn, J., concur.

Decided February 16, 1994.

Wm. Thomas Craig, James E. Spence, Jr., for appellants.

Awtrey & Parker, Dana L. Jackel, Glass, McCullough, Sherrill & Harrold, Geoffrey H. Cederholm III, Deborah L. Britt, for appellee.

       Because Lassiter’s Yost counterclaim was filed prior to April 3, 1989, the exclusive remedy provision of the abusive litigation statute is inapplicable. OCGA § 51-7-85; Seckinger v. Holtzendorf, 200 Ga. App. 604, n. 1 (409 SE2d 76) (1991).


author: Beasley, Presiding Judge.

text:
    A93A2284.
    NORMAN v. THE STATE.
    (441 SE2d 94)
   Beasley, Presiding Judge.

Following the denial of his motion for new trial, Norman appeals his conviction for the robbery of a food mart cashier who was making the store’s nightly bank deposit. OCGA § 16-8-40.

About 11:00 p.m. on April 14, 1991, employees Moon and Bryant closed up the food mart and left to make the store’s bank deposit. As usual, they were escorted by a unit of the city police department. En route to the bank, the police unit was diverted when a bottle was thrown at the car. Moon and Bryant continued alone to the bank. As Bryant exited the car with the bank bag, she was grabbed from behind and thrown to the curb. The bank bag was taken from her, and the perpetrator ran through the bushes.

Norman and three others, including Norman’s brother, were indicted for commission of the crime. Co-indictee Smith testified as a State’s witness against Norman. He outlined the conspiracy: Norman’s brother and the fourth man threw a beer bottle at the police car to distract it. Norman and Smith were waiting in a carport behind hedges near the bank. After determining that the distraction had worked, Norman went through the hedges and snatched the bank bag from Bryant. The four men met at Norman’s sister’s house and split the money.

1. Norman contends first that the trial court erred in failing to give the jury a curative instruction or to rebuke the prosecutor when the prosecutor intentionally placed Norman’s character in issue during the cross-examination of Norman’s sister. See OCGA § 24-9-20 (b).

The following colloquy is at issue.

“[Prosecutor]: Ms. Norman, you’re the sister of the defendant?

“[Witness]: Yes, I am.

“[Prosecutor]: You try to help out your brother as much as you can, don’t you?

“[Witness]: Do I try to help him out as much as I can?

“[Prosecutor]: Right.

“[Witness]: No. I feel, you know, if they’re in the wrong, they’re in the wrong, but, you know, if I know that they was in my presence, you know, I can’t do nothing but tell you the truth.

“[Prosecutor]: You’ve tried to help him in the past on some things, haven’t you? You never tried to help — you know me, don’t you?

“[Witness]: Yeah, I remember you.

“[Prosecutor]: You’ve tried to help him on other times, haven’t you?

“[Witness]: No. I haven’t tried to help him.

“[Defense Counsel]: I’m going to object. And I don’t know what [the prosecutor] is getting at, but maybe he does.

“[The Court]: Yes, sir. I’m sure that he must know limitations.

“[Prosecutor]: I know and she knows.

“[The Court]: I would certainly think that he would follow the rules of evidence.”

Defense counsel voiced no specific objection, either that defendant’s character was being improperly placed in issue or otherwise. Although the trial court apparently understood the basis, normally “ ‘(t)here is nothing for us to review since appellant failed to make his objection at trial on the specific ground he attempts to raise on appeal.’ [Cit.]” Ely v. State, 192 Ga. App. 203, 205 (3) (384 SE2d 268) (1989). Neither the trial court nor we are required to guess.

Even assuming the ground now urged is what was implicitly asserted and rejected at trial, the contention fails. The apparent intent of the questioning was not to impugn Norman’s character but rather to cast doubt on the witness’ credibility, including her denial that any money bag was brought into her apartment, by showing her bias in favor of her brother and her history of coming to his aid. Moreover, even if the jury could infer from the colloquy that defendant had a prior brush with the law, it did not improperly place his character in evidence. Bennett v. State, 177 Ga. App. 643, 644 (340 SE2d 273) (1986).

The prosecuting attorney’s attempted testimony or comment on what the evidence would show if he were allowed to elicit it is improper and should have been rebuked even in the absence of a specific objection to it or motion for mistrial. See in this connection State v. Kennedy, 49 Or. App. 415, 619 P2d 948 (1980), rev’d and remanded sub nom. Oregon v. Kennedy, 456 U. S. 667 (102 SC 2083, 72 LE2d 416) (1982), aff’d sub nom. State v. Kennedy, 61 Or. App. 469, 657 P2d 717, aff’d 295 Or. 260, 666 P2d 1316 (1983). The failure to do so does not require reversal in this case. See Jones v. State, 250 Ga. 166, 168 (3) (296 SE2d 598) (1982).

2. Norman enumerates as error the failure to exclude certain testimony by chief jailor Burgess. She testified that after she handed Norman an application for appointed counsel and Norman saw the charges against him which were reflected on the form, Norman commented to Burgess “that he didn’t see how he could be charged with aggravated assault when he did not use a stick or anything to hit the woman, he just knocked her down when he robbed her” and “that they could only be charged — they could only charge one person with aggravated assault, the others would have to be charged with simple battery or accessory.” Her testimony was based on her recollection as refreshed by notes she made immediately after the incident.

The question is whether the jailor, a peace officer, was required to give Norman the Miranda warnings prior to, and in connection with, the form. He had been advised of his rights under Miranda at the time of his arrest approximately two weeks previously. She had taken the forms back to the cell for three inmates, one of whom was defendant. The forms are provided to the jail to give to all indigents who do not have counsel. It was routine for her to do this, so it could be determined whether appointed counsel was needed. She handed defendant the form and told him that if he wanted an appointed attorney, he had to complete and sign it. He looked at the form and, as a result of seeing the precise charges against him as recited on the form, he made the incriminating statements. The jailor did not ask any questions other than whether he wanted an appointed attorney.

As urged by Norman, the issue under the federal constitution is governed by Rhode Island v. Innis, 446 U. S. 291 (100 SC 1682, 64 LE2d 297) (1980). In that case, the Court established that “the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301.

The form is not in the record, but the record does show its nature and purpose and the fact that the charges were contained on it. We might consider this exercise as questioning “normally attendant to arrest and custody,” since it was a matter of routine so as to assure the jailed person’s right to counsel. This would exclude it from the type of interrogation which must be preceded by Miranda warnings. However, we do not choose to do so, because it may not always be routine and because there is a stronger leg for the analysis to stand on.

Presenting a jailed person, who has no attorney, with a questionnaire to determine eligibility for appointed counsel does not, without more, constitute “[a] practice that the police should know is reasonably likely to evoke an incriminating response from a suspect. ...” Id. at 301. There is no evidence of coercion or subterfuge. There is no evidence of any question on the form which would be reasonably likely to evoke an incriminating response. The subject matter of the questions, so far as the record indicates, related not to the crime at all but rather to a different subject matter, i.e., Norman’s financial condition and desire for appointed counsel. The nature of such questions and their context in light of the purpose for asking them render them not “reasonably likely to elicit an incriminating response.” Id. at 302.

More importantly in this case, it was not the questions which elicited the statements. It was the recitation of the charges against the jailed arrestee. As far as the jailor knew, this was the first time Norman was made aware of the precise charges. When he saw them, he reacted in a spontaneous verbal way, responding when no response was called for. There is no evidence, nor can we surmise, that the jailor should have known that presenting the charges to Norman in such a manner was reasonably likely to evoke an incriminating response. Nor is there any evidence that the charges recited on the form were contrived or fictitious, so as to elicit an outburst, such as the practices discussed in Miranda and referred to in Innis, supra at 299.

We hold, then, that the evidence of defendant’s statements was not inadmissible. They were made after Burgess merely handed Norman the form and “told him that if he wanted an appointed attorney, he needed to fill it out and sign it.” No Miranda violation occurred.

