author: McMurray, Presiding Judge.

text:
    A00A0421.
    COBB CENTER PAWN & JEWELRY BROKERS, INC. v. GORDON et al.
    (529 SE2d 138)
   McMurray, Presiding Judge.

The issue in this case is whether the pawnshop statute, OCGA § 44-12-130 et seq., relieves a pawnbroker of the necessity of recording a lien against a motor vehicle pledged as collateral in order to repossess the vehicle from a third party who, due to the pledgor’s fraud, purchased the vehicle without knowledge of the pawnbroker’s claim.

The facts are as follows: on May 27, 1993, Carlos Showers and Melissa Showers pledged a 1985 Mercedes to the appellant pawnbroker in exchange for $2,500. The Showerses kept the vehicle. The pawnbroker retained the title but did not perfect its security interest. The Showerses made only two payments and then defaulted. Accordingly, the pawnbroker filed a foreclosure action and obtained a writ of possession on December 21, 1993.

In early December 1993, the Showerses obtained a replacement certificate of title, which showed no lienholders. Using this title, they sold the vehicle to Anderson & Sons Auto Sales, Inc. (“Anderson”). Appellees Roderick Gordon and Cathy Gordon purchased the vehicle from Anderson on January 26, 1994, for $10,972.82. Anderson obtained a second replacement title on February 15, 1994, listing itself as lienholder. Anderson retained the title and did not show it to the Gordons.

The Gordons made payments totaling $4,725 until March 1995, when the pawnbroker located the vehicle and repossessed it. The pawnbroker recorded its lien in March 1996.

In June 1996, the Gordons sued the pawnbroker, Anderson, and the Showerses, alleging, inter alia, conversion against the pawnbroker and fraud and breach of contract against Anderson. Service was never perfected on the Showerses. After a bench trial, the trial court entered judgment in favor of the Gordons for $10,235 in actual damages, $9,000 in attorney fees, costs, and interest. Anderson and the pawnbroker were held jointly and severally liable. Anderson filed a motion for reconsideration which was granted. The pawnbroker appeals from the denial of its motion for new trial. Held:

1. We must first determine whether a final judgment was entered with respect to defendant Anderson. In its motion for reconsideration, Anderson asked the trial court to “amend its Order and Judgment to remove Movant as a culpable Defendant.” The Gordons filed a response but no brief in opposition. The trial court granted Anderson the requested relief. Neither the pawnbroker nor the Gordons assert as error the trial court’s “removal” of Anderson.

We construe the trial court’s “removal” of Anderson to be a dismissal rather than the grant of a motion for new trial. Therefore, under the facts of this case, we hold that the judgment was final. OCGA § 5-6-34 (a) (1). “Under our rules of pleading, it is substance and not mere nomenclature that controls.” Manning v. Robertson, 223 Ga. App. 139, 142 (2) (476 SE2d 889).

2. The pawnbroker argues that the trial court erred in ruling that it was required to file a lien in order to prevail over the rights of the Gordons. We disagree. Nothing in the pawnshop act exempts a pawnbroker from perfecting a lien against a motor vehicle in order to secure its interest against subsequent claims.

OCGA § 44-12-138 (b) (15) regulates the fees a pawnbroker may charge to register a lien against an automobile title. This clearly evinces the legislature’s intent to require pawnbrokers to record their liens in order to put innocent third parties on notice of their claims. OCGA § 40-3-50 (b) pertinently states that “[w]hen the security interest is perfected ... , it shall constitute notice to everybody of the security interest of the holder.” (Emphasis supplied.)

Moreover, the pawnbroker incorrectly relies on OCGA § 40-3-33 (a) (1) for the proposition that as a used car dealer, it is not required to record a lien in order to take priority over innocent third parties. As this Court noted in Hull v. Transp. Acceptance Corp., 177 Ga. App. 875 (341 SE2d 330),

In one of the first cases to interpret the Motor Vehicle Certificate of Title Act (Ga. L. 1961, p. 68, Sec. 1) (now OCGA § 40-3-1 et seq.), this court determined that the purpose of filing a certificate of title with the Commissioner of Motor Vehicles is to perfect a lien and give notice of its existence. Compliance with the filing requirements of the Act has the effect of “imputing constructive notice to all who may subsequently acquire an interest in or lien against the property.” Franklin Fin. Co. v. Strother Ford, 110 Ga. App. 365, 368 (1) (138 SE2d 679) (1964).

Id. at 876.

While the cited authority predates the 1992 revision of the pawnshop act, we see nothing in the revised laws which nullifies those holdings.

We recognize that OCGA §§ 44-12-130 (5) and 44-12-131 (a) (3) grant the pawnbroker the right to self-help repossession upon default without the necessity of filing a lien. However, this remedy is intended to apply to the defaulting pledgor, not a bona fide purchaser for value with no notice of the pawnbroker’s claim. For this reason, Harkness v. EZ Pawn Alabama, 724 S2d 32 (Ala. 1998), cited by the pawnbroker for the proposition that perfection of a security interest is not required prior to repossession from the defaulting pledgor, is inapposite.

3. The pawnbroker next contends that the trial court erred in ruling that OCGA § 40-3-31, which governs replacement certificates of title, applies to pawnbrokers. We disagree. That Code section grants unconditional title to the owner listed on a replacement certificate of title unless a challenge is mounted within six months after the replacement title is issued. There is no conflict between this statute and the pawnshop act. Nothing in the pawnshop act addresses replacement certificates of title.

Decided January 25, 2000.

Michael L. Wetzel, for appellant.

Johnson, Freeman & Perkins-Hooker, Horace J. Johnson, Jr., Reed Edmondson, Jr., Kirby G. Bailey, for appellees.

Most pertinent to this case is OCGA § 40-3-31 (4), which states:

If two or more innocent persons are the victims of the fraud or mistake of another and none of the victims could have reasonably taken steps to detect or prevent the fraud or mistake, the victim who first acquired an interest in a vehicle through any certificate of title shall have such victim’s interest protected.

The pawnbroker could have perfected a lien long before the expiration of six months after even the second replacement title was issued, on February 15,-1994. This would have been a reasonable step to prevent the fraud perpetrated upon the Gordons. Thus, the pawnbroker is not an innocent party pursuant to OCGA § 40-3-31 (4).

4. Finally, even if the pawnbroker were an innocent party, under OCGA § 23-1-14, “[w]hen one of two innocent persons must suffer by the act of a third person, he who put it in the power of the third person to inflict the injury shall bear the loss. OCGA § 23-1-14. This principle is applicable in conversion cases.” (Punctuation omitted.) Atlanta Classic Cars v. Chih Hung USA Auto Corp., 209 Ga. App. 908, 909 (439 SE2d 498); see also Cook Motor Co. &c. v. Richardson, 103 Ga. App. 129, 130 (2) (118 SE2d 502). By failing to file a lien, the pawnbroker enabled the Showerses to perpetrate the fraud. It must therefore bear the loss.

5. In light of the paucity of authority interpreting the pawnshop statute, we do not deem this appeal to be frivolous. Accordingly, appellees’ motion for frivolous appeal damages pursuant to OCGA § 5-6-6 is denied.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       See also 1990 Op. Atty. Gen. Ga. 14, No. 90-8, stating that in order to perfect its security interest in a vehicle, a used car dealer must follow the requirements specified in OCGA § 40-3-50.

       Compare Glinton v. And R, Inc., 271 Ga. 864 (524 SE2d 481) (1999), and Hooks v. Cobb Center Pawn &c., 241 Ga. App. 305 (527 SE2d 566) (1999), in which the pawnshop statute was deemed to conflict with, and prevail over, the criminal usury statute.


source: Caselaw Access Project

author: McMureay, Presiding Judge.

license: Public Domain

text:
    A00A0605.
    HAMILTON v. THE STATE.
    (528 SE2d 843)
   McMureay, Presiding Judge.

Defendant Roy Hamilton was indicted on one count of selling cocaine, one count of possessing cocaine with intent to distribute, and one count of possessing less than an ounce of marijuana. He was convicted on both cocaine counts and acquitted on the marijuana charge. Hamilton appeals from the denial of his motion for new trial. Held:

In his sole assertion of error, Hamilton contends the trial court abused its discretion in refusing to declare a mistrial after the confidential informant, David Dobbs, testified that he had “found out that Roy Hamilton was selling cocaine out of a residence on Greenough Road.” Hamilton argues this testimony impermissibly placed his character in issue. We disagree.

