author: Birdsong, Presiding Judge.

text:
    A97A2389.
    BRYANT v. THE STATE.
    (494 SE2d 353)
   Birdsong, Presiding Judge.

Appellant pled guilty to and was convicted of the offense of aggravated sexual battery. He appeals that conviction and enumerates two errors. Held:

1. Appellant contends that his resentencing violates the principles of double jeopardy. We disagree.

Appellant pled guilty to the offenses of aggravated sexual battery, child molestation, and false imprisonment. OCGA § 16-6-22.2 (c) provides that a person convicted of aggravated sexual battery “shall be punished by imprisonment for not less than ten nor more than 20 years. Any person convicted under this Code section shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.” OCGA § 17-10-6.1 (a) (7) prescribes that aggravated sexual battery, as defined in OCGA § 16-6-22.2, constitutes a “serious violent felony,” within the meaning of OCGA § 17-10-6.1. OCGA § 17-10-6.1 (b) pertinently provides that: “[A]ny person convicted of a serious violent felony . . . shall be sentenced to a mandatory minimum term of imprisonment of ten years and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and shall not be reduced by any form of pardon, parole, or commutation of sentence.”

The trial court sentenced appellant to serve twenty years as to the aggravated sexual battery charge with the first five years in confinement and the balance on probation. Subsequently, the Senior Assistant Attorney General, Department of Law, sent a letter to the district attorney of the local judicial circuit informing him that his office had advised the Department of Corrections not to accept the appellant, because appellant’s sentence on the aggravated sexual battery count violated the mandatory minimum sentence requirements of OCGA § 17-10-6.1. Thereafter, the trial court vacated its earlier sentence and resentenced appellant to serve 20 years in confinement. Generally, “[p]unishment may be increased on resentence ... if the court determines, in proper exercise of its discretion, that such increase serves a valid purpose.” Short v. United States, 344 F2d 550, 552 (D.C. Cir.). Examination of the resentencing hearing establishes that the trial court did not resentence appellant due to any vindictive reason, rather he resentenced appellant for the purpose of attempting to conform the adjudged sentence to the mandates of the statutory law of this state. See generally Gauntlett v. Kelley, 849 F2d 213 (6th Cir.). Further, we find that an accused who has been convicted of a crime has neither a vested right to nor a reasonable expectation of finality as to a pronounced sentence which is null and void because of its failure to comply with the mandatory minimum sentence requirements of the criminal statutes of this state.

Appellant does not enumerate as error and we do not here address whether the trial court was correct in concluding that it must sentence appellant to twenty years to serve; that is, for example, whether the trial court could have sentenced appellant to twenty years with ten years to serve and ten years on probation.

OCGA § 17-10-6.1 (b) mandates that a person convicted of certain serious violent felonies, including aggravated sexual battery, “shall be sentenced to a mandatory minimum term of imprisonment of ten years and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court. . . .” On its face, this statute requires that an offender be confined for a serious violent felony for a term of ten years and the imposed sentence cannot be probated so as to enable the accused to be confined for a lesser period of time. Thus, probation of 15 years of appellant’s original 20 year sentence violated the provisions of OCGA § 17-10-6.1 (b) and therefore constituted a null and void sentence. In Georgia, a defendant, after a plea or verdict of guilty, may, when a void sentence has been imposed, be returned before the proper court so that a legal sentence may be imposed upon him in accordance with the existing law. Heard v. Gill, 204 Ga. 261 (49 SE2d 656); compare Hartman v. State, 266 Ga. 613, 615 (5) (469 SE2d 163); see also Hubbard v. State, 225 Ga. App. 154 (483 SE2d 115). “Where a sentence is void . . . the court may resentence the defendant at any time.” Thomas v. State, 226 Ga. App. 409 (486 SE2d 673). “ ‘The imposition of a void sentence is not an obstacle to the assumption by the court which imposed it of jurisdiction of the convict, in order that a legal sentence may be imposed. . . . The case is to be regarded as pending until it is finally disposed of by the imposition of a lawful sentence.’ ” (Emphasis supplied.) DeBenque v. United States, 85 F2d 202, 205 (1) (D.C. Cir.). As the original sentence imposed upon appellant was void and as his case was still pending until a lawful sentence could be imposed upon him, appellant’s claim of double jeopardy fails. Compare id.; King v. United States, 98 F2d 291, 295 (D.C. Cir.). Appellant’s first enumeration of error is without merit.

2. Appellant contends that his resentencing is in violation of the principle of separation of powers of the Constitution of the United States and the Constitution of the State of Georgia.

That portion of the above enumeration pertaining to a violation of the Constitution of the United States is not supported in appellant’s brief by citation of authority or argument and therefore is deemed abandoned. Court of Appeals Rule 27 (c) (2).

Additionally, at the hearing on resentencing, appellant, against the advice and participation of counsel, requested the trial court to sentence him immediately and elected not to withdraw his guilty plea. Appellant’s attorney requested “a sufficient amount of time after sentencing ... to be able to perfect the record with regard to any objections [he] may have in . . . the Double Jeopardy area and the Constitutional Separation of Powers violation that [he may] feel mandatory/minimum sentencing imposes on the Court.” Appellant did not make any specific constitutional objection based on either the United States Constitution or the Constitution of the State of Georgia, and the trial court did not affirmatively rule on the record as to any such specific constitutional objection. Accordingly, neither federal nor state constitutional objections have been preserved for appeal. See Meders v. State, 260 Ga. 49, 54 (2) (b) (389 SE2d 320); Whatley v. State, 196 Ga. App. 73, 75 (1) (395 SE2d 582). Appellant’s second enumeration, as crafted, is without merit.

Decided November 24, 1997.

Walter E. Van Heiningen, for appellant.

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

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A97A1333.
    THOMPSON v. CHAPEL et al.
    (494 SE2d 216)
   Judge Harold R. Banke.

Michael Thompson, as the surviving heir of his mother, Imogene Thompson, sued Michael Chapel and Chapel’s former employer, Gwinnett County. Thompson appeals the trial court’s order granting summary judgment to Gwinnett County, enumerating three errors.

To prevail on summary judgment, defendants who will not bear the burden of proof at trial may point out by reference to the record that there is no evidence, viewed in the light most favorable to the non-movant, sufficient to create a genuine jury issue on at least one essential element of plaintiff’s case. Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 827 (2) (482 SE2d 720) (1997). Viewed in that light, the evidence shows that this case arose after Chapel, at the time a Gwin-nett County police officer, responded to Imogene Thompson’s report that her home had been burglarized. After learning that over $7,000 had been stolen, Chapel arranged a meeting with Mrs. Thompson. He asked her to bring the $7,000 in her possession which was not stolen so he could compare the serial numbers to the currency he had recovered. After meeting Mrs. Thompson, Chapel shot her twice in the head and took her money. He was subsequently convicted of her murder.

Michael Thompson then commenced this action under 42 USC § 1983 and state law, alleging that Gwinnett County failed to adequately supervise, monitor, and control Chapel’s actions. The trial court granted the County’s motion for summary judgment, finding that Thompson failed to present any evidence that a County custom or policy was the moving force behind the purported constitutional violation and sovereign immunity barred the state law claims. Held:

1. The trial court properly rejected Thompson’s § 1983 claims. Federal law provides a cause of action which supersedes state sovereign immunity law to those deprived of their constitutional rights by persons acting under color of state law. 42 USC § 1983; see Davis v. City of Roswell, 250 Ga. 8, 9 (1) (295 SE2d 317) (1982). Local governing bodies who employ such persons who deprive others of their constitutional rights also face liability where “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” Monell v. Dept. of Social Svcs., 436 U. S. 658, 690 (98 SC 2018, 56 LE2d 611) (1978). However, § 1983 does not impose respondeat superior liability on such employers. Watson v. Mayor &c. of Savannah, 223 Ga. App. 399, 401 (1) (477 SE2d 667) (1996). Nor does § 1983 reach negligent or unintentional customs or policies. Id. at 402; City of Cave Spring v. Mason, 252 Ga. 3, 4 (310 SE2d 892) (1984). To be actionable, a county employer’s custom or policy must exhibit a “deliberate indifference” to the rights of inhabitants. City of Canton v. Harris, 489 U. S. 378, 389 (109 SC 1197, 103 LE2d 412) (1989) (failure to adequately train). Moreover, the custom or policy must “cause” the constitutional violation. Id. at 389, n. 9.

Here, Thompson alleged four instances where the County’s purported custom of ignoring its standards for hiring and officer conduct enabled Chapel to remain on the job and ultimately to kill Mrs. Thompson in 1993. These instances include (1) a 1984 pre-employment psychological test in which Chapel scored 9.1 out of 14 for “anti-social tendencies”; (2) a 1991 garnishment of Chapel’s wages for failure to pay child support; (3) an unproved allegation in 1992 that Chapel conspired to rob a restaurant; and (4) unproved allegations in 1994 (after the murder) that Chapel failed to place weapons he seized into evidence.

We fail to see how these disparate incidents “caused” the alleged constitutional deprivation, much less constituted a “policy.” Depew v. City of St. Marys, 787 F2d 1496, 1499 (11th Cir. 1986) (random acts or isolated incidents are generally insufficient to establish a custom or policy). Thompson’s contention that in retrospect Chapel’s psychological evaluation should have raised a red flag is not sufficiently col-orable to warrant jury consideration, particularly in light of the citations and commendations Chapel received for his job performance. OCGA § 18-4-7 prohibits the discharge of employees whose wages are garnished. The charge of conspiracy was unsupported by evidence, and the weapons allegation arose after the murder. None of these events provide a causal nexus sufficient to preclude summary judgment or show the requisite deliberate indifference to citizens’ rights. City of Oklahoma City v. Tuttle, 471 U. S. 808, 823 (105 SC 2427, 85 LE2d 791) (1985) (“At the very least there must be an affirmative link between the policy and the particular constitutional violation alleged.”).

Decided October 29, 1997

Reconsideration denied November 25, 1997

Hinton & Powell, Andrew J. Hinton, Jr., for appellant.

Carothers & Mitchell, Richard A. Carothers, Thomas M. Mitchell, Moore & Davidson, Johnny R. Moore, for appellees.

2. Thompson reframed his second enumeration to argue in effect that his due process claims under the state constitution were improperly resolved against him. However, he presented no authority supporting the theory that this matter warrants a substantively different analysis under the state constitution than under federal law. Court of Appeals Rule 27 (a) (3). Under either authority, Thompson’s failure to present some evidence that the County’s actions proximately caused the constitutional deprivation warranted summary judgment. Compare Duffield v. DeKalb County, 242 Ga. 432, 434-435 (2) (249 SE2d 235) (1978). Further, the unrelated events alleged do not rise to the level of customs or policies.