3. Norman also contends that in responding to a defense objection, the trial court improperly expressed an opinion on the facts of the case, thereby contradicting the fundamental presumption of innocence.

During redirect examination of. jailor Burgess as to whether or not it was fair to assume that Norman knew what he was arrested for when she gave him the form to complete after he had been jailed, defense counsel objected that “the facts in the matter or what [Burgess is] confined to testify about, [Burgess] wasn’t present at the time [Norman] was arrested and doesn’t know —” The court stated, “Well, just — you know, it’s a. matter of common sense. Certainly, everybody would know why they are arrested, I think, or they would be told why they were being arrested or were arrested.”

Norman concedes that no objection was made at trial because trial counsel “probably found it awkward to object to a comment made by the trial judge.” He urges that review is required because the court’s comments violated fundamental due process.

First, trial counsel’s legal and ethical obligations to object to perceived trial error are not obviated in circumstances in which counsel might feel “awkward.” Appropriate exception to court rulings is understood as not being a personal affront to the court but a necessary step in preserving valid legal issues for review. See Division 1, supra.

In any event, the comments at issue were not opinion about the facts of the case in contradiction to, or as undermining, the presumption of Norman’s innocence. They addressed whether defendant knew what he was under arrest for, at the time he made the incriminating statement. This was not a contested issue of fact. The jailor had already testified that the statement was made in response to defendant’s seeing the charges on the indigency form when she handed it to him. Although the court’s comment was an unnecessary statement of what the court perceived as common knowledge of procedure and what an arrested person would know, in ruling on defendant’s implied hearsay objection to the State’s double question, the comment did not constitute reversible error.

4. Next, Norman contends that the court erred in failing to instruct the jury that violation of the order of sequestration of witnesses by the prosecutor in regard to State’s witness Glaze should be considered in determining the weight and credit accorded to Glaze’s testimony.

Defense counsel did not request any such instruction to the jury but rather requested that Glaze “be precluded from any testimony.” More significantly, however, the complained-of exchange between the prosecutor and State’s rebuttal witness which occurred in the courthouse hallway on that morning of trial did not violate the rule of sequestration. “The rule is that ‘either party shall have the right to have the witnesses of the other party examined out of the hearing of each other.’ OCGA § 24-9-61. The rule does not prohibit discussions between an attorney [for a party in] the case and a prospective witness, at least so long as the attorney talks to him separately from the other witnesses and does not inform him of previous testimony. [Cits.]” Ross v. State, 254 Ga. 22, 28 (4) (a) (326 SE2d 194) (1985). There is no suggestion that other witnesses were present during the discussion with Glaze or that the prosecutor improperly informed her of other testimony.

Norman argues in his brief that the court should have made further inquiry about possible violation of the rule. This is not considered because “[e] numerations may not be enlarged by brief on appeal to cover issues not contained in the original enumeration. [Cit.]” Newberry v. State, 184 Ga. App. 356, 357 (1) (361 SE2d 499) (1987).

5. The final enumeration is that “the trial court erred by giving an Allen charge to the jury prematurely and then directing the jury to again retire ‘for a reasonable time. . . .’ ” He maintains that the combination of the charge and the instruction to retire under such “reasonable time” limitation placed undue pressure on the jury to expedite consideration of the evidence in order to reach a verdict.

Defense counsel made no objection to the substance of the charge in general nor specifically to the now-targeted language. In any event, “ ‘[a] trial court may, after the jury has had a case under consideration and indicates that it is unable to agree on a verdict, inquire how the jury stands numerically. [Cits.]’ [Cit.] . . . ‘ “The decision of whether to give a jury in disagreement the ‘Allen’ charge is generally left in the discretion of the trial judge.” [Cit.]’ [Cit.]” Banks v. State, 169 Ga. App. 571, 572 (2) (314 SE2d 235) (1984).

Decided February 16, 1994.

Huguenin, Annis & Lewis, John M. B. Lewis IV, for appellant.

Dennis C. Sanders, District Attorney, John C. Hammond, Assistant District Attorney, for appellee.

The giving of the charge was not an abuse of the court’s discretion. It was not given until the second day of deliberation and after the court twice perceived that the jury stood divided. Nor was the charge itself error. Asking the jury to retire for a reasonable time did not impermissibly restrict its deliberations nor imply that if it did not render a verdict shortly, a mistrial would result.

Judgment affirmed.

Cooper and Smith, JJ., concur.

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).


author: Cooper, Judge.

text:
    A93A2323.
    A93A2324.
    BYERS v. THE STATE. THOMPSON v. THE STATE.
    (441 SE2d 290)
   Cooper, Judge.

Appellants, Ronald Byers and Cecila Thompson, were jointly tried and convicted of possession of cocaine. They appeal separately from their convictions and sentences. Casanova Pritchett, a third defendant, was not tried with appellants.

The evidence adduced at trial showed that around midnight on February 20, 1992, two detectives were sitting in a tree surveilling a known drug area with binoculars when they observed appellants Byers and Thompson drive up in Byers’ car and stop near a group of men standing in the street. Several of the men walked up to the driver’s side of the car and spoke briefly to appellants. Byers drove off, circled the block and returned. Thompson got out and Byers drove around the block again. Thompson walked up to co-defendant Pritchett who searched her. Thompson handed money to Pritchett who shook out several small objects from a small bottle and gave them to Thompson. Byers returned, Thompson got into the car and they left. The detectives called for a patrol car which stopped Byers’ vehicle a short time later. The officer requested that Thompson exit the car and, as she did so, a white napkin fell out on the ground. When the officer observed Thompson trying to step on the napkin, he examined it and found a piece of crack cocaine inside. He also found two pieces of crack cocaine and some powdered crack cocaine next to the napkin. A set of scales was also found in the car. The detectives testified at trial that, based on their experience, the transaction they witnessed appeared to be a drug buy and that it was not uncommon for a seller to tell the buyer to leave briefly while the seller retrieved the drugs.

Thompson testified and denied that the cocaine was hers. She testified that Byers had given her a ride and that she had met up with Pritchett because Byers had been looking for marijuana. She further testified that when Byers saw the police he said “I’m throwing the sh— out the window” and that he threw a medicine bottle containing “Xanax and stuff like that out the window.” Byers testified that Thompson had asked him to give her a ride to the area where he dropped her off. Thompson wanted him to wait for her; he was nervous about the neighborhood, so he drove around once and came back. He denied any knowledge of the cocaine or the scales. He further denied having driven around the block twice or talking to the men in the street.

1. Thompson and Byers both contend the evidence was insufficient to support their convictions.

(a) As related above, the detectives observed Thompson purchase several small objects from co-defendant Pritchett in what the detectives believed to be a drug transaction. When Thompson and Byers were pulled over a short time later, the arresting officer saw a napkin which contained several pieces of crack cocaine fall out of the car with Thompson. Further, Thompson tried to either hide or destroy the contraband by stepping on the napkin. This evidence was sufficient to enable a rational trier of fact to find Thompson guilty of possession of cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(b) Byers contends that the evidence was insufficient to convict him because there was no evidence that he was in possession of the cocaine which fell out of the car with Thompson. Specifically, Byers contends that the only connection between him and the cocaine is that Thompson was a passenger in his car. He correctly argues that a finding of constructive possession must be based on more than mere “spacial proximity.”

“Possession may be joint or exclusive, and actuál or constructive. As a general rule, when drugs are found in the immediate presence of the defendant, the jury is authorized to find they are in constructive possession of the accused. To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. Whether this burden has been met is a question for the jury, and its determination will not be disturbed unless the verdict is insupportable as a matter or law.” (Citations and punctuation omitted.) Carswell v. State, 201 Ga. App. 746, 747 (412 SE2d 572) (1991).