Dobbs made the statement after the prosecutor asked Dobbs how he became involved in the purchase of cocaine from Hamilton. Afterward, Dobbs testified that Hamilton “told me that he would be more than willing to pay me with crack cocaine” for electrical work that Hamilton wanted done on his house. Next, Dobbs testified that he immediately contacted the Southwest Georgia Drug Task Force, which arranged the transaction that led to Hamilton’s arrest and conviction.

The evidence at issue was properly admitted to explain the circumstances leading to Hamilton’s arrest. Sledge v. State, 223 Ga. App. 488 (1) (477 SE2d 898) (confidential informant’s testimony that defendant was on a list of people from whom drugs could be purchased deemed admissible to explain circumstances leading to defendant’s arrest); Carson v. State, 208 Ga. App. 534, 535 (4) (431 SE2d 156) (officer’s testimony that he sought out defendant on the night in question because defendant was a potential target in a drug investigation held admissible to explain circumstances leading to defendant’s arrest); Frazier v. State, 195 Ga. App. 599, 600 (4) (394 SE2d 396) (officer’s testimony that he was told defendant would be able to supply him with cocaine held admissible to explain circumstances leading to defendant’s arrest).

Contrary to Hamilton’s argument, Hart v. State, 174 Ga. App. 134 (329 SE2d 178), does not require reversal of his conviction. In Hart, an investigating officer testified that he received information from a confidential informant that the defendant “was selling cocaine out of the apartment that he lived in.” This court ruled that the testimony did not fall within any exception to the hearsay rule, improperly placed the defendant’s character in issue, and was erroneously admitted to show the defendant’s motive and intent.

Unlike Hart, in the case sub judice the confidential informant testified and was subject to cross-examination. Moreover, the informant’s testimony was merely cumulative of the earlier testimony of Southwest Georgia Drug Task Force Investigator Tim Williams. When asked how he knew cocaine might be found at Hamilton’s residence, Williams replied that the task force had been informed by Dobbs that Hamilton offered to pay Dobbs with cocaine and that Hamilton told Dobbs to come to his residence to obtain it. “Whether to grant a motion for mistrial is within the trial court’s sound discretion, and the trial court’s exercise of that discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant’s right to a fair trial.” Ottis v. State, 271 Ga. 200, 201 (3) (517 SE2d 525).

Decided January 25, 2000.

John L. Tracy, for appellant.

J. Brown Moseley, District Attorney, Victoria Spear-Darrisaw, Assistant District Attorney, for appellee.

Considering Dobbs’ statement in the context of all the other evidence, we do not find that a mistrial was necessary to preserve Hamilton’s right to a fair trial.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


author: Eldridge, Judge. BARNES, Judge,

text:
    A99A2079.
    GARRETT v. McDOWELL.
    (527 SE2d 918)
   Eldridge, Judge.

This appeal arises from a dispossessory action filed by the plaintiff-landlord, Imogene B. McDowell, against the defendant-tenant, James A. Garrett. After a bench trial, the trial court entered judgment in favor of plaintiff, and defendant appeals.

1. Defendant, who is pro se, asserts several enumerations of error which require the consideration of the evidence heard by the trial court. However, no transcript of the proceeding is present in the record before us. (Citations and punctuation omitted.) Jones v. State, 226 Ga. App. 608, 609 (487 SE2d 89) (1997). Although the defendant has attached documentation to his brief concerning repairs he made to the property, “[a] brief cannot be used in lieu of the record for adding evidence.” (Citations and punctuation omitted.) Burks v. First Union Mtg. Corp., 209 Ga. App. 41, 42 (432 SE2d 822) (1993). “Where no transcript of evidence is filed all grounds requiring a consideration of evidence must be affirmed.” (Citations and punctuation omitted.) Prada v. Small Business Admin., 208 Ga. App. 710 (432 SE2d 274) (1993).

It is well-settled law that without a transcript to review, this court must assume as a matter of law that the evidence at trial supported the court’s findings. It is the burden of the complaining party, including pro se appellants, to compile a complete record of what happened at the trial level, and when this is not done, there is nothing for the appellate court to review.

2. Defendant also contends that additional evidence existed that he was not allowed to present at trial. However, in his appellate brief, defendant does not state what additional evidence he wanted to present. Further, the record does not show any ruling by the trial court excluding any evidence. “Because we do not have a ruling from the trial court regarding this issue, there is nothing for us to review. [Cit.]” Meyer v. Super Discount Markets, 231 Ga. App. 763, 768 (501 SE2d 2) (1998).

3. In two enumerations of error, the defendant claims that the trial court erred in not considering that, in a previous dispossessory action filed by the plaintiff, she alleged that a lesser amount of rent was due through October 1998. However, in the trial court’s judgment, the following findings of fact were made:

The plaintiff filed a previous dispossessory action, through counsel, which alleged the unpaid rent through October 1998, was $25,767. It was dismissed without prejudice. Accordingly, although the plaintiff’s records reflected a balance of $41,125.00 unpaid rent through November 1998, the court finds the unpaid rent to be $26,617.00 through November 1998.

In entering judgment, the trial court obviously took into consideration that, in plaintiff’s previously dismissed action, she stated that a lesser amount of rent was due through October 1998 than she claimed in this action. Accordingly, this enumeration is without merit.

4. Appellee moves for damages for frivolous appeal pursuant to OCGA § 5-6-6, which provides that “[w]hen in the opinion of the court the case was taken up for delay only, 10 percent damages may be awarded by the appellate court upon any judgment for a sum certain which has been affirmed.” Judgment was entered by the trial court in the amount of $26,946.04 plus court costs. Further, it appears to this court that all of the issues raised by appellant are without arguable merit and were pursued for delay only. See Warnock v. Davis, 267 Ga. 336 (478 SE2d 124) (1996); Yoh v. Daniel, 230 Ga. App. 640 (497 SE2d 392) (1998). Therefore, appellee’s motion for ten percent damages for frivolous appeal is granted. The clerk is directed to enter ten percent damages upon remittitur.

Decided January 14, 2000 —

Reconsideration denied January 26,2000

James A. Garrett, pro se.

David U. Crosby, for appellee.

Judgment affirmed.

Blackburn, P. J, concurs. Barnes, J., concurs in the opinion and dissents to the order granting damages for frivolous appeal.

BARNES, Judge,

concurring in part and dissenting in part.

I concur fully in Divisions 1, 2 and 3 of the majority opinion. I respectfully dissent to Division 4 because frivolous appeal penalties should not be assessed against the pro se appellant in this case. We find no merit in his appeal based, in part, on the absence of a transcript of the proceedings in the court below. Since we found no merit in some of his asserted errors as a result of a deficiency in the record and not the merits of these asserted errors, we should not impose a frivolous appeal penalty on this pro se litigant. See Antonone v. Atlantic Mut. Fire Ins. Co., 191 Ga. App. 457, 458 (4) (382 SE2d 126) (1989); Bhatia v. West Cash &c. of Savannah, 157 Ga. App. 145, 146 (276 SE2d 656) (1981).


author: Phipps, Judge.

text:
    A99A2464.
    BOOKER v. THE STATE.
    (528 SE2d 849)
   Phipps, Judge.

Following the denial of his motion for new trial, Quenton Booker appeals his convictions of burglarizing the residence of Keshia Rodgers and Stacy Styles, committing an aggravated assault upon Styles, committing an armed robbery and aggravated assault upon Ray Collier, and possessing a firearm during the commission of a felony. Ricky McCoy, one of Booker’s accomplices in the crimes, appeared as a key prosecution witness but disavowed his pretrial statements implicating Booker. Then, in an effort to convince the jury to believe those pretrial statements, the prosecution was allowed to establish the accuracy of information McCoy provided to authorities concerning crimes in which Booker had not participated. We find prejudicial error in the admission of this evidence and reverse. Because we find no merit in Booker’s challenges to the sufficiency of the evidence to support his convictions, the case may be retried.

Viewed in the light most favorable to the verdict, the evidence showed the following. Ray Collier is a Miami drug dealer who visited Atlanta with his cousin Samuel Collier in December 1994 and sold cocaine to Booker. On the evening of December 15, either Collier or his cousin was involved in some sort of altercation with Booker. Afterward, the Collier cousins went to an apartment where Rodgers and Styles lived. In short order, Booker, McCoy, and Felipe Wyatt appeared at the apartment and began banging on the door. McCoy testified that his intent was to extract revenge for the incident with Booker or take drugs and money thought to be in Collier’s possession or both.