3. Thompson’s third enumeration argues that issues of fact remain to be tried as to the application of the theories of respondeat superior and negligent supervision. As noted, the theory of respon-deat superior does not apply to Thompson’s constitutional claims. Watson, 223 Ga. App. at 401 (1). Because the undisputed evidence clearly showed that Chapel abandoned the County’s interests when he killed Mrs. Thompson for money, that theory likewise does not apply to the state law claims. Lucas v. Hosp. Auth. of Dougherty County, 193 Ga. App. 595, 596 (1) (388 SE2d 871) (1989). Nor did Thompson establish that the theory of sovereign immunity, which extends to counties as subdivisions of the State, did not bar his negligent supervision claim or any other state law tort claims. Koehler v. City of Atlanta, 221 Ga. App. 534, 535 (472 SE2d 91) (1996) (party seeking to benefit from the waiver of sovereign immunity bears burden of proof); OCGA § 36-1-4; Kordares v. Gwinnett County, 220 Ga. App. 848, 849 (470 SE2d 479) (1996); see Canfield v. Cook County, 213 Ga. App. 625, 626 (445 SE2d 375) (1994). Accordingly, the trial court properly granted summary judgment.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


text:
    A97A1733.
    NICHOLSON et al. v. PIKE NURSERIES, INC.
    (494 SE2d 214)
   Judge Harold R. Banke.

Sylvia Nicholson and James A. Nicholson filed a rainy day slip and fall action against Pike Nurseries, Inc. (“Pike”). Enumerating three errors, they appeal the summary judgment awarded to Pike.

Reviewed in a light most favorable to the Nicholsons, the evidence was as follows. McGonagil v. Treadwell, 216 Ga. App. 850, 853 (1) (456 SE2d 260) (1995). On a rainy afternoon, while Sylvia Nicholson was shopping at a Pike’s nursery, she decided to go to the house plant section located in a connecting building. As Nicholson proceeded to the house plant section, she noticed that rain was dripping from the corrugated plastic roof onto the concrete ramp which she traversed. When she initially walked up the ramp, she observed a puddle to one side. Nicholson admitted that she was aware of the presence of a drainage grate positioned at the bottom of the ramp to drain water because the area periodically got wet. After Nicholson completed her shopping in that section and began to proceed down the same ramp, she knew that the rain outside had become a downpour and could see that more water was dripping onto the ramp. As she recrossed the same ramp, she purportedly slipped and fell. Nicholson claimed that when she fell she was exercising reasonable care and made no assertion that she was distracted.

It is undisputed that Pike knew that its corrugated plastic roof sometimes leaked during heavy rains. However, Pike’s manager, Elliot Stockard, testified that in his six years’ of experience no falls had occurred on the ramp despite the fact that the roof had remained substantially unchanged. Stockard testified that the surface of the ramp was rough concrete and not slippery. The trial court determined that the Nicholsons’ recovery was barred by Sylvia Nicholson’s equal knowledge of the condition of the ramp. The Nicholsons appeal. Held:

1. The Nicholsons claim that the trial court erred in failing to consider certain key facts, misapplying the same, and adding a fact not in the record. They contend that Pike had superior knowledge of the hazard which they describe as the “infamous cement ramp.” They claim that Pike breached its duty to warn of an unsafe condition. We disagree.

By statute, a proprietor has a duty to exercise ordinary care in keeping its premises and approaches in a reasonably safe condition. OCGA § 51-3-1. However, a property owner is not an insurer of the safety of its invitees. Pound v. Augusta Nat., 158 Ga. App. 166 (279 SE2d 342) (1981). The mere showing of the occurrence of an injury does not create a presumption of negligence. Rather, the true ground of liability is the owner’s or occupier’s superior knowledge of the hazard and the danger therefrom. Cook v. Home Depot, 214 Ga. App. 133, 134 (1) (447 SE2d 35) (1994).

Decided October 29, 1997

Reconsideration denied November 25, 1997

Lefco & Blumenthal, Stanley M. Lefco, for appellants.

Dermer & Black, Stephen F. Dermer, for appellee.

In this case, in order to recover, Nicholson would have to show that Pike had actual or constructive knowledge of the hazard and that she lacked knowledge of that hazard or was prevented by Pike from discovering it. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980); Hudson v. Quise, Inc., 205 Ga. App. 840 (424 SE2d 37) (1992). Nicholson made no claim that Pike distracted her or that anything obstructed her view. By her own admission, Nicholson saw the rainwater dripping onto the ramp. Because her knowledge of the wet floor was at least equal to that of Pike’s, her recovery was foreclosed. Bruno’s, Inc. v. Pendley, 215 Ga. App. 108, 109 (449 SE2d 637) (1994).

Further, when a person has successfully negotiated an allegedly dangerous condition on a prior occasion, that person is presumed to have knowledge of that condition and cannot recover for a subsequent injury resulting therefrom. Souder v. American Family Restaurants, 210 Ga. App. 291, 292 (1) (435 SE2d 764) (1993); Rossano v. American Legion Post No. 29, 189 Ga. App. 610, 612 (3) (376 SE2d 698) (1988). Inasmuch as Nicholson had successfully traversed the allegedly hazardous ramp just minutes before and knew that rainwater was dripping onto the ramp, the trial court did not err in granting summary judgment to Pike. Souder, 210 Ga. App. at 292 (1).

2. In light of our determination in Division 1, we need not reach the Nicholsons’ remaining enumerations of error.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.

       James A. Nicholson sued for loss of consortium.


text:
    A97A2179.
    WILSON v. THE STATE.
    (494 SE2d 238)
   Judge Harold R. Banke.

Dwight Wayne Wilson was convicted of child molestation, aggravated sexual battery and two counts of aggravated child molestation. He enumerates four errors on appeal.

This case arose after the victim, a seven-year-old female, told a school friend that her “Papa,” her grandmother’s husband, had “sex abused” her. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). This occurred during several days while the victim, who lived with her grandmother, was home from school with lice. After treating her for lice, Wilson placed his finger in her “private places.” Wilson also placed his tongue in her mouth, licked her vagina, and touched her vagina and rectum with his penis.

The victim told a school friend about the abuse during a telephone call. During this conversation, the friend’s brother was listening on an extension and he described it to his mother. After talking with the victim, the friend’s mother called the victim’s grandmother at work and told her what had happened. The grandmother called her husband and then immediately returned home to find Wilson raking leaves and the victim crying hysterically under her bed. After calming the victim for 20 minutes, the grandmother convinced her to come out and they went for a ride and talked. The victim stated that Wilson had threatened to beat her if she ever told what happened. When the grandmother returned and confronted Wilson, he denied harming the child, but threatened to kill the child, the grandmother, and the friend’s mother if the accusations became known. The victim and her grandmother moved out that night. The grandmother told the victim not to talk about the incidents and did not report Wilson to the police because she was afraid.

A week later, during a “good touch bad touch” lesson at school, the victim blurted out, “that’s what my papa did to me.” The teacher met privately with the victim and then informed the authorities, who subsequently arrested Wilson. Held,'.

1. The trial court did not err in denying Wilson’s motion in limine to exclude the testimony of Rachelle Strausner, an assistant district attorney with special child abuse training who participated in the investigation. Wilson’s sole ground for so moving was that Strausner’s testimony contravened Directory Rule 5-102 of the Canons of Ethics, Rules and Regulations of the Organization and Government of the State Bar of Georgia, which prohibits attorneys from testifying for their clients except as to purely formal matters. Rule 5-102 does not apply because the victim was not Strausner’s client and Strausner did not try the case. See Ambles v. State, 259 Ga. 406, 409 (2) (b) (383 SE2d 555) (1989) (The only parties to a criminal prosecution are the state, as represented by the prosecutor, and the defendant.).

Decided November 5, 1997

Reconsideration denied November 25, 1997.

Edwin Marger, for appellant.

2. Strausner’s involvement in the case did not implicate the theory of imputed disqualification and bar another assistant district attorney from trying the case. Brown v. State, 261 Ga. 66, 72 (9) (401 SE2d 492) (1991); see Holiday v. State, 258 Ga. 393, 397 (9) (369 SE2d 241) (1988); Frazier v. State, 257 Ga. 690, 694 (9) (362 SE2d 351) (1987).

3. We reject Wilson’s claim that the trial court’s denial of his motion for mistrial warrants reversal. Before trial, the court granted Wilson’s motion in limine to exclude mention of alcohol use or abuse. Wilson subsequently sought a mistrial after the State’s psychologist unresponsively mentioned that the victim had told her Wilson french kissed her in his truck and alcohol was hidden beneath the seat. While this unsolicited testimony technically violates the ruling on the motion in limine, Wilson failed to satisfy his burden of showing harm, inasmuch as mere possession of alcohol is not a crime and is irrelevant to character. Jordan v. Johnson, 223 Ga. App. 875, 876 (479 SE2d 175) (1996); Mungin v. State, 183 Ga. App. 290, 291 (3) (358 SE2d 673) (1987).

4. The denial of Wilson’s motion for mistrial does not require reversal. After the State asked the witness whether it would be unusual for a seven-year-old who had been instructed to remain silent about an event to tell a peer rather than an adult, Wilson objected and then moved for a mistrial. The court sustained the objection and the witness never responded to the question. Because the witness never answered, Wilson cannot show harm from the alleged error in denying his motion for mistrial. Berry v. State, 210 Ga. App. 789, 791 (4) (437 SE2d 630) (1993) (unanswered questions provide no grounds for mistrial).

Judgment affirmed.

McMurray, P. J, and Smith, J., concur.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

       The record shows that Wilson voluntarily absented himself during trial and remained absent for the motion for new trial hearing. Because Wilson was a fugitive from justice, the trial court properly dismissed the motion for new trial. Gentry v. State, 91 Ga. 669, 671 (17 SE 956) (1893). Wilson’s counsel timely filed a notice of appeal of this final disposition. OCGA § 5-6-38 (a). In his appellate brief, Wilson’s counsel avers that Wilson is now in custody.

       Rule 5-102 states: ‘When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court on behalf of his client.” Castell v. Kemp, 254 Ga. 556, 557 (331 SE2d 528) (1985).


author: Smith, Judge.

text:
    A97A1564.
    ALDRIDGE v. THE STATE.
    (494 SE2d 368)
   Smith, Judge.