The detectives testified that they observed Byers and Thompson drive up and speak to a group of men under surveillance for suspected drug activity from the driver’s side of Byers’ car. Byers circled the block and Thompson exited his car and, after being searched by Pritchett, Thompson purchased several small objects from Pritchett while Byers again circled the block and picked Thompson up. The detectives testified that they believed this to be a drug transaction and that it is commonplace for purchasers to circle the block while the seller retrieves the drugs. Shortly after the transaction, Byers’ car was stopped and the cocaine and the napkin, which were apparently in plain view, fell out of Byers’ car with Thompson. Although Byers claimed he only gave Thompson a ride, he also denied driving around the block twice or speaking to the suspected drug sellers. The evidence presented at trial was sufficient to enable a rational trier of fact to find Byers guilty beyond a reasonable doubt of possession of cocaine under the standard of Jackson v. Virginia. See Jones v. State, 207 Ga. App. 46 (427 SE2d 40) (1993); Carswell, supra at 748.

2. Thompson, who is black, also contends the trial court erred in denying her motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), because the State improperly used its peremptory challenges to strike all three blacks from the pool of prospective jurors. “The preliminary issue of whether [Thompson] established a prima facie case of discrimination is moot because the prosecutor offered purportedly race-neutral explanations for the peremptory challenges and the trial court ruled on the ultimate question of intentional discrimination. [Cit.] We therefore need only address the sufficiency of the prosecutor’s explanations for the exercise of the [three] peremptory strikes of black [veniremen].” Chunn v. State, 210 Ga. App. 209, 210 (2) (435 SE2d 728) (1993).

The trial court’s findings are entitled to great deference and will be affirmed unless clearly erroneous. Higginbotham v. State, 207 Ga. App. 424, 426 (3) (428 SE2d 592) (1993). “The prosecution must show that its peremptory strikes of jurors are neutral, related to the case to be tried, and clear and reasonably specific. [Cit.]” Berry v. State, 263 Ga. 493, 494 (435 SE2d 433) (1993). Here, the prosecutor explained that he struck all three potential jurors because they knew the defendant. He also explained that one prospective juror had a daughter who had been prosecuted by the district attorney’s office for a drug offense and that another had voted against the State in a prior criminal trial. He further explained that the third prospective juror “seemed to know [Thompson] fairly well.”

Contrary to Thompson’s contention, the prosecutor’s explanation that he used peremptory challenges to strike the prospective jurors because they knew the defendant provides a proper and racially neutral basis for the exercise of his challenges. Mathis v. State, 204 Ga. App. 244, 245 (3) (418 SE2d 800) (1992); Glanton v. State, 189 Ga. App. 505 (2) (376 SE2d 386) (1988). The prosecutor’s concern that two of the jurors might be biased against the State also provides a racially neutral reason for the use of his challenges. See Chunn, supra at 210 (2). The trial court did not err in denying the Batson motion. See Mathis, supra at 245 (3).

Decided February 16, 1994.

J. Tracy Ward, for Byers.

Bates, Kelehear, Starr & Toland, James E. Toland, Jr., for Thompson.

Jack O. Partain III, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.

Judgments affirmed.

Beasley, P. J., and Smith, J., concur.


author: Birdsong, Presiding Judge.

text:
    A94A0063.
    LONG v. MARINO et al.
    (441 SE2d 475)
   Birdsong, Presiding Judge.

Vicki Long filed suit against Eugene A. Marino and the Catholic. Archdiocese of Atlanta, alleging tort and breach of implied contract in that Marino, as Archbishop and agent of the Catholic Archdiocese, breached his duty as priest/counselor to her by taking advantage of her susceptible state and sexually abusing her, and that he married her and cohabited with her under an implied duty to provide financial support in return for her agreement to live with him and maintain sexual relations. The trial court granted defendants’ motions for summary judgment to dismiss on grounds that the statute of limitation for tortious injury had lapsed, and that the claim under an implied contract is illegal and unenforceable. Long appeals. Held:

1. The trial court did not err in granting defendants’ motions for summary judgment on the tort claim. Appellant testified in deposition that the last occurrence of the alleged sexual abuse was on April 30, 1990. This suit was filed November 3, 1992. This suit was not brought within two years after the cause of action accrued, as required by OCGA § 9-3-33.

Appellant contends the statute of limitation was tolled by her inability to serve Marino with a previous suit raising these claims, because of his removal from the state beginning April 30, 1990. See OCGA § 9-3-94; Smith v. Griggs, 164 Ga. App. 15 (296 SE2d 87). However, the record shows appellant was aware in May 1991, that Marino was living at a certain address in Michigan. Appellant does not contend this information was incorrect or that she could not serve him with the prior suit in May 1991, when she learned of his location; the dismissal of her prior suit on August 17, 1992, was not caused by her inability to locate him for service, but by her failure to serve him while knowing of his whereabouts. The statute of limitation was not tolled by his absence from the state because service of the prior suit raising this claim was not impossible. Railey v. State Farm &c. Co., 129 Ga. App. 875 (201 SE2d 628).

2. The grant of summary judgment to both defendants on the count for breach of implied contract was correct.

(a) Appellant contends there was an implied contract between Marino and herself, based on Marino’s agreement to support her in exchange for her agreement to cohabit with him and provide sexual relations. This agreement was unlawful. “ ‘(T)he law will not enforce a contract founded upon immoral consideration. Unmarried cohabitation would constitute immoral consideration.’ ” Liles v. Still, 176 Ga. App. 65, 66 (335 SE2d 168). “In Georgia, sexual intercourse outside of marriage is a criminal offense. [Cit.] ‘It is well settled that neither a court of law nor a court of equity will lend its aid to either party to a contract founded upon an illegal or immoral consideration.'’ Samples v. Monroe, 183 Ga. App. 187 (358 SE2d 273); see Rehak v. Mathis, 239 Ga. 541, 543 (238 SE2d 81). Meretricious sexual relationships are by nature repugnant to social stability, and our courts have on sound public policy declined to reward them by allowing a money recovery therefor.

(b) Appellant asserts that the implied contract was based on a legal marriage between Marino and herself. She contends there is no contradiction of her assertion in affidavit that on December 27, 1988, she and Marino flew to New York and were “officially married.” However, appellant has failed to cite to us in the record any marriage license or certificate or any other evidence of an “official” marriage.

In the circumstances of this case appellant’s assertion that she and Archbishop Marino were married in common law cannot be sustained. The basis of a common law marriage in Georgia is the inference of marriage based on proof of cohabitation and the parties having held themselves out to the world as husband and wife; such proof may be made by general repute among neighbors and others in a position to know the facts; “ ‘ “[the] presumption . . . from connubial habit is one of the strongest known to the law, and is to be repelled only by clear evidence.” ’ ” Brown v. State, 208 Ga. 304, 306 (66 SE2d 745); Simeonides v. Zervis, 127 Ga. App. 506, 508 (194 SE2d 324). The clear evidence is that Marino and appellant could not marry, and could not cohabit and hold themselves out as husband and wife, while he was a Catholic Archbishop. A party seeking to prove a common law marriage founded on cohabitation must show every element necessary to the validity of a marriage by proving not only that the marriage was consummated, but that the alleged spouse was single and possessed every other qualification for a valid marriage. Addison v. Addison, 186 Ga. 155 (197 SE 232). Notwithstanding whether Marino’s religious employment would have prevented him from entering a valid legal marriage (of which there is no documentary evidence), Marino did not possess the qualifications for a valid common law marriage in praesenti (Hubbard v. State, 145 Ga. App. 714 (244 SE2d 639)) while he was a Catholic Archbishop.

Decided February 16, 1994.

Michael T. Thornton, for appellant.

Smith, Gambrell & Russell, David M. Brown, Matthew S. Coles, Kirwan, Goger, Chesin & Parks, P. Bruce Kirwan, Self, Mullins, Robinson & Marchetti, Richard A. Marchetti, for appellees.

3. Since Marino had no obligation under an implied contract with appellant, his employer the Catholic Archdiocese cannot be liable. Even if there were an implied contract between Marino and appellant, under the statute of frauds the Catholic Archdiocese is not liable for that debt in the absence of a written agreement to assume it. OCGA § 13-5-30 (2).