When no one opened the door, Wyatt kicked it down. As McCoy proceeded to the rear of the apartment, Booker became involved in a physical struggle with Samuel Collier in the kitchen. In the course of the struggle, Collier fell down the stairway leading to the apartment and decamped to a nearby hotel where he called the police. In the meantime, McCoy found Styles hidden in her bedroom closet, prodded her in the stomach with a gun, and asked where “it” was. Ray Collier attempted to escape from another bedroom by jumping from a third-floor apartment window onto a concrete walkway, thereby breaking his ankle. Thus immobilized, he was overtaken by McCoy and Wyatt. They inquired as to the location of drugs or money, and he responded that there was a sum of cash upstairs in his boot. Booker went upstairs and retrieved approximately $300 from the boot. After Booker came downstairs, Ray Collier was shot twice while lying on the ground. Booker, McCoy, and Wyatt then fled the scene, after which Booker and Wyatt split the money.

After the crimes in this case were committed, McCoy was arrested on charges arising from a triple execution-style homicide at a McFrugal rental office on January 6, 1995. He informed police and prosecutors of the identity of the perpetrators of the crimes in this case, the McFrugal murders, and two other homicides. Specifically, McCoy gave statements showing that on December 14, he, Wyatt, and Ralph Henderson were involved in the murder of drug dealer Donald Blair. McCoy also stated that on December 15, he, Booker, and Wyatt perpetrated the crimes involving the Collier cousins, and that Alvin Smith and two others accompanied the three perpetrators to the crime scene in a getaway van. In addition, McCoy informed the authorities of his, Wyatt’s, and Smith’s involvement in the December 30 murder of Donny Holland, another drug dealer. And McCoy related his, Wyatt’s, and Smith’s involvement in the January 6 McFrugal murders.

At trial, McCoy appeared as a State’s witness. Although he acknowledged his and Wyatt’s participation in the December 15 offenses involving Collier, he testified that Booker did not participate. When asked whether his trial testimony was different from his pretrial statements, McCoy variously asserted that he was coerced into making the statements, that he had been lying, that he was promised things that had not materialized, and that he did not make the statements. Over defense objection, the prosecution was then allowed to question McCoy concerning pretrial statements made by him regarding the crimes in this case as well as the other homicides and to show that the information McCoy provided had led to the entry of guilty pleas by all identified culprits except Booker. The prosecution also elicited testimony from McCoy showing his disgruntlement because he had not received a promised prison transfer.

In closing argument, the prosecutor made extensive comments on the numerous crimes in which Booker was not involved, about which McCoy had provided evidence, including the several murders, and asked the jury to “do something about the crime problem” in the county.

1. In an array of assertions, Booker challenges the sufficiency of the evidence to support his convictions.

(a) Booker argues that there is insufficient evidence of armed robbery because the indictment alleged taking money and cocaine from Collier, but he asserts no cocaine was taken, and money was not taken from Collier’s “person” or “immediate presence” as required by OCGA § 16-8-41 (a).

There is no merit in these arguments. An over-inclusive list of items alleged to have been taken in an indictment for armed robbery is not fatal to the validity of the conviction. The evidence authorized the jury to find that the money found in Ray Collier’s personal possessions in the apartment from which he had leaped was within his “immediate presence” within the meaning of OCGA § 16-8-41 (a).

(b) Booker claims that his burglary conviction cannot stand because of an absence of evidence to support the charge that he entered Rodgers and Styles’s apartment with thé intent to commit theft. Booker’s conduct in splitting the money with Wyatt after commission of the crimes authorized the jury to find that Booker possessed the requisite intent.

(c) Booker argues that the evidence showed that only McCoy committed the aggravated assault upon Styles. The evidence authorized the jury to find Booker guilty of this crime on the ground that the act was done by Booker’s co-conspirator in pursuance of the conspiracy.

(d) Booker challenges the sufficiency of the evidence to support his conviction of aggravated assault upon Collier because of a conflict in the evidence as to whether the shooting was done by him or by McCoy and Wyatt. This conflict was for the jury to resolve. Moreover, even if McCoy and Wyatt did the shooting, Booker would be chargeable with the commission of this assault under a conspiracy theory.

(e) Booker challenges the sufficiency of the evidence to support all convictions on the ground that there was inadequate corroboration of accomplice McCoy’s testimony.

Actually, McCoy implicated Booker in the crimes through prior inconsistent statements admissible as substantive evidence rather than in his trial testimony. In any event, testimony given by Rodgers, Styles, and Samuel Collier adequately corroborated Booker’s participation in the crimes (as well as his possession of a weapon).

2. Booker contends that the court erred in allowing the State to elicit testimony about pretrial statements given by McCoy concerning the five homicides in which McCoy and persons other than Booker were involved. The complained-of testimony was given by Douglas, the investigating detective in both this case and the McFrugal murders; Geary, one of the attorneys who prosecuted the McFrugal case; and McCoy. Booker also complains of the prosecuting attorney’s references to these other crimes in closing argument.

The trial court overruled Booker’s objections to the admission of the evidence, based on the prosecutor’s argument that he was seeking to impeach McCoy’s exculpation of Booker at trial by showing the truthfulness of his inculpation of all other criminal perpetrators prior to trial. The purported impeachment of the witness in this manner amounted to an improper attempt to bolster his credibility by showing his veracity in matters irrelevant to the issues being tried in this case. These matters involved independent offenses, consisting of five homicides, which do not satisfy the requirements for admissibility at Booker’s trial. And evidence of these crimes harmed Booker by showing his association with individuals who had committed infamous crimes. The court thus committed prejudicial error by admitting this evidence. It follows that the prosecutor’s closing argument was improper.

3. Also improper was the prosecutor’s reference in closing argument to murder cases he had successfully prosecuted without testimony, obviously, from the victims. These comments were made in response to defense arguments concerning the fact that the victim Collier did not testify. Although the prosecutor certainly could have argued that the law imposes no requirement that the victim testify and given murder cases as an example, his reference to other cases in which he was involved amounted to an improper comment on facts not in evidence. “[T]he law forbids . . . the introduction into a case, by way of argument, of facts not in the record and calculated to prejudice the accused.”

4. In other assertions, we find no merit.

(a) The court’s jury instruction on the corroboration requirement for accomplice testimony contained no expression of opinion whether the evidence showed that McCoy and Booker were accomplices. The court did not err in giving this jury charge as there was evidence so showing.

(b) The court committed no error in allowing certain police officers to testify that while Collier was lying on the ground at the crime scene, he explained what had happened and said that Booker had shot him. The court’s determination that this testimony was admissible under the res gestae exception to the hearsay rule was not clearly erroneous.*

(c) The court did not err in overruling Booker’s hearsay objections to testimony from Douglas and Geary showing McCoy’s prior inconsistent statements concerning Booker’s participation in the crimes in this case. “The prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence . . . and is not subject to a hearsay objection.” The State substantially complied with the requirement that it give McCoy an opportunity to explain or deny the statements. The State never sought to admit any taped or written statement in evidence.

(d) Because the trial court read the indictment verbatim to the jurors and instructed them that the State was required to prove every material allegation of the indictment beyond a reasonable doubt, the court’s recitation of inapplicable parts of the statutes proscribing possession of a firearm during the commission of a crime and aggravated assault did not create a reasonable probability that Booker was convicted of these crimes in a manner other than that alleged in the indictment.

Decided January 26, 2000.

Monique D. Moyse, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

(e) Remaining issues involve matters that either were not preserved by proper objection or are unlikely to recur on retrial.

Judgment reversed.

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

        Denson v. State, 212 Ga. App. 883, 884 (2) (443 SE2d 300) (1994).

       See Welch v. State, 235 Ga. 243, 245 (1) (219 SE2d 151) (1975), and cits.

       See generally Simpson v. State, 265 Ga. 665 (461 SE2d 210) (1995).

       See Short v. State, 234 Ga. App. 633, 634-635 (1) (a) (507 SE2d 514) (1998).

        Knight v. State, 266 Ga. 47, 48 (2) (464 SE2d 201) (1995).

       See generally Givens v. State, 227 Ga. App. 861, 862 (490 SE2d 530) (1997).

       McCoy was, however, subject to impeachment through the State’s showing his prior inconsistent statements concerning Booker’s involvement in the crimes in this case, as well as the fact that McCoy was motivated to recant these statements because he had not received a prison transfer.

       See Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991); Stephens v. State, 261 Ga. 467, 468-469 (6) (405 SE2d 483) (1991).

       (Citations and punctuation omitted.) Simmons v. State, 174 Ga. App. 171, 177 (12) (329 SE2d 312) (1985).

       See generally Ladson v. State, 248 Ga. 470, 477 (11) (285 SE2d 508) (1981); Sims v. State, 266 Ga. 417, 418 (2) (467 SE2d 574) (1996).