Roger D. Aldridge was convicted by a Fulton County jury on one count of child molestation, OCGA § 16-6-4 (a). His motion for new trial was denied, and he appeals. In his sole enumeration of error, Aldridge complains the trial court erroneously admitted testimony regarding his alleged attempts to commit suicide after being accused in a similar transaction. Because we find the evidence was properly submitted for the jury’s consideration, we affirm.

Aldridge was accused of molesting an eight-year-old girl by fondling her. The State offered as a similar transaction a later incident in which Aldridge was accused of fondling another eight-year-old girl. Several witnesses testified that, within hours of being accused in this similar transaction, Aldridge attempted suicide first by swallowing pills and then by twice attempting to hang himself with two different ropes.

Consideration of this evidence presents two separate questions. First we must determine whether evidence of attempted suicide is admissible as relevant to the defendant’s consciousness of guilt. This is an issue of first impression in Georgia. Then, if such evidence is admissible generally, we must determine whether it is admissible not only in connection with the offense for which the defendant is on trial, but also with regard to a similar transaction introduced by the State under Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). For the reasons stated below, we answer both questions in the affirmative.

1. Generally, any conduct of the accused that tends to show consciousness of guilt is admissible in Georgia. “Any statement or conduct of a person, indicating a consciousness of guilt, where such person is, at the time or thereafter, charged with or suspected of crime, is admissible against him upon his trial for committing it.” (Citations, punctuation and emphasis omitted.) Bridges v. State, 246 Ga. 323, 324 (2) (271 SE2d 471) (1980). “Any conduct of a person indicating a consciousness of guilt, such as flight or concealment, is admissible evidence for whatever value the jury decides to give. [Cit.]” Booth v. State, 184 Ga. App. 494, 496 (361 SE2d 868) (1987). While evidence of a suicide attempt by a defendant accused of child molestation appears to have been admitted in Young v. State, 194 Ga. App. 335 (1) (a) (390 SE2d 305) (1990), its admission was neither objected to nor ruled upon in that case, and we reach it here for the first time.

As a general rule, “[e]vidence that the accused attempted to commit suicide is relevant as a circumstance tending ... to show consciousness of guilt,” 1 Wharton’s Criminal Evidence, § 159 (14th ed. 1985), or as showing “an attempt to flee and escape forever from the temporal consequences of one’s misdeed[s].” 2 Wigmore on Evidence, p. 131, § 276 (Chadbourn rev. 1979). See also 22 ALR3d 840. When faced with the question, the courts of other states in almost every instance have allowed evidence of attempted suicide to go to the jury for whatever weight it chooses to place upon it. See, e.g., Commonwealth v. Sheriff, 680 NE2d 75, 83 (Mass. 1997) (instruction that attempted suicide evidence of consciousness of guilt not error); Harper v. State, 930 SW2d 625, 630 (Tex. App. 1996) (evidence of flight and attempted suicide properly admitted); State v. Mann, 625 A2d 1102 (N. J. 1993) (evidence of attempted suicide may be admissible but pretrial evidentiary hearing and proper jury instructions required); State v. Mitchell, 450 NW2d 828, 831-832 (Iowa 1990) (admission of evidence of suicide attempt after arrest not abuse of discretion); State v. Hunt, 287 SE2d 818, 823 (N.C. 1982) (flight and attempted suicide in jail “implied admissions of guilt”).

Those states which in recent decisions have refused to admit such evidence have done so on the basis of fact situations not applicable here. See, e.g., Meggison v. State, 540 S2d 258, 259 (Fla. App. 1989) (evidence of attempted suicide not probative of flight from pending prosecution because accused had pleaded guilty; guilty plea later withdrawn); Pettie v. State, 560 A2d 577 (Md. 1989) (evidence of suicide attempt improperly admitted because prosecution failed to prove actual suicide attempt made). In view of these decisions and the breadth of the existing Georgia law allowing “[a]ny statement or conduct of a person, indicating a consciousness of guilt,” Bridges, supra at 324 (2), we conclude that evidence of attempted suicide by the accused “where such person is, at the time or thereafter, charged with or suspected of crime,” (punctuation and emphasis omitted) id., is relevant as possibly indicating a consciousness of guilt and admissible for whatever weight the jury chooses to assign. “Whether the acts of the defendant constitute flight, and were due to a consciousness of guilt, or whether such acts have an innocent explanation, is a question for the jury. [Cits.]” Butler v. State, 172 Ga. App. 405, 407 (4) (323 SE2d 628) (1984).

2. We must next consider whether such evidence is relevant in the context of a similar transaction. In Williams, supra, the Supreme Court of Georgia required three elements in order to demonstrate the admissibility of a similar transaction under Uniform Superior Court Rule 31.3 (B): (1) the introduction of the independent offense for some appropriate purpose, (2) the presentation of sufficient evidence to establish that the accused committed the independent offense, and (3) sufficient connection or similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter. Williams, supra at 642 (2) (b). The State must “present the trier of fact with evidence establishing . . . that the accused committed an independent offense or act.” Id. at (2) (c).

In this instance, the State sought to prove Aldridge’s commission of the later incident through the victim’s testimony rather than a conviction or plea of guilty. See generally Harris v. State, 222 Ga. App. 52, 54 (473 SE2d 232) (1996) (State need not prove that similar transaction resulted in conviction or criminal charge). Under these circumstances, evidence regarding Aldridge’s consciousness of guilt became relevant to whether he was in fact the perpetrator of the independent offense, because evidence that an accused attempted suicide is admissible as showing consciousness of guilt.

Relying on Sessions v. State, 207 Ga. App. 609 (2) (428 SE2d 652) (1993), Aldridge contends evidence of the suicide attempt was inadmissible because it showed a separate and unrelated crime, to Aldridge’s prejudice as forbidden under Williams. Sessions was charged with entering an automobile, and the State introduced as similar transactions several other incidents in which Sessions was apprehended while breaking into vehicles. In the course of testifying to the similar transactions, one witness testified that Sessions reached for a pistol in a paper bag during a struggle at the crime scene, and a second witness testified that he found drugs in Sessions’s truck. Id. at 610. This Court held that such evidence of additional criminal acts was unrelated and irrelevant to the crime for which Sessions was being tried, was introduced for the sole purpose of attempting to show his bad character, and was sufficiently prejudicial to warrant reversal. Id.

Sessions is inapposite here. First, “‘suicide is not a crime in Georgia.’ ” Broomall v. State, 260 Ga. 220, 224 (4) (c) (391 SE2d 918) (1990). Compare OCGA § 16-5-5 (assisting another in the commission of suicide). Moreover, in contrast to the irrelevant crimes committed by Sessions, in Aldridge’s case a direct relationship exists between the offense being shown as a similar transaction and evidence that Aldridge attempted suicide after being accused of that offense. Because that evidence is relevant as indicating a consciousness of guilt, it is relevant to show identity in the similar transaction, an element which the State must prove. The trial court therefore did not err in admitting evidence of Aldridge’s suicide attempts after being accused of another, similar act of child molestation.

Decided November 25, 1997.

Calvin Lamar, Jr., for appellant.

Paul L. Howard, Jr., District Attorney, Jackie N. Stanton, Carl P. Greenberg, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

       Such evidence is still relevant and admissible, although it is no longer proper for the trial court to instruct the jury on flight. See Renner v. State, 260 Ga. 515, 517-518 (3) (b) (397 SE2d 683) (1990).


author: Johnson, Judge.

text:
    A97A1719.
    STROUD v. THE STATE.
    (494 SE2d 315)
   Johnson, Judge.

A jury found Michael Stroud guilty of burglarizing a self-service laundry and an adjoining tax preparation office. He appeals from the convictions entered on the verdict, claiming the trial court erred by admitting into evidence a surveillance videotape without an adequate foundation. We affirm.

Surveillance video cameras inside the laundry facility were operating on the night of the burglaries. When the owner arrived the following morning, he noticed that the laundry business had been broken into and the change machine damaged. The owner removed the videotape from one of the cameras and gave it to police. The owner of the adjoining business testified that her office had also been burglarized that night. She added that the wall between her office and the laundry facility had been damaged and that the hole in the sheetrock was large enough for a person to pass through. After viewing the videotape, police located Stroud and read him his Miranda rights. In a tape-recorded statement, the voluntariness of which is not at issue, Stroud admitted to police that he entered the businesses intending to remove property because he needed money to buy clothing for his children. He added that once he saw the cameras, he knew he had been caught.

Stroud objected to the introduction of the surveillance videotape into evidence, contending that because no one was present at the time the recording was being made, no witness would be able to testify that the videotape accurately depicted the events occurring at the time. See Wingfield v. State, 226 Ga. App. 448, 449 (2) (486 SE2d 676) (1997); see generally Allen v. State, 146 Ga. App. 815, 817 (2) (247 SE2d 540) (1978). Therefore, he argued, the videotape could be admitted only under the “silent witness” theory adopted by a majority of this Court in State v. Berky, 214 Ga. App. 174 (447 SE2d 147) (1994). Berky requires the proponent of the video evidence to: (1) show by expert testimony that the tape had not been altered or manipulated; (2) establish by testimony the date and place the video was taken; and (3) establish by testimony the identity of the participants depicted. After conducting a lengthy hearing, the trial court ruled that the three criteria had been satisfied. On appeal, Stroud argues that the state failed to satisfy the first and third criteria. At trial, however, Stroud expressly waived any argument regarding the third requirement.

Decided November 25, 1997.

Lloyd J. Matthews, for appellant. Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee.

The Berky decision was vacated by the Supreme Court in Berky v. State, 266 Ga. 28 (463 SE2d 891) (1995), two months before the instant case was tried. The Supreme Court vacated this Court’s decision based upon its finding that the state was not authorized to bring the appeal in the case and did not reach the silent witness issue. Shortly after our decision in Berky was vacated, the legislature enacted OCGA § 24-4-48, which relaxed the requirements for the admission of videotapes into evidence. That statute, however, did not become effective until more than one year after this case was tried.

Even if we assume, as Stroud argues, that the Berky criteria apply in this case and further assume that one or more of the requirements were not satisfied, reversal would not be required because the admission of the videotape in this case was harmless.