4. Appellant contends the trial court erred in granting a protective order postponing Marino’s deposition until resolution of these motions for summary judgment. The bases for the trial court’s correct grant of summary judgments on grounds of a statute of limitation bar to the personal injury claim and on grounds of the illegality and unenforceability of an implied contract to support, cannot be changed by further discovery. The matter of allowing or postponing a deposition is in the trial court’s discretion. Nixon v. Sandy Springs Fitness Center, 167 Ga. App. 272 (1) (306 SE2d 362). The trial court did not abuse its discretion in postponing this deposition, and we cannot find reversible error in the trial court’s grant of a protective order postponing Marino’s deposition.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


text:
    A94A0048.
    BURKE v. BI-LO, INC.
    (441 SE2d 429)
   Blackburn, Judge.

The appellant, Peggy Burke, commenced this action against Bi-Lo, Inc. to recover for personal injuries sustained as a result of a slip and fall in a grocery store. The trial court granted summary judgment for Bi-Lo, and this appeal followed.

During the evening of July 14, 1990, Burke and several family members went to a Bi-Lo store to pick up a few groceries. As they began to shop, her daughter observed an oily substance spilled on the floor and reported it to the store manager. According to Burke and her daughter, the store manager immediately cleaned up the spill; while doing so, the manager told them that a few minutes earlier, he had chased away three boys for spilling cooking oil onto the floor, and that he had already cleaned up other spills.

Burke and her family continued shopping until, 15 to 20 minutes later at most, Burke slipped and fell on another pool of oil in another aisle. Immediately before the fall, Burke handed her infant grandchild back to her daughter; she fell as she was turning around and reaching for the shopping cart. The spill was almost three feet in diameter, and Burke acknowledged that if she had been looking straight down without the shopping cart in front of her, she would have seen it. The lighting in the store at the time was average.

In his deposition, the store manager testified that he had no recollection of the incident. He explained that the store’s routine inspection procedure required management to check the floor throughout the day, every hour on the hour. However, there was no record of the floor inspections, and he had no knowledge of whether the floor had been inspected on the evening in question within an hour of Burke’s fall.

An owner/occupier of premises has a duty to keep those premises safe for its invitees. OCGA § 51-3-1; Thompson v. Regency Mall Assoc., 209 Ga. App. 1 (432 SE2d 230) (1993). “An invitee enters upon the premises under an implied representation, or assurance, that the land has been prepared and made ready and safe for his reception. The invitee is entitled to expect the possessor will exercise reasonable care to make the land safe for his entry. [Cit.] It is this implied representation that is made to the public, by holding the land open to them, that it has been prepared for their reception, that it is safe, that is the basis for the possessor’s liability. [Cit.]” Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 294 (322 SE2d 737) (1984).

In order to recover for a slip and fall due to a foreign substance on the floor, the plaintiff must show that the defendant had actual or constructive knowledge of the hazard, and that the plaintiff was without equal knowledge of such. Alterman Foods v. Ligón, 246 Ga. 620 (272 SE2d 327) (1980). “[Liability for injuries resulting from an invitee’s slip and fall on a proprietor’s premises is determined by the relative knowledge possessed by the proprietor and the invitee of the condition or hazard which resulted in the injury. The basis of the proprietor’s liability is his superior knowledge. . . .” Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (422 SE2d 305) (1992).

In the instant case, there was no evidence that either Burke or Bi-Lo had actual knowledge of the spill on which Burke slipped and fell. The dispositive issue thus is whether the parties had equal constructive knowledge of the hazard.

When Burke’s family reported the first spill to the store manager soon after they began shopping, Burke was informed that some children had spilled a substance on the floor throughout the store earlier in the evening. However, that information did not heighten her duty beyond that of exercising ordinary care for her own safety. An invitee is not required to look for defects continuously and without interruption. See Thompson v. Regency Mall Assoc., supra.

Conversely, when Burke’s family reported the first spill, the store manager was thereby informed that any previous effort to clean up the floor, after chasing away the mischievous boys, had been inadequate. Upon such notification, reasonable care on the part of the store manager would have called for inspecting the premises once again for additional spills. However, the record is silent as to any such effort.

The store manager denied any memory of the incident, and, although he explained that normal store procedure called for inspection of the floors every hour on the hour, he had no knowledge or memory of whether the floor had been inspected prior to Burke’s fall on the evening in question. The evidence thus failed to negate the possibility that Bi-Lo did not exercise reasonable care in this case, even if the store had a general inspection routine. See Hilsman v. Kroger Co., 187 Ga. App. 570 (370 SE2d 755) (1988); Flood v. Camp Oil Co., 201 Ga. App. 451 (411 SE2d 348) (1991). Further, in the absence of any evidence that Bi-Lo conducted a reasonable inspection of the premises prior to the fall, Burke was not required to establish how long the spill had remained on the floor. Jackson v. Wal-Mart Stores, 206 Ga. App. 165, 169 (424 SE2d 845) (1992).

Under these circumstances, the store manager’s constructive knowledge of the danger of additional spills on the floor must be deemed greater than any knowledge imputable to Burke. If the discovery of the first spill put Burke on notice of the possibility of other spills, the store manager’s response to that discovery provided additional assurance that the store had already taken measures to eliminate the hazard.

Bi-Lo argues that it was entitled to summary judgment because the evidence demanded a finding that Burke failed to exercise ordinary care for her own safety by not seeing the spill, inasmuch as (1) the spill was almost three feet in diameter; (2) the store lighting was adequate; and (3) the store maintained no distraction that prevented her from noticing the spill. In so arguing, however, Bi-Lo does not address why the spill would not have been obvious to it in the exercise of its duty to inspect and maintain safe premises, a duty of which Bi-Lo was reminded when Burke’s family reported the first spill several minutes prior to Burke’s fall. See Thompson v. Regency Mall Assoc., supra. The evidence created a factual issue regarding Burke’s exercise of ordinary care, but it did not demand a finding on the issue as a matter of law as urged by Bi-Lo.

Decided February 4, 1994

Reconsideration denied February 17, 1994

Reynolds & McArthur, Laura D. Hogue, Charles M. Cork III, for appellant.

Anderson, Walker & Reichert, Walter H. Bush, Jr., Michael A. Mills, John P. Cole, for appellee.

In summary, in moving for summary judgment, Bi-Lo had the burden of showing that no genuine issue of fact existed as to its lack of superior knowledge of the foreign substance on the floor of its premises. Hilsman v. Kroger Co., supra. In this regard, the evidence failed to eliminate a factual issue as to whether Bi-Lo exercised reasonable care in inspecting the property to make it safe for its invitees. Before Burke fell, the store manager became aware of the inadequacy of his previous efforts to clean up all of the substance spilled by some children earlier in the evening, thereby creating a duty to re-inspect the premises, and Bi-Lo was unable to show that such a re-inspection occurred. Further, the store manager’s response to the discovery of the first spill reported by Burke’s family provided some assurance that the floor was clean when the Burkes resumed their shopping. Under these circumstances, Burke cannot be said to have had equal or superior knowledge of the hazard as a matter of law, and the trial court erred in granting summary judgment for Bi-Lo.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A94A0134.
    GRADY v. THE STATE.
    (441 SE2d 253)
   Blackburn, Judge.

Appellant, Charles Brent Grady, was charged in an accusation with two counts of DUI, leaving the scene of an accident, following too closely, and failure to maintain lane. After a jury trial, Grady was found guilty of leaving the scene of an accident and following too closely. Grady appeals the trial court’s denial of his motion for a new trial.

1. In his first enumeration of error, Grady contends that the trial court erred in allowing testimony regarding his general reputation and character into evidence. Grady asserts that the testimony concerning his marital status, the number of times he was divorced, and the fact that he did not maintain a checking account improperly placed his character in evidence. This testimony was admitted, over defense counsel’s objection, during the State’s cross-examination of Grady.