       See McKinney v. State, 218 Ga. App. 633, 634 (1) (463 SE2d 136) (1995); see generally Andrews v. State, 249 Ga. 223 (290 SE2d 71) (1982).

       (Citations omitted.) Knight v. State, supra.

       Compare Horne v. State, 204 Ga. App. 81 (1) (418 SE2d 441) (1992).

         Compare Dickey v. State, 240 Ga. 634, 639 (3) (242 SE2d 55) (1978).

       See Harwell v. State, 270 Ga. 765, 766 (1) (512 SE2d 892) (1999), citing Martin v. State, 268 Ga. 682, 685-686 (8) (492 SE2d 225) (1997).


author: Johnson, Chief Judge.

text:
    A99A2352.
    BRANTLEY v. THE STATE.
    (528 SE2d 264)
   Johnson, Chief Judge.

A jury found Chauncey Brantley guilty of aggravated assault and one count of possession of a firearm by a convicted felon and not guilty of another count of possession of a firearm by a convicted felon. We affirm Brantley’s convictions. However, for reasons which follow, we vacate the sentence and remand the case.

1. Viewed in a light most favorable to support the jury’s verdict, the evidence shows that Brantley shot the victim two times. Both the victim and two witnesses identified Brantley as the shooter. There was also testimony that Brantley told the victim’s friends he had just shot somebody.

After the shooting, the victim and his friend drove to the victim’s house. As they were leaving the victim’s house to go to the hospital, they saw Brantley holding a gun as the car in which he was riding drove by the victim’s house.

When the defendant appeals a criminal conviction, the evidence must be construed in the light most favorable to support the jury’s verdict, and the defendant no longer enjoys the presumption of innocence; moreover, the appellate court does not weigh the evidence or judge the credibility of the witnesses. “Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve.”

(a) Brantley argues that the evidence was insufficient to support his conviction for aggravated assault because the evidence established at trial was contradictory and conflicting. Specifically, there were conflicts regarding the number of shots fired, who was involved in the fight, and whether the victim actually knew who shot him. However, these types of credibility determinations are clearly within the province of the jury, and our role is limited to determining the sufficiency of the evidence. Here, there was clear evidence that Brantley shot the victim. The evidence was sufficient for a rational trier of fact to find Brantley guilty beyond a reasonable doubt of aggravated assault.

(b) Brantley also argues that the evidence was insufficient to support his conviction for possession of a firearm by a convicted felon because the state failed to prove he was a convicted felon. Although Brantley did not object to the state’s offer of proof, did not move for a directed verdict, and failed to raise this issue in the hearing on his motion for new trial, it is well settled that a challenge to the sufficiency of the evidence can be raised for the first time on appeal.

In attempting to prove Brantley was a convicted felon, the state admitted certified copies of a criminal proceeding against Brantley and a co-defendant for armed robbery, aggravated assault, and giving a false name to a law enforcement officer. The document clearly shows that the co-defendant pled guilty to certain counts. However, the document does not clearly show that Brantley pled guilty to any of the charges. On one side of the document, the co-defendant’s name is crossed off and Brantley’s name is written above it, followed by a line stating that he pleads guilty to robbery and giving a false name. Yet, Brantley’s signature does not appear on the form. Instead, his co-defendant signed the form twice.

The state claims this is merely a clerical error and that the transcript of Brantley’s plea hearing will show that he did, in fact, plead guilty. Moreover, while Brantley argues for the first time on appeal that the state failed to prove he was a convicted felon with this exhibit, he has never claimed during the trial or here on appeal that he did not plead guilty to the charges at issue.

Based on the circumstances presented to us, we hereby remand this case for a hearing on the sole issue of whether Brantley pled guilty to any of the specified criminal charges on July 20,1994. If the trial court determines that Brantley never pled guilty, then his conviction for possession of a firearm by a convicted felon must be reversed. If, however, the evidence shows that Brantley pled guilty to at least one of the felony charges, his conviction here must be affirmed.

2. Brantley’s sentence shows that he was sentenced as a recidivist under OCGA § 17-10-7. It appears from the sentencing sheet that he was sentenced as a recidivist under OCGA § 17-10-7 (a), allowing for a probated sentence, since the trial judge sentenced him to 25 years but indicated he was to actually serve only 15 years in prison and the remainder on probation. However, the sentencing sheet does not clearly indicate whether Brantley was sentenced under OCGA § 17-10-7 (a) or (c), which does not allow for parole. Therefore, we will address Brantley’s argument that he was improperly sentenced as a recidivist under OCGA § 17-10-7 (c).

A defendant may be sentenced as a recidivist under OCGA § 17-10-7 (c) if he has been convicted of three felonies. The record in the present case shows that Brantley was given first offender status in DeKalb County on June 25, 1992, after he pled guilty to robbery. On October 1, 1992, he pled guilty in Fulton County to theft by receiving stolen property and was sentenced to two years to run concurrently with his sentence in DeKalb County. On October 15, 1992, he pled guilty in DeKalb County to theft by receiving stolen property and was sentenced to two years of probation to run concurrently with his probation for robbery.

The alleged conviction for armed robbery, aggravated assault, and giving a false name to a law enforcement officer, discussed in Division 1 (b), was used as an essential element of the possession of a firearm by a convicted felon count. It was not used to support a recidivist sentence. However, the state argues that Brantley’s first offender status was revoked by operation of law because this felony was committed during the three-year first offender probationary period. We disagree.

There is no provision for revocation of first offender status by operation of law. In fact, the Supreme Court has expressly held that “[b]y allowing [a defendant] to complete his three-year probationary period without initiating any revocation proceedings against him, the State cannot urge that he did not fulfill the terms of his probation.” Without a showing that the state initiated revocation, proceedings against Brantley which terminated his first offender status, the first offender plea cannot be used to support recidivist punishment.

There is no evidence in the record that the state initiated revocation proceedings to terminate Brantley’s first offender status or that Brantley did not fully complete his three-year probationary period to fulfill his first offender terms. Thus, Brantley could not be sentenced as a recidivist under OCGA § 17-10-7 (c) because only two prior convictions supported this sentence. Brantley could, however, be sentenced as a recidivist under OCGA § 17-10-7 (a), which allows for a probated sentence and requires only one prior conviction. Therefore, this case is remanded with instructions that the trial court resentence Brantley, clearly indicating it is sentencing Brantley as a recidivist under OCGA § 17-10-7 (a).

3. Brantley’s claim that his trial counsel provided ineffective assistance of counsel is without merit. To establish ineffectiveness, Brantley must prove both that his trial counsel’s performance was deficient and that but for the deficient performance there was a reasonable probability the result of the trial would have been different. Brantley’s burden is high because his counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Moreover, Brantley’s claim was presented to and ruled upon by the trial court, whose finding of effectiveness must be upheld unless clearly erroneous.

At the outset, we note that trial counsel secured an acquittal of one of the possession of a firearm by a convicted felon charges. This circumstance strongly supports the conclusion that the assistance actually rendered by Brantley’s trial counsel fell within that broad range of reasonably effective assistance which members of the bar in good standing are presumed to render.*

(a) Trial counsel’s failure to conduct fingerprint tests of shell casings found at the crime scene did not constitute ineffective assistance of counsel. The victim and two witnesses testified that Brantley fired the weapon. Thus, it is not reasonably probable that the outcome of the case would have been different even had the shell casings been handled by someone other than Brantley.

(b) Trial counsel’s failure to properly subpoena a detective was not ineffective assistance of counsel. According to Brantley, the detective would have testified that on the day of the shooting one of the witnesses told him that another individual had fired the gun. This evidence, however, was already before the jury. The victim’s mother testified that the witness told her that both Brantley and another individual had fired the gun. She further' testified that she gave this information to the detective. We cannot say that but for any error in failing to subpoena the detective, the outcome of the trial would have been different.

Decided January 18, 2000 —

Reconsideration denied January 27, 2000

Gerard B. Kleinrock, for appellant.

J. Tom Morgan, District Attorney, Maria Murder-Ashley, Gregory J. Lohmeier, Assistant District Attorneys, for appellee.

(c) Trial counsel’s failure to request a self-defense jury instruction does not constitute ineffective assistance of counsel because the evidence did not raise self-defense. Viewed in a light most favorable to support the verdict, the evidence showed that Brantley was not involved in the fight between the victim and two other individuals. It is undisputed that the victim did not attack or assault Brantley. It is also undisputed that the victim was unarmed.