The testimony shows that Stroud admitted having entered the locked businesses because he needed money. He also admitted that he knew he had been caught when he saw the videocameras. Given this evidence, admission of the videotape was harmless. See Daniels v. State, 222 Ga. App. 29, 33 (5) (473 SE2d 239) (1996). Moreover, no objection was made to admission of still photographs generated from the videotape. It appears, therefore, that the videotape was cumulative of other evidence adduced at trial. See generally Kelly v. State, 197 Ga. App. 811, 814 (3) (399 SE2d 568) (1990). Interestingly, Stroud concedes in his brief that the image on the videotape is not clear and that it is “next to impossible” to discern whether he is the person shown on the tape. “ ‘Where no harm is shown, there is no reversible error. (Cits.)’ ” Moreland v. State, 213 Ga. App. 75, 77 (2) (443 SE2d 701) (1994).

Judgment affirmed.

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


text:
    A97A1887.
    ROBERTS v. DUCO DEVELOPMENT, INC.
    (494 SE2d 313)
   Judge Harold R. Banke.

Brian S. Roberts sued Duco Development, Inc. d/b/a Subway of Brunswick (“Subway”) under the theory of respondeat superior for false arrest, malicious prosecution, and negligence after a Subway manager filed theft charges against him. Roberts appeals the summary judgment awarded to Subway.

The evidence, when viewed in a light most favorable to Roberts, showed that Roberts and his manager at Subway, Larry Willis, had an acrimonious personal relationship. Roberts testified that their relationship deteriorated some time after he rejected Willis’ romantic overtures and Willis insulted his girl friend. When Willis terminated Roberts’ employment at Subway, he informed Roberts that he had taken out criminal warrants against him for terroristic threats.

It is undisputed that Willis lodged criminal theft charges against Roberts which lacked any foundation. Willis’ affidavits led to the issuance of two criminal arrest warrants for theft by taking. In one warrant, Willis swore that Roberts unlawfully and without authority took $155 from Subway, and in the other, Willis swore that Roberts took $250. One theft allegedly occurred six months prior to the date of the affidavit. Subway’s records indicate that no money was missing on the days on which Willis swore by affidavit that Roberts had absconded with the money. The criminal charges were dismissed about 18 months later.

Under the Subway terms of employment, a store manager lacks the authority to swear out an affidavit for an individual’s arrest unless specifically directed to do so by the store owner. Russ Collett, the Subway store owner, testified that he did not authorize or direct Willis to take out the affidavits. In fact, Collett testified that he did not know about any of the underlying events until Roberts filed the instant lawsuit. Collett further attested that it was contrary to Subway policy to swear out a warrant for a theft of this nature for less than $500.

In moving for summary judgment, Subway contended that it could not be vicariously liable because Willis’ actions were undertaken outside of the scope of his employment and done for purely personal reasons. Roberts appeals the summary judgment awarded to Subway. Held:

In his sole enumeration of error, Roberts contends that the existence of material disputed facts precluded summary judgment. We disagree. In determining whether an employer is liable for an employee’s tortious conduct, the test is whether the tort was done within the range of employment and for the purpose of accomplishing business authorized by the employer. Doe v. Village of St. Joseph, 202 Ga. App. 614, 616 (1) (415 SE2d 56) (1992); Wittig v. Spa Lady &c., 182 Ga. App. 689, 690 (356 SE2d 665) (1987). Where the tort of an employee is wholly personal to himself, it is not within the scope of his employment and the master is not liable. Effort Enterprises v. Crosta, 194 Ga. App. 666, 668-669 (2) (391 SE2d 477) (1990); Wittig, 182 Ga. App. at 690. Inasmuch as no money was missing on the two days on which Willis averred that the thefts occurred, and Collett testified that he did not authorize Willis’ actions, no evidence supports Roberts’ assertion that Willis’ actions were motivated by any purpose beneficial to Subway. Worstell Parking v. AISIDA, 212 Ga. App. 605, 606 (1) (442 SE2d 469) (1994); Mountain v. Southern Bell Tel. &c. Co., 205 Ga. App. 119 (1) (421 SE2d 284) (1992) (where tort is not committed by reason of employment but because of matters disconnected therewith, the master is not liable). Subway’s uncontro-verted evidence shows that Willis’ actions were unauthorized and contrary to Subway’s standard practice. A master cannot be deemed vicariously liable for a purely personal act unrelated to employment. Coley v. Evans Mem. Hosp., 192 Ga. App. 423, 424 (385 SE2d 100) (1989); see OCGA § 51-2-2. Because the actions of Willis were plainly outside the scope of his employment, were contrary to the delineated duties of a store manager, and were not done in furtherance of Subway’s business, the trial court properly granted summary judgment to Subway.

Decided November 25, 1997

John T. McKnight, for appellant.

Whelchel, Brown, Readdick & Bumgartner, J. Thomas Whelchel, Bradley J. Watkins, for appellee.

Judgment affirmed.

Beasley and Smith, JJ, concur.


author: Eldridge, Judge.

text:
    A97A2111.
    SIMMONS v. COWETA COUNTY et al.
    (494 SE2d 362)
   Eldridge, Judge.

On June 13, 1995, Ray N. Simmons, plaintiff-appellant, was an inmate incarcerated at the Coweta County Correctional Institute as a State prisoner assigned to the work camp, which was operated by Coweta County and the Coweta County Board of Commissioners. Bill P. McKenzie was the warden; Nancy Pye was the deputy warden; and Officer Holcomb was a correctional officer.

Plaintiff was assigned the operation of a tractor with a bush hog in a highway right-of-way but not on the paved roadway. Other prisoners had been assigned to pick up rocks, glass, and debris from the cutting path of the bush hog. A bush hog is a cutting attachment to the tractor and used in the operation of the tractor, which derives its power to turn the cutting blade directly from the tractor. While plaintiff was working his assignment, the bush hog blade struck a coil of barbed wire, and a piece of this hard foreign object was propelled into the plaintiffs neck; the other prisoners and Officer Holcomb failed to find and remove the coil of wire from the grass. After the injury, a coil of barbed wire was found under the bush hog. Officer Holcomb had supervised the work detail, which included making sure that the prisoners carried out their assigned tasks correctly.

Plaintiff was examined and treated at Peachtree Regional Hospital and returned to the defendants’ custody. On June 16, 1995, plaintiff was transferred to Clyde N. Phillips Hospital, where on June 21, 1995, he underwent a CAT scan that revealed a wire lodged between his ear and the top of his brain. Plaintiff underwent emergency brain surgery at Augusta Regional Medical Center on the same day to remove the wire.

Plaintiff sued Coweta County among others, as a result of his permanent injuries. The defendants answered and asserted the defenses of sovereign immunity and official immunity. On November 1, 1996, defendants filed a motion for summary judgment. On February 12, 1997, the trial court granted the motion as to all defendants. Plaintiff filed a timely notice of appeal.

For various reasons, plaintiff alleges that the trial court erred as á matter of law in granting summary judgment. We agree in part.

(a) Under the 1991 amendment to Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution, sovereign immunity has been extended to all of the political subdivisions of the State and specifically to counties. Gilbert v. Richardson, 264 Ga. 744, 747 (452 SE2d 476) (1994); see also OCGA § 50-21-22 (5); Woodard v. Laurens County, 265 Ga. 404 (456 SE2d 581) (1995); Donaldson v. Dept. of Transp., 262 Ga. 49, 53 (414 SE2d 638) (1992); Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 294 (454 SE2d 149) (1995).

Pursuant to OCGA § 33-24-51 (a), a county has authority to “secure and provide insurance to cover liability for damages on account of bodily injury or death resulting from bodily injury . . . arising by reason of ownership, maintenance, operation, or use of any motor vehicle by the . . . county.” Subsection (b) of this statute provides that, if the county “provide[s] liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties, its governmental immunity shall be waived to the extent of the amount of insurance so purchased.” As such, OCGA § 33-24-51 (a) gives counties the right to purchase insurance; OCGA § 33-24-51 (b) describes when the insurance operates as a waiver of sovereign immunity.

Subsection (a) is a very broad grant of power which allows a county to purchase insurance for liability to any person for personal or property damage that arises out of the use, ownership, or maintenance of a vehicle, whether or not the vehicle is being used in a governmental capacity. However, subsection (b) creates a more limited circumstance where sovereign immunity is waived by the insurance. Sovereign immunity is waived under subsection (b) only to the extent that a county purchases “insurance authorized by subsection (a) of this Code section to provide liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties.” OCGA § 33-24-51 (b). Even though a county may purchase insurance on county vehicles being used in a governmental undertaking, subsection (b) does not waive sovereign immunity unless the injury or damages were caused by the negligence of a “duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties.” OCGA § 33-24-51 (b). The procurement of insurance under this statute does not constitute a waiver of sovereign immunity with regard to personal injury caused by the county’s negligence, unless the negligence of its “officer, agent, servant, attorney, or employee” arises from the use of a motor vehicle. Gilbert v. Richardson, supra; accord Woodard v. Lau-rens County, supra; Blumsack v. Bartow County, 223 Ga. App. 392 (477 SE2d 642) (1996); see also Crider v. Zurich Ins. Co., 222 Ga. App. 177 (474 SE2d 89) (1996). For purposes of waiver of sovereign immunity under OCGA § 33-24-51 (b), a tractor is a motor vehicle. Crider v. Zurich Ins. Co., supra at 179-180; see also Pate v. Turner County, 162 Ga. App. 463 (291 SE2d 400) (1982); Travelers Indent. Co. v. Whalley Constr. Co., 160 Ga. App. 438 (287 SE2d 226) (1981).

Because an inmate is serving time and is compelled to work for a correctional institute, such “does not prevent [the inmate] from being a servant of a county where he is engaged in work for the county under the supervision and direction of the duly authorized agents and employees of the county” within the meaning of OCGA § 33-24-51 (b). Hall County v. Loggins, 110 Ga. App. 432, 433 (2) (138 SE2d 699) (1964). However, such inmate is not an employee of the county. Id.

In using and operating the insured tractor, plaintiff, an involuntary servant, within the meaning of OCGA § 33-24-51 (b), acted under the direction, supervision, and control of Officer Holcomb, who was an employee within the meaning of such Code section, acting in an official function. See Woodard v. Laurens County, supra at 405; Gilbert v. Richardson, supra at 749-751; Crider v. Zurich Ins. Co., supra. Running over the coil of barbed wire came within the meaning of “negligence arising from the operation of such vehicle.” Strickland v. Wayne County, 113 Ga. App. 499 (2) (148 SE2d 467) (1966); see also Blumsack v. Bartow County, supra; Long v. Hall County Bd. of Commrs., 219 Ga. App. 853, 857 (2) (467 SE2d 186) (1996).