“Controlling the scope or extent of cross-examination is a matter resting within the sound discretion of the trial court and, in the absence of an abuse of discretion in controlling the scope or extent thereof, an appellate court will not interfere.” (Citations omitted.) Stephens v. State, 207 Ga. App. 645, 646 (428 SE2d 661) (1993). The record establishes that Grady’s non-responsive answer to the State’s question raised the issue of his marital status. Furthermore, we do not agree that testimony indicating that Grady did not maintain a checking account was evidence of bad character. In any event, evidence concerning Grady’s financial status was relevant to a possible motive on the charge of leaving the scene of the accident. “If evidence is relevant and material to an issue in a case, it is not inadmissible because it incidentally puts the defendant’s character in issue.” (Citations and punctuation omitted.) Pittman v. State, 207 Ga. App. 895, 897 (429 SE2d 337) (1993). The record does not establish that the trial court abused its discretion.

2. Grady asserts that he did not receive a fair trial as a result of the State’s statements to the jury in its closing argument that Grady was a parasite and a coward. Grady argues that the State’s comments were improper and inflammatory.

“[I]t is permissible for counsel to draw deductions from the evidence regardless of how illogical and unreasonable, and this is a matter for reply by adverse counsel, not for rebuke by the court. Thus it was for defense counsel to reply to the district attorney’s deduction that the [defendant was a parasite and a coward]. If the challenged remark is not such as would be likely to prejudice the defendant’s right to a fair trial, such will not constitute reversible error.” (Citations and punctuation omitted.) Rogers v. State, 205 Ga. App. 739, 744 (423 SE2d 435) (1992). “Moreover, the record discloses that [a] motion for mistrial was not timely made when the impropriety occurred. In such instances, the proper test for reversible error is not whether the argument was objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of trial. [Cits.]” Bogan v. State, 206 Ga. App. 696, 701 (426 SE2d 392) (1992). No reasonable probability exists that the alleged improper statements changed the result of the trial.

3. Grady asserts that the trial court’s refusal to give his oral request to charge the jury on the provisions of OCGA § 40-6-273 was error. However, Grady was not charged with violating the duty to report accidents as set out in OCGA § 40-6-273. Furthermore, Grady failed to submit a written request to charge on this Code section. Therefore, the trial court’s failure to so charge is not error. Bullock v. State, 202 Ga. App. 65 (1) (413 SE2d 219) (1991).

Decided February 2, 1994

Reconsideration denied February 17, 1994.

Johnson & Benedict, Richard E. Johnson, for appellant.

David McDade, District Attorney, Jackie N. Stanton, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A94A0225.
    HARRIS v. THE STATE.
    (441 SE2d 255)
   Blackburn, Judge.

The appellant, Willie James Harris, was convicted of possession of cocaine with intent to distribute, and possession of marijuana with intent to distribute. Harris was initially tried in April 1992, but that proceeding ended in a mistrial, and he was retried in October 1992. On appeal, he contends that the trial court erred in denying his motion to bar his second prosecution, and in denying his motion for mistrial asserted in the second trial.

1. During the first trial, after the jury was sworn, the State moved for a continuance because a state crime lab witness who analyzed the contraband did not appear for trial. When the trial court denied that request, the prosecutor attempted to prove the suspected contraband was cocaine and marijuana by the testimony of the arresting officer. After establishing that the contraband was found in Harris’s jacket pocket, the prosecutor reiterated by asking that officer: “And those were found —?” Before the prosecutor finished the question, the officer responded: “To be positive at the crime lab, for marijuana and —The prosecutor interrupted the officer’s response by clarifying: “I mean where were they found?” The trial court then granted defense counsel’s motion for mistrial, on the grounds that the question and answer improperly brought in the results of the state crime lab report.

Where a mistrial is granted at a defendant’s request, normally the defendant may be tried again. State v. Maddox, 185 Ga. App. 674 (365 SE2d 516) (1988). However, “if a mistrial is granted on the grounds of prosecutorial overreaching and such was motivated by bad faith on the part of the prosecuting attorney or with the intention to harass or prejudice the defendant, for example, by successive prosecutions or by declaration of a mistrial in order to afford the prosecution with a more favorable opportunity to convict, then a defendant’s retrial is barred. [Cits.]” Id. at 675.

At the hearing on the motion to bar the second prosecution, the former prosecutor explained that he had subpoenaed the state crime lab witness for trial, and the week before trial had confirmed the witness’s availability. However, he had not been able to contact her subsequently to inform her exactly when to appear. The prosecutor acknowledged that when the trial court denied his request for a continuance, he had met with the arresting officer and advised him that it would be necessary to establish by the officer’s testimony that the contraband was cocaine and marijuana. However, he denied discussing or suggesting the contents of the officer’s testimony. He also acknowledged that he was pleased when the trial court declared a mistrial, but denied manipulating the arresting officer’s testimony so as to goad the defendant into moving for mistrial.

In denying Harris’s motion to bar the second prosecution, the trial court observed that during the first trial the prosecutor (1) may have misrepresented the extent of his communications with the state crime lab witness, and (2) may have violated the spirit of the rule of sequestration when he advised the arresting officer of the evidentiary dilemma presented by the absence of the state crime lab witness. However, the court concluded that the prosecutor’s actions did not rise to the level of prosecutorial misconduct intended to subvert the double jeopardy clause. Under the circumstances of this case, we agree and find that the trial court did not abuse its discretion in denying the motion to bar the prosecution.

2. Harris also contends that the trial court should have granted his motion for mistrial asserted in the second trial, based upon an atmosphere of anti-drug fervor generated by a rally held on the courthouse steps during the week of his trial, which some of the jurors may have attended.

The record shows that after the statutory qualification of the jury panel, in which the trial court inquired as to any prejudice or bias felt by the potential jurors, defense counsel had no objections to the qualifications of the panel. Following general voir dire of the panel, defense counsel also indicated that he had no individual voir dire questions to propound. Although defense counsel observed during voir dire that some of the jurors wore red ribbons in support of the anti-drug rally, it was not until after the jury was selected and sworn that defense counsel raised the question of the jury’s partiality resulting from the rally.

Under these circumstances, Harris’s challenge of the jury’s impartiality was untimely. If known to a party or his counsel, such an objection must be made before the jurors are sworn. OCGA § 15-12-167.

Decided February 2, 1994

Reconsideration denied February 17, 1994

Gilbert J. Murrah, for appellant.

J. Brown Moseley, District Attorney, Ronald S. Smith, Assistant District Attorney, for appellee.

Nevertheless, even if the objection had been raised timely, the trial court properly denied the motion for mistrial. “[A] juror who has fear of, or some trepidation to, or some particular abhorrence to, a specific crime, is [not] per se disqualified for cause as a juror in a trial of that type criminal case. We conclude most law-abiding citizens find . . . crime abhorrent.” Harris v. State, 178 Ga. App. 735, 736-737 (344 SE2d 528) (1986). In the instant case, there was no showing that any anti-drug sentiments encouraged by the rally were directed specifically towards Harris as an offender, rather than that particular type of offense, and the trial court thus did not abuse its discretion in denying the motion for mistrial. Id.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A94A0246.
    PAUL v. JOSEPH et al.
    (441 SE2d 762)
   Blackburn, Judge.

The appellant, Barbara Paul, filed the instant action for damages based upon fraud against William Cross and Sharon Davis, individually and as agents of the sellers of the property, Cross & Davis, Rogers Russell, Jr., the first mortgagee, Leon Joseph and James Daniels, individually, and as agents of Apollo Associates, Inc., a brokerage firm representing the sellers, and against C. Terry Blanton, the closing attorney, in his individual capacity and as an employee/agent of C. Terry Blanton Law Office, P.C., based upon fraud, breach of an implied contract, and legal malpractice, all claims arising from the alleged concealment of an arrearage on a first mortgage assumed by Paul in the purchase of real property. Following the commencement of discovery, Russell moved to dismiss the action, and the motion was denied by the trial court.