The defense theory in the case was that Brantley did not shoot anyone and that he was erroneously identified as the shooter. In light of the defense theory and the posture of the evidence, trial counsel’s failure to request a self-defense charge did not constitute ineffective assistance of counsel.

Judgment affirmed in part, sentence vacated and case remanded.

McMurray, P. J, and Phipps, J., concur.

        Ringo v. State, 236 Ga. App. 38, 39 (510 SE2d 893) (1999).

       Id.

        Murray v. State, 239 Ga. App. 659, 662 (522 SE2d 48) (1999).

       See generally id.; Anderson v. State, 238 Ga. App. 866, 870 (519 SE2d 463) (1999).

       See Jones v. State, 219 Ga. App. 780-781 (1) (466 SE2d 667) (1996).

       (Citations omitted.) State v. Mills, 268 Ga. 873, 874 (495 SE2d 1) (1998).

       See Scott v. State, 216 Ga. App. 692, 694 (4) (455 SE2d 609) (1995).

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Millwood v. State, 237 Ga. App. 748, 749 (2) (a) (516 SE2d 799) (1999).

       Id.

       Id.

        Bradford v. State, 221 Ga. App. 232, 235 (3) (471 SE2d 248) (1996).


text:
    A99A1931.
    JOHNSON v. THE STATE.
    (528 SE2d 861)
   Johnson, Chief Judge.

Arthur Lee Johnson was indicted for the offense of burglary. The State filed and served a notice to seek recidivist punishment. Johnson subsequently entered a nonnegotiated plea of guilty to the charge and was sentenced to ten years in confinement. Johnson filed a motion to withdraw his plea, which the trial court denied. Johnson appeals the denial of his motion to withdraw his plea, arguing that his plea was not freely and voluntarily entered and that his counsel was ineffective. Because we find no merit in his arguments, we affirm.

The record from the plea hearing shows a factual basis for the conviction. On the date of the offense, Johnson was working at a property adjacent to the victim’s home. He left the house but later returned to the victim’s home in her absence, opened the window, entered and took various items of the victim’s property. Johnson later admitted to his employer, the victim and a detective that he committed the crime. He sold the stolen items for $110.

At the plea and sentencing hearing on September 30, 1997, Johnson’s counsel argued, in support of a plea for leniency, that after his arrest Johnson had been diagnosed with a rare type of skin cancer. He informed the trial court that he had received a letter from Johnson’s treating physician, dated January 1997, which indicated that Johnson had only about one year to live.

The prosecutor informed the trial court of Johnson’s recidivist status. The sentencing range for burglary under the circumstances is five to twenty years. There was no negotiated recommendation regarding the sentence. The trial court sentenced Johnson to serve ten years. After the trial court announced the sentence, Johnson’s attorney orally moved to withdraw the guilty plea. When this motion was denied, he filed a written motion to withdraw the plea, which was also denied.

1. Johnson contends his plea was not freely and voluntarily entered because (a) he was not informed of the minimum sentence he could receive and (b) his attorney failed to inform him that his plea could not be withdrawn after the sentence was pronounced. Both arguments lack merit.

(a) The record indicates that Johnson was informed of the minimum sentence he faced prior to sentencing. As the Uniform Superior Court Rules contemplate, information regarding a mandatory minimum sentence “may be developed by questions from the judge, the district attorney or the defense attorney, or a combination of any of these.” USCR 33.8 (C) (3). After hearing from both the state and Johnson, the trial court reaffirmed that the maximum punishment based on the crime and the recidivist statute was 20 years. The trial court then asked what the range would be, and the state responded “it has to be a minimum of five given the amount of burglaries.” After asking Johnson an additional question regarding his hospitalization, the trial court sentenced Johnson to serve ten years. Based on the transcript, we conclude that Johnson was clearly informed of both the maximum and the minimum sentence he could receive before his sentence was entered. A defendant can withdraw his plea at any time before his sentence is pronounced. See OCGA § 17-7-93 (b); see also Isaac v. State, 237 Ga. App. 723, 727 (3) (516 SE2d 575) (1999). Johnson could have withdrawn his plea before the trial court pronounced his sentence had he found the minimum sentence to be unacceptable.

Moreover, the record as a whole affirmatively shows that Johnson’s plea was knowing and voluntary. See Moore v. State, 225 Ga. App. 860-861 (1) (485 SE2d 552) (1997). At the plea hearing, Johnson told the trial court he had sufficient time to consult with his attorney, he was satisfied with his attorney’s services, and he knew he was waiving the presumption of innocence by pleading guilty. He acknowledged that he had been informed of the rights he would waive by pleading guilty, including the right to a jury trial, the right to have assistance of counsel at trial, the right to call witnesses, the right to testify in his own behalf if he so desired, the right to cross-examine adverse witnesses, the right to appeal from a conviction, and the right to have an attorney represent him on appeal. He was also informed that the burden of proof was upon the state to prove each element of the crime beyond a reasonable doubt. Johnson was informed that as a recidivist he could be sentenced to a maximum of 20 years and, because he was entering a nonnegotiated plea, the judge would decide what sentence to impose. When asked whether he was under the influence of any drugs or alcohol and whether anybody had promised him anything or forced him to plead guilty, he responded “no,” and when asked whether his plea was being freely and voluntarily entered, he answered “yes.” After Johnson had been informed of all these rights, the district attorney made a proffer of the facts the evidence would show if the case went to trial, thus establishing the factual basis for the plea. Under these circumstances, the trial court did not abuse its discretion by denying Johnson’s motion to withdraw his guilty plea on the ground that his plea was not freely and voluntarily entered. See Isaac, supra; Moore, supra.

(b) Johnson also complains that his trial counsel failed to inform him that his plea could not be withdrawn after the trial court pronounced his sentence. This argument provides no basis for reversing Johnson’s conviction. Though informing a defendant that he does not have a right to withdraw his guilty plea after his sentence is pronounced is a better practice because it makes his situation even more clear, there is no requirement that he be so informed. USCR 33.10 and 33.11 (D) both relate to the requirement that the trial court inform a defendant that he has a right to withdraw his guilty plea before sentence is pronounced if the trial court intends to reject a negotiated plea agreement. This rule reflects the recognized right of all defendants to withdraw guilty pleas at any time before the sentence is pronounced. See OCGA § 17-7-93 (b); see also Isaac, supra. Unless he has made a showing that it is necessary for the court to allow him to withdraw his plea to correct a manifest injustice, a defendant may not withdraw his plea as a matter of right after his sentence is pronounced. See Stevens v. State, 202 Ga. App. 473 (414 SE2d 702) (1992); see also USCR 33.12 (A), (B).

2. Johnson contends his trial counsel was ineffective because he advised Johnson that, when a case was on a trial calendar, it was the trial court’s practice to allow the withdrawal of a plea after the court had pronounced the sentence. Johnson’s trial counsel admits his statement was ill-advised. At the motion for new trial hearing, both Johnson and his attorney said that Johnson relied on this statement in entering his guilty plea. Nevertheless, trial counsel’s statement did not amount to ineffective assistance of counsel.

Decided January 27, 2000.

Thomas R. Moran, for appellant.

Paul L. Howard, Jr., District Attorney, George W. King Snyder, Jr., Assistant District Attorney, for appellee.

To challenge a guilty plea based on ineffectiveness of trial counsel, Johnson must show that, but for his counsel’s deficiency, he would have insisted on going to trial and would not have pled guilty. Isaac, supra at 728 (4). Johnson makes no assertion in his brief on appeal that he would not have pled guilty but for his counsel’s statement. Moreover, even if Johnson had made such a claim in the trial court, the trial court was authorized to disregard his claim in light of evidence that Johnson pled guilty because he knew he could not prevail at trial. At the plea hearing, Johnson’s trial counsel informed the court: “I explained to him, gone over with him the facts what the state I think would prove. I told him, you know, I mean, with the similar transactions that the state has that I didn’t really see any reason to try the case.” The trial court did not abusé its discretion by refusing to allow Johnson to withdraw his guilty plea on this basis.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.


author: Ellington, Judge.

text:
    A99A1718.
    BURRITT v. MEDIA MARKETING SERVICES, INC.
    (527 SE2d 890)
   Ellington, Judge.

This is the second appearance of this case before us. In Burritt v. Media Marketing Svcs., 204 Ga. App. 848 (420 SE2d 792) (1992), we affirmed in part and reversed in part the trial court’s grant of summary judgment to Media Marketing, a company for which Burritt sold vacation packages as an independent contractor. Although we upheld the grant of summary judgment as to Burritt’s wrongful termination, fraud, and tortious interference claims, we found that material issues of fact remained as to whether Media Marketing breached an agreement to give Burritt seven days written notice of termination and whether Burritt was consequently entitled to commissions on sales made during her employment or to a quantum meruit recovery for the value of her services. Id. The jury resolved these remaining issues in Burritt’s favor, awarding her $7,595 in damages.