(b) Sovereign or official immunity is waived only to the extent of insurance coverage. OCGA § 33-24-51 (c). Therefore, any exclusions under the terms of the policy or claim that are not covered will not cause a statutory waiver of immunity. Dugger v. Sprouse, 257 Ga. 778 (364 SE2d 275) (1988); McLemore v. City Council of Augusta, 212 Ga. App. 862 (433 SE2d 505) (1994); Mitchell v. Hartford Accident &c. Co., 168 Ga. App. 126 (308 SE2d 374) (1983); Cobb County v. Hunt, 166 Ga. App. 409 (304 SE2d 403) (1983).

The commercial general insurance policy (“CGIP”) purchased by Coweta County provided insurance coverage for operation of mobile equipment, which clearly includes a vehicle coming within OCGA § 33-24-51 (b). Crider v. Zurich Ins. Co., supra. Plaintiff was not an employee within the exclusion of the policy, because he was a State inmate who was compelled to work for the defendants as an involuntary servant under color of law. OCGA § 42-5-60 (e); Ga. Admin. Code §§ 125-3-5-.01 through 125-3-5-.06; Hall County v. Loggins, supra at 433. Also, plaintiff was not a “leased employee” within the definition of the policy; plaintiff was not the employee of “a labor leasing firm,” the State, because Art. I, Sec. I, Par. XXII of the Georgia Constitution of 1983 prohibits the State from engaging in the practice of leasing inmates for profit to perform labor. See Penitentiary Co. No. 2 v. Rountree, 113 Ga. 799 (39 SE 508) (1901); OCGA §§ 17-14-15; 42-5-60 (a) and (e). Further, the State paid Coweta County to feed, house, and guard State prisoners, including plaintiff, which does not come within the plain meaning of the exclusion under this CGIP, because such terms are not typical in a contract of employment. Thus, the State and Coweta County do not come within the definition of “a labor leasing firm,” which means a private, for profit business. Where an insurance exclusion is uncertain and ambiguous, the exclusion must be construed against the insurer; therefore, neither the State nor Coweta County can be construed to be “a labor leasing firm.” Likewise, plaintiff was not an insured under the policy, because he was not an employee but an involuntary servant. OCGA § 13-2-2 (5); Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 715 (3) (470 SE2d 659) (1996); Lumbermen’s Mut. Cas. Co. v. Plantation Pipeline Co., 214 Ga. App. 23 (447 SE2d 89) (1994); Lakeshore Marine v. Hartford Accident &c. Co., 164 Ga. App. 417 (296 SE2d 418) (1982); Hall County v. Loggins, supra; Travelers Indem. Co. v. Whalley Constr. Co., supra at 440-441.

Contrary to the position of the defense, the bush hog was not being passively transported at the time of the injury but was in operation when the wire was struck; therefore, the “transportation exclusion” was not applicable. Further, there is no evidence that the tractor was “registered in [the name of Coweta County] under any motor vehicle registration law” to cause such exclusion to even become applicable. Therefore, these exclusions have no application.

(c) Directing, supervising, and guarding a routine detail of correctional inmates in picking up trash and cutting grass along a county road involves no discretion and was ministerial in nature as a matter of law. Therefore, Officer Holcomb’s acts or omissions in supervising inmates were subject to tort liability. OCGA §§ 42-5-53 (b); 42-5-60 (e); Ga. Admin. Code §§ 125-2-3-.04; 125-3-1-.02; 125-3-1-.05; 125-3-2-.02; 125-3-2-.07; 125-3-2-.08; 125-4-3-.01 through 125-4-3-.04; 125-4-4-.01 through 125-4-4-.12; Gilbert v. Richardson, supra at 749-753; Hiers v. City of Barwick, 262 Ga. 129, 134 (414 SE2d 647) (1992); Logue v. Wright, 260 Ga. 206 (392 SE2d 235) (1990); Nelson v. Spalding County, 249 Ga. 334 (290 SE2d 915) (1982); Williams v. Dept. of Corrections, 224 Ga. App. 571 (481 SE2d 272) (1997); see also Joyce v. Van Arsdale, 196 Ga. App. 95 (395 SE2d 275) (1990); Keener v. Kimble, 170 Ga. App. 674, 676 (2) (317 SE2d 900) (1984).

(d) To the extent that official immunity was waived under OCGA § 33-24-51 (b), “[a] county may be liable for a county employee’s negligence in performing an official function to the extent the county has waived sovereign immunity.” Gilbert v. Richardson, supra at 754. “It follows, therefore, that where governmental immunity is not present then no reason appears why a county may not be liable for the negligence of a convict who is engaged in the performance of a duty of a county, the maintenance of the roads of the county, and at the direction and with the knowledge and consent, and under the express authorization of the county.” Hall County v. Loggins, supra at 433 (3). Thus, the county can be held liable for the negligence of inmates to the extent that such negligence arose from the operation of the tractor causing injury to the plaintiff, i.e., the failure of other inmates to remove the coil of barbed wire from the path of the bush hog or to warn plaintiff to avoid the coil of wire.

(e) Warden McKenzie and Deputy Warden Pye have no tort liability as Officer Holcomb’s supervisors, since acts or omissions on their part, if any, were not the proximate cause of plaintiff’s injuries, which were caused either by the negligence of Officer Holcomb or the concurrence of his negligence and the negligence of other inmates under his direction and supervision. Further, their official acts were discretionary, so that their official immunity was not waived. Gilbert v. Richardson, supra at 752-753; see also Vertner v. Gerber, 198 Ga. App. 645 (402 SE2d 315) (1991); Price v. Owen, 67 Ga. App. 58 (19 SE2d 529) (1942).

(f) In this analysis, it must next be determined what act or omission under a duty of reasonable care that was owed to the plaintiff was breached by Officer Holcomb.

The actions by Officer Holcomb, a correctional officer, over State prisoners were governed by the rules and regulations of the Georgia Department of Corrections, and he was required to exercise reasonable care to protect the safety of the inmates under his control. OCGA § 42-2-11; see paragraph (c), supra, which sets forth the applicable regulations under the Georgia Administrative Code, supra; OCGA § 42-5-2 (a); and Williams v. Dept. of Corrections, supra. Officer Holcomb had a duty to protect plaintiff’s “safety and general well-being [because the] affirmative exercise of [his delegated] power so restrains an individual’s liberty that it renders him unable to care for himself! ] and fails to provide for his . . . reasonable safety. . . . The affirmative duty to protect arises not from the State’s knowledge of the individual’s predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf.” (Citations omitted.) DeShaney v. Winnebago County Dept. of Social Svcs., 489 U. S. 189, 199-200 (109 SC 998, 103 LE2d 249) (1989). Thus, Officer Holcomb had a duty to exercise ordinary care to protect the plaintiff.

Officer Holcomb was liable in his official capacity for failure to supervise the inmates under his control to detect, prevent, or stop acts or omissions of the inmates that create an unreasonable danger or risk to other inmates or third persons. See Hall County v. Loggins, supra at 433.

(g) The trial court erred in granting summary judgment to Coweta County and Officer Holcomb; the trial court did not err in granting summary judgment to Warden McKenzie and Deputy Warden Pye.

Judgment affirmed in part and reversed in part.

Ruffin, J, and Senior Appellate Judge Harold R. Banke concur.

Decided November 25, 1997

Charles M. Goetz, Jr., Scott M. Zahler, for appellant.

Hawkins & Parnell, Kimberly H. Ridley, Debra E. Levorse, Debra L. Dewar, for appellees.

       As a prisoner compelled to work, plaintiff legally was a servant within the meaning of OCGA § 33-24-51 (b) at the time of his injury while operating the insured tractor.

       For purposes of determining insurance coverage and waiver of sovereign immunity, arising out of use of and operation of an insured vehicle, under OCGA § 33-24-51 (b), plaintiff’s negligence, if any, may he considered in running over the coil of wire. To satisfy this Code section as well, the negligence of the other prisoners in failing to discover and remove the wire, as well as the negligent supervision by Officer Holcomb of the prisoners and to discover and remove the wire himself comes within the use and operation of the insured vehicle.


author: McMurray, Presiding Judge.

text:
    A97A2146.
    JENKINS v. THE STATE.
    (494 SE2d 311)
   McMurray, Presiding Judge.

Defendant Jenkins appeals his conviction of the offense of armed robbery. Held:

1. Prior to trial, defendant filed a Brady (Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963)) motion which resulted in the trial court conducting an in camera review of the prosecutor’s file. The trial court concluded that the files did not contain evidence favorable to defendant. Defendant then requested that the prosecutor’s file be copied, sealed, and preserved for possible use by the appellate courts. The trial court’s denial of this motion to copy and seal the prosecutor’s file for use by the appellate courts forms the basis of the first enumeration of error. However, defendant makes no specific claim that any particular exculpatory evidence was in fact suppressed and thus has no grounds to appeal the trial court’s review of the prosecutor’s file. Any error on the part of the trial court in refusing to make a record of the in camera inspection was harmless. Barnes v. State, 157 Ga. App. 582, 584-589 (2) (277 SE2d 916). See also Bartlett v. State, 196 Ga. App. 174 (1) (396 SE2d 31).

2. The remaining enumeration of error complains of the admission of identification testimony by the convenience store cashier who was robbed by defendant and co-defendant Dennis. Defendant complains that irreparable misidentifications occurred due to suggestive photographic and lineup identification procedures.

Three days after the robbery, the cashier identified defendant and co-defendant Dennis from an array of eight photographs. Defendant contends the photographic array was suggestive because the photographs of himself and co-defendant Dennis were noticeably different than the other photographs used in that they were on a different type of paper, with different backs, and were not numbered as the other photographs used in the photo array.

Subsequently, the cashier identified defendant and co-defendant Dennis from a lineup. Defendant complains that the lineup was impermissibly suggestive in that both he and co-defendant Dennis were included in a group of only five, and that the other three members of the group were distinctly different in appearance from themselves and from the description of the perpetrators given to police by the cashier.

Decided November 25, 1997.

Celia Larsen, for appellant.

Nonetheless, even if it is assumed that the identifications by photograph and lineup were impermissibly suggestive, in order to establish a due process violation defendant must also show a very substantial likelihood of irreparable misidentification. “The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the perpetrator at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the perpetrator, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” (Citations and punctuation omitted.) Ellison v. State, 216 Ga. App. 639, 640 (1) (455 SE2d 361). See also Clark v. State, 226 Ga. App. 176, 178 (3) (486 SE2d 393).