Blanton, in his individual capacity and as agent of the law office, subsequently moved to dismiss the action against him and the firm and, in the alternative, for judgment on the pleadings based upon the expiration of the applicable statute of limitation, and Paul’s failure to attach an expert affidavit. The motion was granted as to the breach of an implied contract and legal malpractice claims, and this ruling was not appealed. Blanton subsequently amended his motion to dismiss and motion for judgment on the pleadings based upon Paul’s failure to state a claim upon which relief can be granted by her admissions in her deposition. Russell, Joseph, and Apollo Associates, Inc., thereafter moved for summary judgment. In addition, Paul notified the court of Russell’s petition for reorganization under Chapter 13, asserting that the proceedings were subject to the automatic stay provisions in bankruptcy actions.

On June 2, 1993, the trial court, upon consideration of all pending motions, denied Apollo’s motion for summary judgment, but granted the motions for summary judgment in favor of Joseph and Blanton and his law office based upon Paul’s admission in her deposition that these defendants were unaware of the arrearage on the assumed loan. The trial court also found that the automatic stay of the bankruptcy proceeding did not apply to the solvent co-defendants. This appeal followed.

On April 23, 1984, Paul executed a written agreement for the purchase of the property in question. Pursuant to the terms of the agreement, Paul would purchase the realty for $37,000, consisting of a $10,000 cash down payment, $11,300 promissory note due and payable within one year of the closing, and an assumption of the existing mortgage in favor of Russell at a balance represented to be $15,700. The property was closed on April 25, 1984, and Blanton, based upon Daniel’s request, was the closing attorney. A warranty deed was subsequently executed. Paul made payments pursuant to the outstanding first mortgage through September 1990, at which time she discovered the arrearage on the loan while inquiring of the payoff balance. Consequently, this action ensued.

1. Initially, Paul maintains that the trial court erred in failing to stay the proceedings in reference to appellees Blanton and Joseph based upon Russell’s filing of the petition for bankruptcy protection. However, this issue has been decided adversely to Paul in this court’s decision of GMAC v. Yates Motor Co., 159 Ga. App. 215 (2) (283 SE2d 74) (1981).

In GMAC, we declined to follow a Texas bankruptcy court decision, relied upon by the appellant therein, to apply the automatic stay provision to co-defendants where the allegations arose from the same factual basis and were not so “inextricably interwoven” to require such application. Id. at 217. As in the case sub judice, the co-defendants in GMAC were joint tortfeasors, and the plaintiff therein had the right to bring separate actions against them or sue them jointly in one action. Even if the plaintiff in GMAC sought to remove any tortfeasor from the action, the remaining tortfeasors would not be affected by such action. Contrary to Paul’s assertion, a judgment against the remaining tortfeasors in this action is not a judgment against Russell, the bankrupt debtor, as the liability of the defendants is joint and severable. Therefore, the authority that she mistakenly relies upon is inapplicable.

Accordingly, “[i]t follows that a stay as to one codefendant does not necessarily require a stay as to other codefendants where each defendant may be jointly and severally liable. A stay on behalf of the bankrupt codefendant merely suspends the proceedings as to him. The plain language of the Bankruptcy Code itself . . . indicates that proceedings against the debtor are stayed. We see no reason to extend the language to include codefendants of the debtor.” Id. at 218. Therefore, the trial court did not err in failing to stay the proceedings in reference to Blanton and Joseph.

2. Next, Paul argues that the trial court erred in granting summary judgment to Blanton and Joseph inasmuch as the sole support for this grant was evidence inadmissible in court. Specifically, Paul maintains that the trial court relied upon a statement allegedly made by Paul that Joseph or Blanton could not have known about the arrearage. Paul asserts that the statement does not appear in the record, the plaintiff has no personal knowledge on which to base such a statement, and there is no factual basis for the statement. We disagree.

The record, viewed in the light most favorable to Paul as the nonmovant, shows that Paul admitted that Joseph made no representations at the closing about the balance or the loan status. In her deposition, Paul further admitted that she did not meet Joseph until April 1991, after the date of closing on the property. Hence, the evidence in the record does not show that Joseph made any misrepresentation to Paul upon which she could have reasonably relied at the time of the closing. An action for fraud requires proof that a defendant knowingly made false representations which were relied upon by the plaintiff. Gary v. E. Frank Miller Constr. Co., 208 Ga. App. 73 (2) (430 SE2d 182) (1993). In addition, Paul further stated in her deposition testimony that her action against Blanton and his firm were based on things that she thought should have been done and were not done. Such an allegation is insufficient to raise an issue of fraud, and only raises an issue of professional negligence. See Edmonds v. Bates, 178 Ga. App. 69, 71 (342 SE2d 476) (1986). While Paul now asserts that she lacked personal knowledge on which to make the statements contained in her deposition, as we stated in Norair Engineering Corp. v. St. Joseph’s Hosp., 147 Ga. App. 595, 600-601 (249 SE2d 642) (1978), “‘[a] party testifying in his own behalf is not entitled to a finding in his favor if that version of his testimony which is most unfavorable to him shows that he is not entitled to recover. (Cits.)’ [Cit.]”

Decided February 4, 1994

Reconsideration denied February 17, 1994

Bernard & Associates, Patricia D. Bernard, for appellant.

Christopher D. Parker, Herman Pierre, Jr., Freeman & Hawkins, Thomas F. Wamsley, Jr., C. Terry Blanton, for appellees.

By relying on Paul’s deposition testimony, Joseph and Blanton have successfully pierced Paul’s allegation of fraud. Inasmuch as Joseph and Blanton have discharged their burden, Paul must “point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Paul has failed to point to any evidence to show that a triable issue of fact remains for jury resolution as to Joseph and Blanton’s knowing misrepresentation of the indebtedness on the property, including the arrearage. “ [Although the question of fraud is ordinarily within the province of the jury, in plain and undisputed cases it is proper that the determination be made by the court. We agree that the trial court did not err in granting [Blanton and Joseph’s] motion for summary judgment on the issue of fraud.” (Citations and punctuation omitted.) Brown v. Buffington, 203 Ga. App. 402, 403-404 (416 SE2d 883) (1992).

In affirming the trial court’s grant of summary judgment in favor of Blanton, we did not consider Blanton’s affidavit attached to his appeal brief. As we recently stated in Lawal v. Stanley Bostitch Co., '209 Ga. App. 439, 441 (433 SE2d 706) (1993), “[w]e cannot consider facts, related by briefs, which do not appear in the record sent up from the clerk of the lower court.” (Citations and punctuation omitted.) “ ‘Appellate courts will review only evidence presented to the trial court before its ruling on the motion. Additional evidence will not be admitted on appeal.’ [Cit.]” Id. at 440.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

       In its order, the trial court also granted Paul’s motion for default against defendants Cross, Davis, and the partnership of Cross & Davis.

       Although several defendants were involved in the action before the trial court, only Joseph and Blanton in his individual capacity and on behalf of his law office, are involved in this appeal.


text:
    A94A0377.
    BILLINGS v. THE STATE.
    (441 SE2d 262)
   Blackburn, Judge.

In a four-count indictment, the appellant, Robert James Billings, was charged with armed robbery, two counts of aggravated assault, and possession of a firearm by a convicted felon. A co-defendant, Derrick Ladell Slappey, was also charged with armed robbery and two counts of aggravated assault. Following a trial by jury, Billings was found guilty of all of the offenses. The trial court subsequently vacated the jury’s verdict on one charge of aggravated assault because the indictments drawn for armed robbery and the aggravated assault alleged precisely the same shooting. See Lowery v. State, 209 Ga. App. 5 (4) (432 SE2d 576) (1993). Billings’ motion for new trial was denied by the trial court, and this appeal followed.