Because the judgment was for less than $10,000, Burritt filed an application for discretionary appeal, OCGA § 5-6-35 (a), which we granted. Burritt argues the trial court erred in excluding evidence, in denying her motion for a directed verdict, in giving certain jury charges, and in refusing to award appellate costs following this Court’s partial reversal of the grant of summary judgment. For the following reasons, we affirm the judgment in favor of Burritt but reverse the trial court’s order denying appellate costs.

1. Burritt argues that the trial court erred in granting Media Marketing’s motion in limine to exclude evidence of the reasons for her termination. Burritt, who did not make any claim of gender discrimination, sought to introduce evidence that she was fired because she is female. The trial court ruled, and we affirmed, that Burritt’s contract was terminable at will. Burritt v. Media Marketing Svcs., 204 Ga. App. at 848 (1). Given this fact, evidence regarding any improper motive for Burritt’s discharge is irrelevant and presents no issue for jury resolution. Winters v. Pund, 179 Ga. App. 349, 353 (346 SE2d 124) (1986), overruled on other grounds, Wickliffe v. Wickliffe Co., 227 Ga. App. 432, 434 (1) (489 SE2d 153) (1997).

Further, Media Marketing did not make the reasons for Burritt’s termination an issue in the case. Although Media Marketing presented evidence that Burritt breached a nondisclosure provision of her contract, it did not argue that she was fired because of the breach. Rather, it argued that Burritt’s violation of the nondisclosure provision relieved it of its contractual obligation to give Burritt seven days notice prior to termination. Consequently, evidence of Media Marketing’s improper motives was not relevant for either impeachment or rebuttal purposes. “A witness may not be impeached by contradictory statements previously made by him as to immaterial matters not relevant to his testimony and to the case.” (Citations, punctuation and emphasis omitted.) England v. Ga.-Fla. Co., 198 Ga. App. 704, 707 (5) (402 SE2d 783) (1991). The trial court did not abuse its discretion in excluding evidence of Media Marketing’s motives for Burritt’s discharge.

2. Burritt argues the trial court erred in refusing to direct a verdict in her favor on the question of whether she violated the nondisclosure provision of her contract with Media Marketing.

A directed verdict is proper only where there is no conflict in thé evidence as to any material issue and the evidence introduced with all reasonable inferences therefrom demands a particular verdict. On appeal, the standard of review of a trial court’s denial of a motion for directed verdict is the “any evidence” standard.

(Citations omitted.) Jet Food Stores v. Kicklighter, 226 Ga. App. 552-553 (1) (487 SE2d 120) (1997). Viewed in this light, the record reveals that Burritt, while employed by Media Marketing, gave the name of a Media Marketing client to a competitor, an act she testified may have been wrongful. The contract contained an agreement not to disclose confidential company information which arguably prohibited Burritt from giving the name of a client to a competitor. Burritt argues that the contract provision does not apply. However, whether Burritt was still operating under the contract at the time of the disclosure, whether the states comprising her contract territory had changed during the course of her employment, and whether client names were secret within the meaning of the contract were all factual issues for the jury to resolve. See Bowman v. Stephens, 232 Ga. App. 326, 327 (501 SE2d 245) (1998). Therefore, the trial court properly denied Burritt’s motion for a directed verdict.

3. Burritt argues the trial court erred with respect to her written Request to Charge Nos. 25, 27-34, and 49. She contends the court erred in refusing to give Charge Nos. 25 and 27. When the trial court asked if she had any exceptions to the charge as given, however, she failed to voice her objection to the court’s refusal to give these charges. Therefore, she has waived her right to object to the court’s refusal to give these charges on appeal. Southeastern &c. Ins. Co. v. Hotle, 222 Ga. App. 161, 166 (473 SE2d 256) (1996); OCGA § 5-5-24 (a). Burritt did except to the court’s refusal to give her Request to Charge Nos. 28-32, all of which applied to claims of sexual discrimination. Because Burritt made no claim of sexual discrimination, the charges were irrelevant to the issues tried. “A request to charge which is irrelevant to all issues to be determined by the jury may be rejected.” (Punctuation omitted.) Robinson v. State, 182 Ga. App. 423, 428 (21) (356 SE2d 55) (1987). Request to Charge No. 33, with the exception of a phrase that applied to a claim of sexual discrimination, was given. Request to Charge No. 34, which instructed the jury to ignore the contract’s forfeiture provision under certain circumstances, assumed facts that either were not supported by the evidence or were contrary to it. Refusing to give a charge which is not adjusted to the evidence is not error. Berry v. State, 262 Ga. 614, 615-616 (4) (422 SE2d 861) (1992). Finally, Request to Charge No. 49 is not contained in the record, nor is it a part of the trial transcript. To review this allegation of error, it is essential that we have timely access, in either the record or the transcript, to the appellant’s written request to charge. “When a portion of the record is not before this court which is necessary for our determination of one or more of the appellate issues raised, an affirmance as to those issues must result.” (Punctuation omitted.) Ogles v. State, 218 Ga. App. 92 (1) (a) (460 SE2d 866) (1995). Accordingly, the trial court did not err in refusing to give Request to Charge No. 49.

Decided January 12, 2000 —

Reconsideration denied January 28,2000

Robert M. Goldberg, for appellant.

Smith, Helms, Mulliss & Moore, Kenan G. Loomis, for appellee.

4. In her final assertion of error, Burritt argues the trial court erred in denying her motion for appellate costs following this Court’s partial reversal of the trial court’s grant of summary judgment. We agree. OCGA § 5-6-5 provides: “If there is a judgment of reversal, the appellant shall be entitled to a judgment for the amount of the costs in the appellate court against the appellee as soon as the remittitur is returned to the court below.” This statute “plainly provides that an appellant who obtains a reversal is entitled to the costs of appeal.” Gwinnett Property N.V. v. G+H Montage GmbH, 215 Ga. App. 889, 896 (5) (453 SE2d 52) (1994). Media Marketing argues that although Burritt obtained a reversal, it was not a substantial modification of the judgment entitling her to fees. See Hartley v. Hartley, 212 Ga. 62 (1) (90 SE2d 555) (1955). We disagree. Although we affirmed the trial court’s grant of summary judgment on most of Burritt’s claims, the reversal she obtained nevertheless substantially modified the judgment because it allowed her suit to proceed to trial. Because Burritt did obtain this substantial modification as a result of her efforts on appeal, she is entitled to appellate costs under OCGA § 5-6-5. Id. Therefore, we reverse the trial court’s order denying appellate costs and instruct the court to assess costs of that appeal against Media Marketing.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Ruffin, J., concur.


author: Blackburn, Presiding Judge.

text:
    A99A2511.
    A99A2512.
    OVREVIK v. OVREVIK et al. OVREVIK et al. v. OVREVIK.
    (527 SE2d 586)
   Blackburn, Presiding Judge.

These related cases concern the construction of a revocable inter vivos trust (the Trust) established by Sverre L. Ovrevik and Marie W. Ovrevik (Settlors) to support them during their lifetime and distribute property remaining after their deaths to their three children, Glenn S. Ovrevik, Alice M. Ovrevik and Russell L. Ovrevik, and their grandchildren. Since the deaths of Sverre and Marie Ovrevik, entitlement to the Trust property has been under contention.

Glenn Ovrevik, in his capacity as successor trustee of the Trust, filed a declaratory judgment action seeking direction regarding the discharge of his fiduciary responsibilities. Russell Ovrevik answered and filed a motion for partial summary judgment asking the trial court to: terminate the Trust; order the trustee to grant him certain realty accorded him under the Trust; order the trustee to account for and distribute his share of his parents’ personal belongings; direct the trustee to disburse any funds that might remain; and require Alice Ovrevik and the trustee to each bear one-half responsibility for any expenses of the Trust that cannot be covered by Trust funds. The trial court granted partial summary judgment to Russell, and both Glenn and Alice appeal from that order.

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

Brown v. Ohio Cas. Ins. Co., 239 Ga. App. 251 (519 SE2d 726) (1999).

So viewed, the record shows that the Trust was created for the use and benefit of Sverre Ovrevik and Marie Ovrevik. After the death of both Settlors, the declaration of Trust directed that the Trust property be divided as described in the Trust instrument.