When these factors are applied to the circumstances of the case sub judice, we find no substantial likelihood of misidentification. The armed robbery took place inside a well-lighted convenience store. The cashier testified that she had good eyesight with her glasses which she had on at the time of the robbery and that she had no problem in seeing. Both defendant Jenkins and co-defendant Dennis stood as close as two feet from the cashier during the robbery and were within view of the cashier for two to three minutes during the robbery. The cashier gave a general description of the robbers as two males, nineteen to twenty-one years of age, and clean shaven. While the cashier recalled her estimate of the robbers’ height as “five three and five eleven,” the police officer who responded to the scene of the robbery recalled her estimate as “five foot five to five foot eight.” During colloquy both defendant and co-defendant Dennis represented their height as five feet nine inches. Upon viewing the photographic array, the cashier positively identified defendant and co-defendant Dennis. This identification was repeated at the lineup 12 days after the robbery. The cashier never wavered in her identification and positively identified both men at trial. The totality of the cashier’s testimony established a basis for the in-court identifications independent of the photographic array and lineup. The trial court did not err in admitting the cashier’s identification testimony. See also Phillips v. State, 204 Ga. App. 698, 699 (1) (420 SE2d 316) and Banks v. State, 203 Ga. App. 355 (416 SE2d 866).

Judgment affirmed.

Beasley and Smith, JJ., concur.

Ralph M. Walke, District Attorney, Nelson, Gillis & Smith, James S. Smith, Jr., for appellee.


author: McMURRAY, Presiding Judge.

text:
    A97A2401.
    STOKES v. TACO BELL CORPORATION.
    (494 SE2d 355)
   McMURRAY, Presiding Judge.

Plaintiff Janice Stokes, formerly a resident of Georgia and now a resident of Middletown, Connecticut, brought this pro se tort action against defendant Taco Bell Corporation seeking to recover for personal injuries sustained on May 17, 1993, when she bit into “a hard substance and did injury to her teeth and gums,” while eating a Nacho Supreme purchased at defendant’s establishment. Defendant denied the material allegations and propounded interrogatories and requests for documents. Subsequently, defendant moved to compel plaintiff to respond to discovery and sought attorney fees for bringing the motion to compel. The trial court ordered plaintiff to “fully respond to the Defendant’s outstanding discovery requests within fifteen (15) days,” and further directed the parties to appear on March 25, 1996, “for a hearing on the amount of expenses and attorney’s fees that will be assessed against the Plaintiff pursuant to O.C.G.A. § 9-11-37 (a) (4) (A).” After that March 25, 1996 hearing, the trial court awarded defendant $800 “for costs incurred in the preparation of Defendant’s Motion to Compel,” gave plaintiff an additional ten days to respond to interrogatories, and set a time and procedure for plaintiff’s deposition by telephone. This order expressly warned “[t]hat if Plaintiff fails to comply or sufficiently respond to any of the questions propounded to her within her deposition, the above-styled case will be dismissed.”

In a letter dated April 1,1996, defense counsel informed plaintiff that he was “available to take [plaintiff’s] deposition via telephone between the hours of 9:00 a.m. and 5:00 p.m. on any day during the week of April 15-19, 1996.” On April 10, 1996, defendant moved to dismiss the complaint due to plaintiff’s alleged failure to comply with the trial court’s discovery order. On August 29, 1996, this motion to dismiss for failure to comply with the court’s discovery order was renewed on the ground that “[d]efense counsel, . . . despite numerous requests via telephone and by correspondence, has not received its $800 award of attorney’s fees and expenses for Plaintiff’s wilful failure to comply with [the] Court’s previous orders.” Plaintiff replied that she should not be required to make an “immediate payment of the awarded fees and expenses prior to a settled claim or the final adjudication of the underlying matter.” In an order entered December 12, 1996, the trial court ordered plaintiff to pay the $800 “no later than December 31, 1996,” ordered her to produce for inspection and non-destructive testing the “substance alleged to have caused injury,” and informing her that if she “fail[ed] to comply with the requirements of this Order in any manner, her Complaint will be dismissed with prejudice.”

In a letter dated January 2, 1996 [sic], defense counsel informed the trial court that plaintiff had failed to pay the $800 and further failed to produce the alleged foreign substance for inspection. In an order entered January 7, 1997, the trial court found that plaintiff “failed to comply with [the] Court’s December 11, 1996 Order directing payment of attorney’s fees to Defendant in the amount of $800.00 no later than December 31,1996, and [also] failed to forward to Defendant that alleged foreign substance,” and dismissed the complaint with prejudice. This pro se appeal followed. In seven related enumerations of error, plaintiff contends the trial court erred in dismissing her complaint. She argues the trial court failed to apply OCGA § 9-11-26 (b) (3); failed to conduct an in camera inspection; failed to apply the proper standard of awarding attorney fees under OCGA § 9-11-37; failed to apply OCGA § 9-11-5 (b); failed to apply OCGA § 9-11-7 (b) (1); failed to conduct a hearing after issuing a self-executing order of dismissal; and erred in imposing the drastic sanction of dismissal. Held:

1. “It remains the rule that a prior finding of wilfulness' bad faith, or that behavior which at best reflects a conscious indifference to the consequences of failure to comply with the trial court’s order compelling discovery is a prerequisite to the imposition of the harsher sanctions authorized by OCGA § 9-11-37 (b) (2). Schrembs [v. Atlanta Classic Cars, 261 Ga. 182 (402 SE2d 723)]; Swindell v. Swindell, 233 Ga. 854, 856 (2) (213 SE2d 697) (1975). However, the procedure no longer requires a second evidentiary hearing, complete with oral argument, before the imposition of sanctions. ‘(T)he trial court need not conduct a hearing on the issue of wilfulness in every case. Such a requirement serves no purpose where the trial court can otherwise determine wilfulness on the part of the party against whom the sanctions are sought.’ (Footnote omitted.) Schrembs, supra at 182-183.” (Emphasis omitted.) Vining v. Kimoto USA, 209 Ga. App. 296, 297 (2) (433 SE2d 342).

As a matter of procedure, the trial court in the case sub judice “did not err by deciding, without a [third] evidentiary hearing, whether [plaintiff’s] continued total failure to [make suitable arrangements to pay the $800 imposed as a discovery sanction, over the period from March 25, 1996 to December 31, 1996,] warranted the ultimate sanction of dismissal.” Vining v. Kimoto USA, 209 Ga. App. 296, 297 (2), 298, supra.

2. On the merits, “a [plaintiff’s] wilful failure to comply with an order requiring the payment of attorney’s fees as reimbursement for the expenses incurred by the [defendant] in obtaining a discovery order has been held to authorize the imposition of [the ultimate] sanction [of dismissal]. See Mathews v. City of Atlanta, 167 Ga. App. 168 (306 SE2d 3) (1983).” Serwitz v. Gen. Elec. Credit Corp., 184 Ga. App. 632, 633 (362 SE2d 439). “The trial court [in the case sub judice] was authorized to conclude that [plaintiff’s] continued total failure to [pay, over a nine-month period, any portion whatsoever of the $800 imposed by court order as a discovery sanction] was a wilful disobedience of that order, authorizing dismissal of the complaint. Schrembs v. Atlanta Classic Cars, 197 Ga. App. 450, 451 (398 SE2d 712) (1990), aff’d, 261 Ga., supra. [Cits.]” Vining v. Kimoto USA, 209 Ga. App. 296, 298 (3), supra. “[T]he adequacy of lesser sanctions is highly doubtful in view of the plaintiff’s failure to [heed] the trial court’s warning that failure to comply with its order[, when coupled with her failure to] present a reasonable excuse for that failure[,] would result in dismissal with prejudice. [Cit.] We find no abuse of discretion in the trial court’s order.” Mathews v. City of Atlanta, 167 Ga. App. 168, 170, supra.

Decided November 25, 1997.

Janice Stokes, pro se.

Hawkins & Parnell, Stephen M. Brooks, Warner S. Fox, for appel-lee.

Judgment affirmed.

Beasley and Smith, JJ, concur.


author: Ruffin, Judge.

text:
    A97A2496.
    SAVAGE v. THE STATE.
    (494 SE2d 359)
   Ruffin, Judge.

A jury found Terrance Savage guilty of first-degree arson. Savage appeals, arguing that the circumstantial evidence presented at trial was insufficient to prove his guilt beyond a reasonable doubt. For reasons which follow, we affirm.

“The evidence is sufficient as a matter of law if, when viewed in the light most favorable to the verdict, a rational trier of fact could find all the essential elements of the crimes. Jackson v. Virginia, 443 U. S. [307], 319-320 [(99 SC 2781, 61 LE2d 560) (1979)].” Gable v. State, 222 Ga. App. 768, 769 (1) (476 SE2d 66) (1996). Viewed in this light, the evidence shows that Savage was involved in a nubile relationship with Lavivian Bridges for over three years. The couple lived in Bridges’ apartment with her four children during this time. Bridges, however, decided to end the relationship, so while Savage was at work, she gathered his things, placed them in garbage bags, and placed them outside of her apartment. Bridges and her children then went to a friend’s house. When Bridges returned home later that evening, she discovered her apartment building in flames. The fire department later determined that Bridges’ apartment was intentionally set on fire.

At trial, the fire department captain who investigated the fire first observed that Bridges’ apartment was “heavily damaged with fire and smoke.” The fire investigator identified three areas of interest within that apartment — the living room, the master bedroom, and the hallway — because those rooms were extremely damaged by fire. He also noticed a “pour pattern!,]” which occurs when “some type of liquid has been poured out on [a] floor covering, [such as carpet], and during the fire, it lights off and burns,” in the hallway, living room, and bedroom. The pour pattern in the hallway was eight to ten feet long and approximately 24 inches wide.

Those areas also had a strong odor of gasoline, so the fire investigator took carpet samples from where he found the pour patterns to the State Crime Lab. An expert witness from the State Crime Lab confirmed that the carpet samples contained gasoline, and that no other chemicals, such as those contained in cologne, could be confused with the chemical composition of gasoline. The fire investigator did not find any evidence that accidental causes such as a carelessly laid cigarette, matches or a malfunctioning furnace started the fire. Based on his investigation, the fire investigator concluded that the fire was caused when “some type of flammable or combustible liquid was poured out and set on fire.”