The evidence produced at trial by the State showed that Robert Shannon (Shannon), Jessie Shannon, and their 16-month-old daughter stopped at a Hampton Inn in Tift County on the evening of February 6, 1992. As they entered their motel room at approximately 9:00 and attempted to close the door, Billings suddenly appeared in the doorway wielding a gun, and demanded Shannon’s wallet. Although Shannon told Billings to leave, Billings again demanded Shannon’s wallet and threatened to kill his wife if his demands were not met. Shannon tossed his wallet outside of the door onto the walkway of the motel. At Billings’ request, a 15-year-old accomplice picked up the wallet and informed Billings of its contents. The assailants fled after removing approximately $2,000 in cash from the wallet. Later that evening Billings was seen in a trailer park in the vicinity of the motel, and fled on foot as he was approached by a deputy sheriff. The Shannons positively identified Billings as their assailant on the day after the incident from photographs in mug books, and again identified him in court at trial. Over Billings’ objection, the pictures identified by the Shannons and the mug books were admitted in evidence.

In addition to the Shannons, the State presented the testimony of Slappey and the 15-year-old accomplice. Both men testified that Billings robbed the motel patron and shared the proceeds of the robbery with them. Raymond Drennon, an investigator with the City of Tifton Police Department, testified about the contents of a custodial statement voluntarily made by Billings during an interview on February 25, 1992, the morning after his arrest for a parole violation. The interview was initiated by Drennon and another investigator. In his inculpatory statement, Billings admitted that he and two accomplices appeared at Shannon’s motel door armed with a .22 revolver, and demanded Shannon’s wallet. After Shannon complied with his request, he and his accomplices fled on foot and later split the robbery proceeds. Evidence on Billings’ 1991 felony conviction for robbery by intimidation was also admitted after the jury returned a guilty verdict on the armed robbery and aggravated assault charges.

1. Billings maintains that the evidence produced at trial was insufficient to support his conviction for the offenses charged. On the contrary, the uncontroverted evidence produced at trial showed that Billings, a convicted felon, robbed Shannon of the contents of his wallet while armed with a gun, and threatened to kill his wife. While Billings challenges Shannon’s pre-trial identification of him as the perpetrator due to Shannon’s alleged uncertainty, any “uncertainty expressed by the victim regarding his [pre-trial] identification of [Billings] was merely a factor to be considered by the jury in determining the weight of this testimony.” Buckner v. State, 209 Ga. App. 107, 108 (1c) (433 SE2d 94) (1993). “Appellate courts consider only the sufficiency, and not the weight of the evidence. [Cit.]” Jacobs v. State, 207 Ga. App. 714, 716 (3) (429 SE2d 256) (1993). See also Cox v. State, 197 Ga. App. 240 (5) (398 SE2d 262) (1990). In light of the overwhelming evidence produced at trial, we must conclude that a rational trier of fact could determine Billings’ guilt beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hesterlee v. State, 210 Ga. App. 330 (1) (436 SE2d 32) (1993).

2. Billings further enumerates as error the trial court’s admission of his inculpatory statement. Prior to trial, a Jackson v. Denno hearing was conducted to determine the voluntariness of Billings’ custodial statement. At the hearing, Drennon testified that Billings signed a rights waiver form in his presence prior to questioning and after he verbally acknowledged that he understood those rights. The form delineated his Miranda rights, and those rights were read aloud to Billings twice before the statement was given. By signing the form, Billings acknowledged that no promises or threats were made to him and no pressure or coercion of any kind had been used against him. Drennon further testified that Billings appeared to understand all of these communications, and that no coercion, threats, or promises of any kind were utilized to obtain the waiver of rights and statement during the 52-minute interview. It was also established at the hearing that Billings was not under the influence of alcohol or drugs, that he understood English, could read and write, and had an eleventh grade education. The other officer present during the interview appeared at the hearing but did not testify. Billings did not testify and did not present any evidence to rebut the officer’s testimony. After the hearing, the trial court found as fact based on the testimony of the officer that Billings had been fully advised of his constitutional rights, that his statement was freely and voluntarily made without hope of benefit or reward, or as a product of duress, and that he was not acting under any mental or physical disabilities which prevented him from understanding his rights.

“In ruling that the in-custody statement given by the accused was admissible, the trial court must upon consideration of the totality of the circumstances, be satisfied by a preponderance of the evidence that the statement was freely and voluntarily given, and the court’s ruling, including findings as to factual matters and credibility, will not be disturbed on appeal unless clearly erroneous. [Cits.]” Connerly v. State, 207 Ga. App. 498, 499 (428 SE2d 408) (1993). See also Carroll v. State, 208 Ga. App. 316 (2) (430 SE2d 649) (1993). Although Billings maintains that the incriminating statement was given based upon Drennon’s promise to assist him in resolving a problem with his jail cell, the uncontroverted evidence produced at the hearing on his motion for new trial shows that Billings’ statement was given before the officer offered to facilitate the change of Billings’ jail cell in exchange for the specific name of the 15-year-old accomplice. Moreover, any promise made to Billings to facilitate a change in his jail cell “is not a promise or ‘hope of benefit’ which would taint [Billings’] otherwise voluntary confession. [Cit.]” Sizemore v. State, 201 Ga. App. 431, 432 (1) (411 SE2d 505) (1991). Our Supreme Court has “ ‘construed the “slightest hope of benefit” [contained in OCGA § 24-3-50] as meaning the hope of a lighter sentence. [Cit.]’ ” Id. Consequently, we find that the trial court did not err in admitting this statement and in denying Billings’ motion for new trial on this basis.

3. We reject Billings’ assertion that the trial court erred in refusing to allow him to cross-examine an officer who was present when Billings made his incriminating statement but did not testify at the Jackson v. Denno hearing. “The right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against him.” (Emphasis supplied.) OCGA § 24-9-64. This witness was not called to testify and did not present any direct testimony against Billings. Cf. Davis v. State, 261 Ga. 382 (2) (405 SE2d 648) (1991).

4. In two separate enumerations of error, Billings asserts that the trial court erred in failing to grant his alternative motion to dismiss or disqualify the district attorney’s office from the prosecution of this case based upon a conflict of interest and an appearance of impropriety. Beth McFadyen, an assistant district attorney at the time of trial, represented Slappey while employed with the public defender’s office and negotiated his guilty plea in December 1992. Billings was also represented by the public defender’s office prior to the assignment of outside counsel based upon a conflict of interest.

A conflict of interest warranting the disqualification of a prosecuting attorney “has been held to arise where the prosecutor previously has represented the defendant with respect to the offense charged, or has consulted with the defendant in a professional capacity with regard thereto. . . .” Williams v. State, 258 Ga. 305, 314 (369 SE2d 232) (1988). “It would clearly be improper for an attorney to change roles from the prosecution to the defense (and vice versa) in the same case.” Frazier v. State, 257 Ga. 690, 693 (9) (362 SE2d 351) (1987). While we agree with Billings that an appearance of impropriety exists, other members of the office of the prosecuting attorney were not disqualified from the prosecution of this action. Although Directory Rule 5-105 (D) of the Georgia Code of Professional Responsibility provides that no partner or associate of the firm where an attorney is disqualified from the representation of a client may accept or continue employment with the client based upon a conflict of interest, this “imputed disqualification rule was not meant to encompass governmental law offices. . . . The salaried government employee does not have the financial interest in the success of departmental representation that is inherent in private practice.” (Citations and punctuation omitted.) Frazier v. State, supra at 694. Vicarious disqualification of a government department is not necessary or wise, and the individual lawyer should be screened from any direct or indirect participation in the matter, and discussion with colleagues concerning the case should be prohibited. Id. In the case at bar, McFadyen testified unequivocally that she did not participate directly or indirectly in the prosecution of this case since joining the office of the district attorney and did not consult with any person in the district attorney’s office on this case. Accordingly, the trial court did not err in denying Billings’ motion to disqualify. See Pullen v. State, 208 Ga. App. 581 (3) (431 SE2d 696) (1993).