Among other property, Glenn Ovrevik was to receive a home and acreage located in Fayette County, subject to a recorded lien of $40,500 in favor of his sister, Alice Ovrevik. Russell Ovrevik, among other property, was likewise to receive acreage located in Douglas County, subject to a $27,000 lien in favor of Alice. In addition to the liens, she was to receive all certificates of deposit, including interest, held in Barnett Bank in Fayetteville. Furthermore, Glenn and Alice were given “joint responsibility ... for the equal adjustment of one-half each of any surplus or shortage of funds in the final closing of the [Trust].”

Case No. A99A2511

In Case No. A99A2511, Alice Ovrevik claims entitlement to 21 percent of the fair market value of the realty owned by the Trust, rather than the fixed monetary amount of the liens described in the declaration of trust. Alice Ovrevik appeals from the trial court’s order which granted partial summary judgment to Russell Ovrevik, contending that the trial court erred by finding the Trust was unambiguous, by failing to resolve the ambiguities therein, by failing to properly determine the Settlors’ intent and by determining that the Settlors’ intent was to grant her fixed dollar liens on certain real estate rather than proportionate liens. We find that the language of the Trust instrument is unambiguous and expresses the Settlors’ intent that Alice receive liens in a fixed amount.

1. In construing an express trust, we look first and foremost to the language therein and interpret that language to effectuate the intent of the settlors. Ferst v. Ferst, 208 Ga. App. 846, 847 (432 SE2d 227) (1993). We turn to parol evidence only if the trust instrument is ambiguous, and we find no ambiguity here. Each provision of the Trust which distributes the realty references only a fixed dollar amount. In the description of distribution to Glenn Ovrevik the Trust states “less a recorded lien of $40,500.” The distribution to Alice Ovrevik states “[o]wner of lien, value $40,500” and “[o]wner of lien, value $27,000.” The distribution to Russell Ovrevik states “less recorded lien of $27,000.” Part 7, Attachment 1, Amendment 3.

Alice Ovrevik’s argument that the Settlors intended for her to receive 21 percent of the fair market value of the realty is not supported by the Trust instrument. The only reference to such a percentage occurs in the context of a contingency distribution in the event that there was a reduction in funds from the time the Trust was established. That circumstance did not occur here; in fact, it is undisputed that the value has increased.

We do not find an intent to change the distribution in the event that the market value of the property increased, as Alice Ovrevik would have us do. The Settlors contemplated only a change in the distribution if there was a reduction in funds: “The inheritance and donations listed herein may be subject to possible future changes as outlined in Part 7, Amendment #4, Item #2 and Item #8, a, b, and c [(the reduction contingency)] and may thereby delete any or part of the inheritance and donations.” To the contrary, if the trustee found there was no reduction in funds, the trustee was to “continue distribution of inheritance and donations as outlined.” Further, absent any reduction in available funds, it was the Settlors’ “hope that life will allow you to follow our original plan.”

The trial court properly determined that the Trust unambiguously set forth the Settlors’ intent for Alice Ovrevik to receive liens in a fixed amount from the distribution of the Trust property.

Case No. A99A2512

Glenn Ovrevik also appeals from the grant of summary judgment to Russell Ovrevik, contending that the trial court erred by: (1) failing to apply OCGA §§ 53-12-51 and 53-12-52 (c), (d); (2) failing to properly construe the Trust instrument; (3) misconstruing the purpose of the Trust; (4) failing to properly order distribution of the Trust property; and (5) finding Glenn Ovrevik and Alice Ovrevik jointly responsible for any shortage in the Trust funds. For the reasons discussed below, we affirm in part and vacate and remand in part.

2. In his first and second assertions of error, Glenn Ovrevik argues that the Settlors created a deed of beneficial interest under OCGA § 53-12-50 et seq., a business trust. However, to qualify as a business trust under the statute, the deed creating the estate

shall provide for the improvement or development of the property covered thereby or for the acquisition of the property and the trustee or trustees therein named and their successors shall have some active duty to perform in and about the trust property or the management or control of the same.

OCGA § 53-12-51. We find no language in the Trust instrument expressing an intent to create a trust under OCGA § 53-12-50 et seq., and consequently the Trust is not governed by that statute.

3. In his third and fourth assertions of error, Glenn Ovrevik contends that the trial court misconstrued the purpose of the Trust and, as a result, erroneously found that the purpose of the Trust had been fulfilled and terminated the Trust. We disagree.

The Trust plainly states it was for the “use and benefit of: Sverre L. Ovrevik and Marie W. Ovrevik.” Upon the death of one of the beneficiaries, the Trust existed for the use and benefit of the surviving spouse. After both Settlors had died, the Trust property was to be divided. As the sole purpose of the Trust was for the use and benefit of Sverre Ovrevik and Marie Ovrevik until their deaths, the trial court properly determined this purpose fulfilled after the death of Sverre Ovrevik, the last surviving beneficiary. See Ivey v. Ivey, 266 Ga. 143, 145-146 (5) (465 SE2d 434) (1996).

Although Glenn Ovrevik contends the purpose of the Trust has not been fulfilled, he points only to his failure to distribute certain Trust property. Distribution of the Trust property is an entirely separate matter from the fulfillment of the purpose. Having determined that the purpose of the Trust was fulfilled, the trial court properly terminated the Trust and ordered distribution of the Trust property in accordance with the terms of the Trust. OCGA § 53-12-152 (a);

4. In his fifth assertion of error, Glenn Ovrevik contends that the order directing the distribution of the Trust property under OCGA § 53-12-152 (a) is incorrect with respect to the Douglas County property because the order did not conform to the Settlors’ intent.

The order shall specify the appropriate share of each beneficiary who is to share in the proceeds of the trust, taking into account the interest of any income beneficiaries and remainder beneficiaries, so as to conform as nearly as possible to the intention of the grantor, donor, settlor, or testator.

OCGA § 53-12-152 (a) (3).

The trial court ordered the trustee to “deed the Douglas County property in question to Defendants Russell L. Ovrevik [and his three children] within forty-five (45) days of this Order, subject to a lien in favor of Alice Ovrevik in the amount of $27,000.”

The Trust directed the distribution of the Douglas County property to Russell Ovrevik

less recorded lien of $27,000.00 to be affixed to the title of said property effective the date of the death of the last surviving grantor. There will be no interest on the lien for the first two year period following the date of said death. After that period four percent per annum interest on the lien will be charged. ... If the property is sold the lien must be paid off in full at closing of the sale. If the property is not sold the lien must be paid off in full not later than four years from said date of death unless otherwise agreed upon in writing. . . . When the lien is paid off the remaining value of the property shall be divided either physically or if sold in dollar values among Russell’s three children and Russell as determined by Russell.

(Emphasis supplied.)

The Trust unambiguously expresses the intent that Russell Ovrevik receive the property until the lien is paid off. However, we find the emphasized language ambiguous with regard to the intended distribution to Russell and/or his children after the lien is paid off. On the one hand, the phrase “as determined by Russell” may give him the discretion to decide whether some or all of his children receive a share of the property. On the other hand, it may give Russell the discretion to decide whether the property is divided physically or sold. Or, it may give him the discretion to decide both the beneficiaries and the form of distribution. Since we cannot determine the Settlors’ intent on this matter, we cannot determine whether the trial court’s order conformed to that intent. Therefore, we vacate that portion of the trial court’s order directing distribution of the Douglas County property to Russell Ovrevik and his three children. The case is remanded for the trial court to hear parol evidence to explain the ambiguity and determine the Settlors’ intended distribution, after the lien is paid off, to Russell Ovrevik and/or his children. OCGA § 53-12-27.

Decided January 5, 2000 —

Reconsiderations denied January 28,2000.

Ballard & Ballard, Charles T. Ballard, for Alice M. Ovrevik.

Glenn S. Ovrevik, pro se.

Beck, Owen & Murray, James R. Fortune, Jr., for Glenn S. Ovrevik et al.

5. In his sixth assertion of error, Glenn Ovrevik contends the trial court erred by finding him and his sister Alice Ovrevik liable for any debts incurred by the Trust. We agree.

In provisions addressing the distribution of the Trust property, the Trust provided that Glenn Ovrevik had “|j]oint responsibility with his sister Alice Ovrevik for the equal adjustment of one-half each of any surplus or shortage of funds in the final closing of the [Trust].” The Trust provided the same for Alice. The trial court ordered that “to the extent that any debts or expenses now exist in excess of remaining Trust funds [Glenn and Alice] shall share joint responsibility for said amounts.”