When Bridges testified, she told the jury that her apartment was in good condition when she and her children left that afternoon. She stated that there was no gasoline stored in her apartment, only charcoal lighter fluid that was stored in the kitchen. Bridges further testified that when she returned to her apartment on the night of the fire, she saw Savage standing outside of her apartment. Because Savage appeared upset, Bridges kept driving and left the apartment complex. When she returned approximately ten minutes later, the building was on fire. After the fire, Bridges spotted a gasoline can near a creek behind her apartment.

A neighbor in the apartment complex, Linnie Boyd, testified that on the day of the fire, he saw Savage leave the apartment building, walk behind it, and then return upstairs toward Bridges’ apartment. In addition, Boyd noticed that Savage was acting “real fidgety and sweating a little bit.” Boyd asked Savage what was happening when he saw smoke coming from one of the apartments, and Savage responded that the apartment was on fire. Boyd therefore called the police department and alerted other people in the building about the smoke.

Another State witness, Clarence Swint, told the jury about a conversation he and Savage had on the night of the fire. Savage called Swint and told him that “he had fucked up.” According to Swint, Savage appeared nervous and told him he was angry that Bridges had put his clothes outside. Savage also thought that Bridges might reconcile with her ex-husband. Swint also testified, “[Savage] made a couple of statements to me that I can recollect ... he said he was shaving and had been drinking, and somehow the fire started, and he tried to put it out, and he couldn’t put it out, so he ran.” Swint encouraged Savage to talk to the police and “tell them you made a mistake or whatever, and [Savage] agreed to do that. . . .”

Savage testified in his defense. He stated that he found his clothing outside of the apartment when he returned home from work on the evening of the fire. Bridges and the children were not at home. Although he and Bridges had had a misunderstanding the previous evening, they had not argued that day, so Savage did not expect to find his belongings outside when he returned from work. Savage brought his things back inside, smoked a cigarette, two marijuana cigarettes, and began drinking a fifth of Canadian Club while he waited for Bridges to return to discuss their situation. After Savage finished the fifth of liquor and shaved, he passed out. According to Savage, he awoke to the smell of smoke and discovered the fire in the living room. He tried to put the fire out, but did not call the fire department, although there were three telephones in the apartment. Savage stated that during his attempts to extinguish the fire, he went outside for air, which is when he saw his neighbor, Boyd.

Savage testified that he did not call the fire department because Boyd told him that he would call. Savage also said, “If I could put out the fire, the Fire Department wouldn’t have been called or anything, and I could say, hey, the place caught on fire, and I put out the fire. ... I was just going to tell [Bridges] that, that I didn’t have to call no Fire Department or anything, that the place caught on fire, and I just put it out.” But, when Savage could not extinguish the fire, he panicked and went to call Swint. According to Savage, he told Swint, “I’m fucked up[,]” rather than “I fucked up.” Savage further testified that he lost all of his possessions in the fire, he did not receive any insurance money as a result of the fire, and he did not benefit from the fire. Finally, Savage told the jury that he had no knowledge of how gasoline got into the apartment, and that he did not deliberately set the fire.

Savage argues on appeal that this evidence was not sufficient to support his conviction of first-degree arson because it was wholly circumstantial and did not exclude every reasonable hypothesis save that of his guilt. “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.” OCGA § 24-4-6. Nevertheless, “‘[although the circumstantial evidence must exclude every other reasonable hypothesis save (defendant’s) guilt, it need not exclude every inference or hypothesis. (Cit.)’ ” (Emphasis supplied.) Harris v. State, 223 Ga. App. 661, 663 (478 SE2d 458) (1996). “ ‘[I]f the evidence meets this test, circumstantial evidence is as probative as direct evidence. Whether this burden has been met is a question for the jury.. When the jury is authorized to find the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis except the defendant’s guilt, the verdict will not be disturbed unless the verdict is insupportable as a matter of law.’ [Cit.]” Id. at 661-662.

Decided November 25, 1997.

Paul J. McCord, for appellant.

J. Tom Morgan, District Attorney, Anne Long, Priscilla N. Carroll, Assistant District Attorneys, for appellee.

The facts in this case exclude every other reasonable hypothesis. Nobody other than the defendant was present when the fire began. The State presented uncontroverted evidence that there were pour patterns containing gasoline found on the carpet in the three separate areas which were heavily damaged by fire. In addition, the fire captain who investigated the fire testified that the fire was intentionally set. These facts exclude the reasonable hypotheses that someone else started the fire or that the fire began accidentally. Thus, based on this record, we conclude that there was ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Savage committed first-degree arson.

Judgment affirmed.

Birdsong, P. J, and Eldridge, J, concur.


text:
    A97A2578.
    BATCHELOR v. THE STATE.
    (494 SE2d 357)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with two counts of burglary for twice unlawfully entering the dwelling of Michael Lay (“the victim”) with the intent to commit a theft therein. The evidence adduced at his jury trial revealed that “shortly before noon . . .” on May 1, 1996, the victim’s roommate, Raymond Kinchen, was home alone in their Grant Park residence, watching television in bed, when he “heard a truck pull up into the yard. [The] driveway goes up the full extent of the property, and there’s a parking area within 40 or 50 feet of the house. The bedroom is ... on the left-hand side of the house.” “The bedroom window was open.” Kinchen “looked out the window, didn’t recognize the truck or anything, [and] so . . . didn’t go to the door when he[, i.e., the unknown truck driver,] knocked on the door.” Kinchen identified defendant as the person he saw. Defendant “knocked on the door, waited for a few seconds, and [received] no answer. . . . He left the front door, walked around through the front yard to a side gate of the house, opened the gate, went through the backyard. . . . He went up to the laundry room door, [and] knocked on that door. . . . After he knocked on that door and went to the window, [defendant] then walked around to [another] door, knocked on that door.” Defendant “again looked through the window, didn’t see anyone, came onto the screened in porch which is right there beside that door, [and] raised a window which is the den window.” Defendant “stuck his head in from ... a little higher than chest up. At that point [Kinchen] was already on the phone to 911.”

Kinchen “didn’t know this person and if [he] had not invited someone onto [his] private property, they had no reason to be there.” After defendant “stuck his head inside[, Kinchen] said, may I help you please. [Defendant] pulled his head out of the window, turned around and was proceeding to walk out of the screened in porch. . . . [F]rom the bedroom window, [Kinchen] could see the vehicle. [He] could see additional people inside the vehicle and the tag number of the vehicle.” Kinchen “gave the operator the tag number.”

Michael Lay testified that on the evening of May 11, 1996, he was on his sofa taking a nap when he was awakened by the sound of his dogs barking. Lay “got up off the sofa and walked to [his] kitchen.” He saw “the defendant . . . coming out of [the victim’s] office.” Lay “yelled get the f— out of my house as loud as [he] possibly could. . . .” Defendant said, “just the [person] I wanted to see and peeped his head back into the office, . . . and another blond headed guy, long blond hair, . . . came back out of [Lay’s] office.” Lay “started backing up. The blond headed guy . . . crossed in front of [Lay] and grabbed [Lay’s] right side and was grabbing [Lay’s] shoulder. [Defendant] then . . . was grabbing [Lay’s] other arm and a struggle ensued.” Lay picked up an ornamental “bust of David . . .” and swung at defendant. He then “picked up the chest that the bust was sitting on and shoved it into the actual chest of the blond headed gentleman.”

Lay managed to get the front door opened and “yelled as loud as [he] could, help, call 9911 [sic], I’m being robbed, and then [he] took off running to [his] next door neighbor’s house and called the police.” Some other neighbors “were down the street in front of their home. . . . [Lay] yelled to them, get the tag number, they tried to rob my house, they just robbed my house. . . .” Lay identified defendant as the darker-haired intruder.

Detective W. K. Bollinger of the City of Atlanta Police Department, Burglary Unit received both burglary reports. “On both instances they obtained the same tag number. The tag number came registered back to the same person, [defendant] in Forest Park.” Detective Bollinger “went to Forest Park and rode by the address that came back from the tag. When [he] arrived at that location, rode by, the truck that was described in the police report and the tag number was at that address in the driveway.” Detective Bollinger arranged a photographic lineup, from which array the victim picked defendant’s photograph.

Defendant admitted being at the victim’s residence on May 1, 1996, and on May 11, 1996. He defended on the ground that he was invited there to purchase marijuana. The jury found defendant guilty of criminal attempt to commit burglary for the May 1 incident (Count 1) and further found him guilty of burglary for the May 11 incident (Count 2). His amended motion for new trial was denied, and this appeal followed. Held:

“It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. . . .” OCGA § 17-8-57. In his sole enumeration of error, defendant contends the trial court erred in giving the following jury instruction: “That the defendant did not accomplish his apparent purpose would not necessarily prevent a finding of guilt of the offense of burglary.” (Emphasis supplied.)

Defendant argues the emphasized portion of this instruction amounts to an improper comment on the evidence. The State correctly replies this language is verbatim from Part 4, Section F, Charge (2) of the Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed.).

This instruction cites as authority White v. State, 7 Ga. App. 596 (67 SE 705) and Daniel v. State, 48 Ga. App. 789 (173 SE 485). Neither case employs the language “apparent purpose” in enunciating the legal proposition that completion of the allegedly intended crime is not necessary to establish a burglary so long as there is an unlawful entry with the requisite felonious intent. Id. at 789, hn. 4; White v. State, 7 Ga. App. 596 (2), supra. Nor does Cooper v. State, 69 Ga. 761 (1) (1882), as cited by both cases, employ such language. This language was, however, subsequently employed in opinions of this Court. See Grice v. State, 166 Ga. App. 706 (1), 707 (305 SE2d 438) and citations. “That this is so does not render such language necessarily appropriate for use in charging the jury. Chedel v. Mooney, 158 Ga. 297 (11) (123 SE 300); Porter v. State, 180 Ga. 147 (2) (178 SE 151).” Jackson v. State, 225 Ga. 553, 561 (7) (170 SE2d 281).

Decided November 25, 1997.

John R. Mayer, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Cari K. Johanson, Assistant District Attorneys, for appellee.

Accordingly, substitution of the term “alleged” for the ambiguous term “apparent” would obviate any contention that the charge intimates the defendant’s guilt based upon conflicting evidence of criminal intent. But the precise instruction under consideration in the case sub judice was held to be a correct statement of the law and not to be argumentative in Ricks v. State, 178 Ga. App. 98, 101 (4) (341 SE2d 895). We decline to revisit that ruling and find it controlling in the case sub judice. Defendant’s sole enumeration is without merit.

Judgment affirmed.

Beasley and Smith, JJ., concur.


text:
    A97A1095.
    CITY COUNCIL OF AUGUSTA v. BOOKER et al.
    (494 SE2d 374)
   Birdsong, Presiding Judge.