5. Next, Billings maintains that the trial court erred in allowing the State to impeach its own witness by the use of prior inconsistent statements based upon the prosecutor’s statement in his place that he was surprised by the response of the witness. However, “[a] party may impeach its own witness with a prior inconsistent statement without any showing of entrapment or surprise, [cits.].” Rollins v. State, 262 Ga. 698, 699 (1) (425 SE2d 285) (1993). See also Davis v. State, 249 Ga. 309 (3) (290 SE2d 273) (1993). While Billings further complains that the trial court allowed the prosecutor to ask leading questions of this witness on direct examination after the witness was impeached, “the trial court has the discretion to allow leading questions on direct examination. ... It would be a rare case in which the trial court’s exercise of discretion on this issue would warrant reversal.” Fugate v. State, 263 Ga. 260, 265 (431 SE2d 104) (1993). Under the circumstances, we find no abuse of discretion.

6. Billings further contends that the trial court erred in admitting a photograph of the Shannon’s daughter taken a few months prior to the incident in question because the photograph lacked probative value and inflamed the jury. Assuming arguendo that the photograph was erroneously admitted, it is highly probable that any error in the admission of this evidence did not contribute to the judgment. Watkins v. State, 207 Ga. App. 766 (4) (430 SE2d 105) (1993). Moreover, Billings has not shown that this photograph was inflammatory.

Decided February 4, 1994

Reconsideration denied February 17, 1994

Morris & Webster, J. David Tucker, for appellant.

C. Paul Bowden, District Attorney, Gary C. McCorvey, Assistant District Attorney, for appellee.

7. Next, Billings maintains that the identification mug shots and mug books were unduly prejudicial, improperly placed his character in issue, and were improperly admitted over his objection. We disagree. The mug shots and mug books were introduced by the State for identification purposes and did not suggest that Billings had been the subject of prior arrests or convictions for other offenses. “It is well settled that the mere admission into evidence of a picture of defendant with an identifying number does not indicate that the defendant was guilty of any previous crime and does not place his character in issue.” (Citations and punctuation omitted.) Dorsey v. State, 183 Ga. App. 409 (1) (359 SE2d 195) (1987). Consequently, a mistrial was not warranted, and the trial court did not err in denying the motion.

8. Lastly, Billings asserts that the trial court erred in failing to require the district attorney to disclose under the authority of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), pending charges against him for a subsequently committed offense. On the contrary, the disclosure of this information is not mandated under Brady. “There is no general constitutional right to discovery in a criminal case, and Brady did not create one. Due process does not require that as a matter of constitutional law everything must be disclosed. . . . However, suppression by the prosecution of evidence favorable to the accused which is material to either guilt or punishment violates due process.” (Citations and punctuation omitted.) (Emphasis supplied.) Belins v. State, 210 Ga. App. 259, 260 (435 SE2d 675) (1993). This evidence of which Billings complains was not favorable to his defense of the offenses charged. Accordingly, the trial court did not err in failing to compel the disclosure of this information.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

         In December 1992, prior to trial, Slappey pled guilty to a reduced charge of robbery by force for his participation in the incident.


author: McMurray, Presiding Judge.

text:
    A93A2308.
    PROFESSIONAL CARPET SYSTEMS, INC. v. SAEFKOW et al.
    (441 SE2d 98)
    Decided February 17, 1994.

      Patrick L. Pullen, for appellant.

      Parker & Terry, J. Steven Parker, for appellees.
   McMurray, Presiding Judge.

Plaintiff Professional Carpet Systems, Inc. brought suit against David J. Saefkow and Kim Saefkow, in the State Court of Clayton County. The complaint alleged that the Saefkows, Ohio residents, entered into a franchise agreement with plaintiff in Georgia and that, subsequently, the Saefkows conspired with others to tortiously interfere with that franchise agreement. The Saefkows answered the complaint and moved to dismiss for lack of jurisdiction over the person (OCGA § 9-11-12 (b) (2)) and for failure to state a claim upon which relief can be granted (OCGA § 9-11-12 (b) (6)). Following a hearing, the state court granted the Saefkows’ motion, finding that it would offend notions of fair play and substantial justice to exercise jurisdiction over the Saefkows. Plaintiff appeals. Held:

We need not decide whether the state court properly dismissed the complaint on jurisdictional grounds because it is beyond peradventure that the complaint failed to state a claim upon which relief can be granted. See Turner v. MCI Telecommunications Corp., 203 Ga. App. 71, 76 (416 SE2d 370) (judgment right for any reason will be affirmed). After all, the Saefkows cannot be said to have tortiously interfered with their own contract. “Tortious interference with contractual relations is applicable only when the interference is done by one who is a stranger to the contract. [Cits.]” Jet Air v. Nat. Union Fire Ins. Co., 189 Ga. App. 399, 403-404 (4) (375 SE2d 873). See also Nexus Sues. v. Manning Tronics, 201 Ga. App. 255 (1) (410 SE2d 810).

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A2391.
    SOUTHWIRE COMPANY v. HULL et al.
    (441 SE2d 293)
   McMurray, Presiding Judge.

Elmer Hull suffered an on-the-job injury while working for Southwire Company (“Southwire”) which resulted in quadriplegia. Southwire now provides Hull with benefits under Georgia’s Workers’ Compensation Act, including 24-hour-a-day professional nursing care. Southwire attempted to change Elmer Hull’s benefits from 24-hour nursing care to substantially less expensive non-professional attendant care via petition pursuant to OCGA § 34-9-201 (d). After entering findings of fact regarding Elmer Hull’s basic needs, an administrative law judge entered an award granting Southwire’s petition for a change to non-professional attendant care treatment and authorizing Southwire’s “original goal of providing in-home attendant care on behalf of Mr. Hull, with properly trained attendants and supervision by registered nurses as determined and approved by Dr. Donald Leslie, Mr. Elmer Hull’s authorized treating physician.” Elmer Hull appealed to the Full Board of the State Board of Workers’ Compensation and, upon de novo review, the Full Board denied Southwire’s petition for a change in Elmer Hull’s treatment and adopted all findings and conclusions of the administrative law judge, “except as inconsistent with [its finding] that it would not be in the employee’s best interest for the employer/self-insurer to make a change in nursing service at this time.” Elmer Hull then appealed to the superior court where it was “CONSIDERED, ORDERED and ADJUDGED that the Award of the Full Board of Workers’ Compensation be REVERSED to the extent it requires either the dispensing or administering of medication by unlicensed attendants.” This appeal followed this court’s order granting Southwire’s OCGA § 5-6-35 (a) (1), (b) application for appeal. Held:

“ ‘It has, we believe, ever been the law, both in this State and in other jurisdiction [s], that a party not aggrieved by the judgment of a trial court is without legal right to except thereto, since he has of it no just cause of complaint. . . “In legal acceptation, a party is aggrieved by a judgment or decree when it operates on his rights of property, or bears directly upon his interest.” 2 Cyc. 233, and citations.’ ” Walker v. Hartford Accident &c. Co., 196 Ga. 361, 364 (26 SE2d 695). In the case sub judice, the Full Board of the State Board of Workers’ Compensation neither granted Southwire’s petition for a change of benefits, nor authorized action which is adverse to Elmer Hull. Further, a thorough examination of the Full Board’s award reveals nothing to support the superior court’s conclusion that the Full Board’s award “requires either the dispensing or administering of medication by unlicensed attendants.” On the contrary, the Full Board’s denial of Southwire’s petition means that Southwire is required to continue providing Elmer Hull with 24-hour-a-day care from licensed health care professionals and that health care professionals are now dispensing or administering Elmer Hull’s medication. Accordingly, Hull is not aggrieved by the Full Board’s award and therefore has no standing to appeal to the superior court from the Full Board’s award. Consequently, the superior court’s order purporting to reverse the Full Board’s award is a nonbinding advisory opinion and must be reversed. See Hight v. Blankenship, 199 Ga. App. 744, 745 (406 SE2d 241).

Decided February 17, 1994.

Kenneth A. Smith, for appellant.

Donald L. Jones, Harrison, Harrison & Llop, Rita J. Hop, for appellees.

Judgment reversed.

Johnson and Blackburn, JJ., concur.