Pursuant to the grant of an interlocutory appeal, the City Council of Augusta, Georgia, appeals the trial court’s order denying its motion for summary judgment in this personal injury action brought by Lolita Patrice Booker, as next friend of Robert Rouse, a minor, and in her own capacity as parent of the child.

Robert Rouse, a five-year-old child, was seriously injured while riding his bicycle after he darted through an intersection and was struck by a motorist who had the right of way. Robert passed through the intersection on many occasions before the accident and knew that it was controlled by a two-way stop and that he was supposed to stop and look both ways for oncoming traffic before proceeding through the intersection. Photographs of the intersection show that it involved a side street and a busy thoroughfare.

On the day of the injury, Robert was aware of the stop sign and knew what it meant. For whatever reason, however, he disregarded the stop sign. He testified at his deposition that he sped through the intersection because he heard his mother calling him and knew that if he was caught playing where he was not allowed to play, he would be in trouble. This deposition testimony was corroborated in every material respect by the deposition of his older sister, who was riding with him when the accident occurred. She testified that she called for Robert to. stop, but he said, “shut up,” and offered to race her home.

Robert’s deposition testimony, however, is contradicted by an earlier affidavit which stated he was not aware of the stop sign on the date of his injury and that he was only made aware of the stop sign by his mother at a later time. His affidavit further stated that he would have stopped at the stop sign had he known one was there.

Appellees’ claim is based on nuisance; they contend Robert did not stop because he either did not see the stop sign at the intersection as it was partially obstructed by a power pole or did not see the oncoming car because his view of the intersecting street was obscured by tall grass on an overgrown lot. Thus, appellees contend the maintenance of either condition constitutes a nuisance and that the nuisance contributed to the cause of the accident.

The City moved for summary judgment contending that Robert’s deposition showed the City’s actions were not the proximate cause of the accident. After the motion was denied, permission to file this appeal was granted. The City contends the trial court erred by not finding that it did not maintain a nuisance, as a matter of law, and by not finding, as a matter of law, that the alleged nuisance was not the proximate cause of Robert’s accident. Held:

1. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

In this case the City’s motion relied upon the deposition testimony from Robert and his sister that Robert was aware of the stop sign yet chose to cross the intersection without stopping. Pretermit-ting whether the stop sign was partially blocked or the weeds too high and whether either event could have constituted a nuisance is the fact that Robert was aware of the stop sign and chose to ignore it. That is sufficient to demonstrate that the placement of the pole or the condition of the lot was not the proximate cause of Robert’s accident. Butler v. Huckabee, 209 Ga. App. 761, 762-763 (434 SE2d 576); Cummings v. Grubb, 184 Ga. App. 872, 874-875 (363 SE2d 167). Nevertheless, we do not rely on any contributory negligence on Robert’s part. See Clanton v. Gwinnett County School Dist., 219 Ga. App. 343 (464 SE2d 918); Trotter v. Ashbaugh, 156 Ga. App. 130 (274 SE2d 127). The mere occurrence of an unfortunate event, however, is not sufficient to authorize an inference of negligence. Robertson v. MARTA, 199 Ga. App. 681, 682 (405 SE2d 745).

2. Further, the statements in Robert’s affidavit blaming his injuries on the City do not create an issue of fact. These statements are directly contradictory of his deposition testimony, and on motion for summary judgment a party’s self-conflicting testimony is to be construed against him unless a reasonable explanation for the contradiction is offered. Gentile v. Miller &c., Inc., 257 Ga. 583 (361 SE2d 383); Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680).

Decided November 26, 1997.

Capers, Dunbar, Sanders & Bruckner, Ziva P. Bruckner, for appellant.

Dye, Tucker, Everitt, Wheale & Long, A. Rowland Dye, Fred M. Kennedy, for appellees.

Although we are concerned about applying this rule to the testimony of a young child, neither party has asserted that Robert is not a competent witness and both parties are relying on his testimony. Therefore, we see no reason not to apply the contradictory testimony rule to Robert’s testimony. We might be more concerned about Robert’s age if his affidavit were not prepared with the assistance of counsel and if he had offered some child-like excuse for the contradictions. In this case he made no attempt to explain the obvious contradictions between the affidavit and the deposition testimony even though he had the assistance of counsel on both occasions.

“The burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge.” Prophecy Corp., supra at 30. When there is no explanation for a party’s contradictory testimony or the explanation given determined to be unreasonable, “the trial court must eliminate the favorable portions of the contradictory testimony and then take all testimony on motion for summary judgment as it then stands, and construe it in favor of the party opposing the motion in determining whether a summary judgment should be granted.” (Citation and punctuation omitted.) Gentile v. Miller, supra.

In this case, as Robert made no effort to explain the contradiction between his deposition and his affidavit, the trial judge was required to exclude the favorable matters contained in his affidavit and then decided whether summary judgment should have been granted based on the remaining evidence. Construing the evidence in that manner, it is patent that the City was not responsible for Robert’s injuries and that the trial court erred by denying the City’s motion.

Accordingly, the denial of the motion for summary judgment must be reversed and the case remanded to the trial court with direction to enter summary judgment for the City of Augusta.

Judgment reversed with direction.

Ruffin, J., concurs. Eldridge, J., concurs in the judgment only.


author: Ruffin, Judge. Judge Harold R. Banke,

text:
    A97A1804.
    VEAL v. THE STATE.
    (494 SE2d 373)
   Ruffin, Judge.

Johnny Veal was indicted for armed robbery and two counts of aggravated assault. Veal’s first trial was declared a mistrial due to a hung jury. In a second trial, a jury found Veal guilty of two counts of aggravated assault. Veal appeals, asserting that the court in the second trial erred by failing to grant a mistrial following the prosecutor’s purportedly inappropriate comments during closing argument. For reasons which follow, we affirm.

Veal does not challenge the sufficiency of the evidence which, viewed in a light most favorable to support the jury’s verdict, showed that he and co-defendant Jarvis Youmas attempted to rob two victims at gunpoint. Rather, he claims that the assistant district attorney improperly placed his character in issue during closing argument. Specifically, the transcript shows that the assistant district attorney stated to the jury that Veal and Youmas were “two running buddies. They have been together for years, good times and bád, in trouble, out of trouble.” Veal objected to the statements and moved for a mistrial. The trial court denied the motion for mistrial, but sustained the objection, rebuked the prosecutor before the jury, and gave Veal an additional 15 minutes of closing argument to respond to the comment following the State’s closing argument. Veal asserts the trial court erred in denying his motion for mistrial. We disagree.

“ ‘The trial judge in passing upon a motion for mistrial on account of alleged improper argument is vested with a broad and sound discretion, and [her] ruling will not be controlled by this court unless manifestly abused.’ [Cit.]” Johnson v. State, 208 Ga. App. 747, 750 (4) (431 SE2d 737) (1993). Furthermore, “[c]ounsel are permitted to make reasonable deductions from the evidence, and upon these deductions an attorney may make almost any form of argument he desires.” (Citation and punctuation omitted.) White v. State, 208 Ga. App. 885, 890 (6) (432 SE2d 562) (1993).

In this case, Veal testified that he and Youmas were friends. And, although Youmas did not testify, the defense introduced and read to the jury Youmas’ testimony from Veal’s first trial, in which Youmas implicated Veal in two prior brushes with the law. Youmas stated that in a previous incident Veal was the driver of a stolen car, but was able to flee from police. Youmas also stated that on another occasion he and Veal were caught by police shooting a gun in Youmas’ back yard.

Considering the prosecutor’s remarks in light of this evidence, we do not find that the argument was anything more than a comment on evidence introduced by the defense. See Conner v. State, 251 Ga. 113 (6) (303 SE2d 266) (1983). Furthermore, even if we were to find the argument problematic, assessing its impact following the court’s rebuke of counsel before the jury and the allowance of additional closing argument in which Veal addressed the remark, we do not find that the trial court abused its discretion in failing to grant a mistrial. See Johnson, supra.

Decided November 26, 1997.

Emerson Carey, Jr., for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Jeffrey H. Brickman, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

Judge Harold R. Banke,

concurring specially.

I concur to emphasize that the prosecutor’s argument simply drew reasonable deductions and inferences from the evidence presented. Callahan v. State, 179 Ga. App. 556, 563 (5) (347 SE2d 269) (1986). It is well established that during closing argument, even remote, illogical or unreasonable inferences and deductions from the evidence provide no basis for objection. See id. Because the comments at issue were permissible, the rebuke and the additional time given the defense for argument were not required. Clark v. State, 146 Ga. App. 697, 698 (3) (247 SE2d 221) (1978).


author: Blackburn, Judge.

text:
    A97A2499.
    SMITH v. THE STATE.
    (494 SE2d 371)
   Blackburn, Judge.

Roy M. Smith appeals his conviction for the sale of cocaine, contending that the evidence against him was insufficient as a matter of law to support the verdict. For the reasons discussed below, we affirm the conviction.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Smith] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. . . . The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” (Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

Decided November 26, 1997.

Merritt & Rose, Chestley N. Merritt, for appellant.

Dupont K. Cheney, District Attorney, Carole E. Wall, Assistant District Attorney, for appellee.

On February 16,1996, Investigator Diana Freeman of the Multi-Agency Crack Enforcement Drug Task Force and a confidential informant paged Smith to meet them in the parking lot of a convenience store so that they could purchase drugs. Smith responded to this request, driving a white Cadillac with white curtains on the side windows. Freeman entered the Cadillac and purchased crack cocaine from Smith. The transaction was videotaped by a body camera which Freeman was wearing.

Freeman positively identified Smith as the individual who sold crack to her. Deputy Chuck Woodall, who has known Smith since 1994, taped the drug transaction as it took place with a video camera from his undercover vehicle, and he also identified Smith. Investigator Jim Gray and Investigator Al Cato conducted surveillance during the drug transaction, watching it as it took place on a monitor which picked up the signal from the body camera which Freeman was wearing. Both of them identified Smith as well. In addition, the pager responding to the number called by the confidential informant was found on Smith when he was arrested for the crime, and Smith admitted that he owned the white Cadillac. Under these circumstances, the evidence that Smith committed the crime of which he was charged was not only sufficient, but overwhelming. Finally, although Smith claims that his missing cousin who looks like him was the individual who sold cocaine to Freeman, the jury was clearly authorized to disbelieve him. Roker v. State, 262 Ga. 220, 221 (1) (416 SE2d 281) (1992).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.