We find these provisions ambiguous because, although they could be interpreted as the trial court ordered, we know of no authority by which a settlor can distribute the debts incurred by the trust to a beneficiary. A trust is responsible for its own expenses. Even a trustee is not generally personally liable on the debts of a trust, OCGA § 53-12-199 (b), and neither a trustee nor a beneficiary is personally liable on a judgment entered against a trust. Furthermore, in light of the Settlors’ great effort to address distribution of the Trust property in the event of a shortage of Trust funds, the provisions could also be read to mean that Glenn’s and Alice’s shares of Trust property should be abated in the payment of debt in the unlikely event of a debt. Thus, we vacate that portion of the trial court’s order finding Glenn Ovrevik and Alice Ovrevik liable for the debts of the Trust and remand for the trial court to hear parol evidence to explain the ambiguity and determine the Settlors’ intent.

Judgment affirmed in Case No. A99A2511. Judgment affirmed in part, vacated and remanded in part in Case No. A99A2512.

Eldridge and Barnes, JJ, concur.

Douglas B. Warner, Mark D. Oldenburg, for Russell L. Ovrevik et al.


author: Eldridge, Judge.

text:
    A00A0037.
    DAVIS v. THE STATE.
    (527 SE2d 602)
   Eldridge, Judge.

Gerald Davis appeals from the denial of his motion to file an out-of-time appeal or an extraordinary motion for new trial. We affirm.

On December 10, 1996, a jury convicted Davis of robbery and theft by taking. The conviction was not appealed. Davis filed a pro se motion for an out-of-time appeal/extraordinary motion for new trial in March 1997, and the trial court conducted a hearing. The trial court subsequently denied the motion, and this appeal follows. Held:

1. Davis claims that the trial court wrongfully denied his motion to file an out-of-time appeal by deciding the request on a “technicality.” This claim has no merit.

An out-of-time appeal is appropriate where due to the ineffective assistance of counsel, no appeal has been taken. However, an attorney renders effective assistance of counsel with regard to the decision whether to appeal when he advises his client of his appellate rights, and does not preempt his client’s decision to appeal. Neither the sixth amendment nor the fourteenth amendment requires that the record reflect that the defendant made a knowing and intelligent decision not to appeal beforé he can be precluded from appellate review. The grant or denial of a motion for an out-of-time appeal is within the discretion of the trial court, and its decision will not be reversed absent abuse of such discretion.

(Citations and punctuation omitted.) Lunsford v. State, 237 Ga. App. 696-697 (515 SE2d 198) (1999). See also Penrod v. State, 233 Ga. App. 532-533 (504 SE2d 757) (1998).

In this case, Davis testified at the motion hearing that he asked his trial attorney to appeal the conviction following sentencing. He claimed that the attorney promised to meet with him later to discuss the appeal but failed to do so.

However, the attorney testified that he approached Davis immediately after sentencing and told Davis

Decided January 7, 2000 —

Reconsideration denied January 28, 2000.

Nicholas E. White, for appellant.

Gerald Davis, pro se.

Timothy G. Vaughn, District Attorney, for appellee.

that he had a right to appeal in thirty days and that I was there to do his appeal if he so wanted me to do his appeal. . . . Right there where we were sitting I bent over and asked him, expecting him to say yes as they always do, and he told me no he did not want me to do his appeal, that his family was going to hire a real lawyer. . . . He discharged me, yes. In no uncertain terms he discharged me.

After that point, the attorney did not consider himself Davis’ lawyer and, accordingly, did not file an appeal.

After the hearing, the trial court found that the attorney advised Davis of his right to appeal but that Davis “elected to discharge [the attorney] rather than have him file a motion for new trial or an appeal.” The trial court was authorized to believe the attorney’s testimony over that of Davis and did so. There was no abuse of discretion in the trial court’s denial of Davis’ motion for an out-of-time appeal. Lunsford v. State, supra at 697 (1); Penrod v. State, supra at 534.

2. For the same reasons as in Division 1, supra, there was no abuse of discretion in the trial court’s denial of Davis’ extraordinary motion for new trial. Lunsford v. State, supra at 697 (2); see also OCGA § 5-5-41 (a).

Judgment affirmed.

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

       The convoluted procedural history of this appeal is not relevant to the issues presented herein.


text:
    A00A0095.
    BARONE v. LAW et al.
    (527 SE2d 898)
   Eldridge, Judge.

Defendant-appellant Margaret Barone appeals from the Cherokee County State Court’s entry of judgment from a jury verdict against her in this personal injury case. We reverse the trial court’s judgment because we find that the trial court wrongfully excluded admissible, material evidence of causation and impeachment on the basis that it was hearsay.

Plaintiff-appellee Denise Law sued Barone after Barone’s car collided with Law’s in October 1995. Law claimed that Barone’s negligence caused the collision and that the collision caused her to suffer from back, neck, and leg pain. During her deposition and again at trial, Law denied that she suffered from back, neck, or leg pain prior to October 1995.

On cross-examination, Barone attempted to impeach Law’s testimony by introducing certified copies of Law’s medical records. Some of the records showed statements by Law to physicians during her treatment for pain between October 1995 and December 1998. Another record was a copy of a medical history that apparently was completed by Law, herself, prior to treatment. All of the records were redacted prior to trial to remove any medical opinions, conclusions, diagnoses, or prognoses by the treating physicians or others. The medical records showed that she had suffered from back, neck, and leg pain or injuries prior to October 1995, including a “severe crick” in her neck one month prior to the collision. According to one record, Law reported that she had suffered from low back pain for over thirteen years. The records also showed that Law reported that she had suffered additional, unrelated injuries to her back and neck in the years following the collision, including injuries from lifting heavy weights.

The trial court, however, excluded the medical records on the basis that they were inadmissible hearsay. After the medical records were excluded, Law again denied on cross-examination that she had experienced back, neck, or leg pain prior to October 1995 or that she had injured herself subsequent thereto. The jury found in favor of Law and awarded her $112,500 in damages. Barone timely appealed. Held:

Barone challenges the trial court’s exclusion of the redacted medical records, asserting that she should have been allowed to use the certified records to impeach Law’s testimony and to admit the records as substantive evidence for the jury to consider. In excluding such evidence, the trial court found that all of the medical records were completed by someone besides Law, presumably a physician or other medical provider. As such, it ruled that all such records were hearsay and that only prior statements actually written by Law were admissible.

We find, however, that the redacted medical records were admissible for several reasons. The trial court’s decision to exclude the medical records as hearsay was plain error of law, because the statements in the medical records were not hearsay; the medical records containing the statements were redacted to remove any medical opinions; and the records had a proper foundation for admission.

1. The trial court ruled that the medical records showing the inconsistent statements were inadmissible hearsay because it appeared that someone besides Law actually wrote down her statements. The trial court held that Waldrup v. Baker, 180 Ga. App. 121, 122 (1) (348 SE2d 566) (1986), did not allow the records to be admitted. However, in Waldrup, this Court upheld admission of patient medical history forms that were completed by the patient/witness that the defendant in that case sought to impeach. As such, Waldrup specifically authorized the admission of any of the medical records in this case that were, in fact, completed by Law. Waldrup did not decide the issue of admissibility of the other medical records in this case, i.e., those in which medical personnel allegedly recorded Law’s statements.

The trial court in this case also cited Stoneridge Properties v. Kuper, 178 Ga. App. 409, 411-412 (343 SE2d 424) (1986), as authority for excluding the medical records. However, the court in Stone-ridge Properties excluded medical records because they were not redacted, contained medical opinions of nonwitness medical providers, and had no foundation. Id. Notably, none of these factors were present in this case.

On appeal, this Court upheld the exclusion of the records in Stoneridge Properties because they had not been redacted to remove the opinion evidence but specifically held that “medical history statements given by a patient to a doctor are generally admissible” under OCGA § 24-3-4. Id. at 412. See also Southern R. Co. v. Lawson, 256 Ga. 798, 801-802 (353 SE2d 491) (1987); In the Interest of C. W. D., 232 Ga. App. 200, 209 (4) (501 SE2d 232) (1998); Central of Ga. R. Co. v. Carter, 212 Ga. App. 528, 531 (5) (442 SE2d 269) (1994); Davis v. State, 168 Ga. App. 272, 274 (308 SE2d 602) (1983); Dunn v. McIntyre, 146 Ga. App. 362, 363 (2) (246 SE2d 398) (1978). OCGA § 24-3-4 reads as follows:

[statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment shall be admissible in evidence.

This hearsay exception is based upon the inherent trustworthiness of medical information given by a patient to a medical provider, in view of the patient’s strong motivation to be truthful during diagnosis and treatment. Dunn v. McIntyre, supra at 364.

Therefore, Law’s alleged statements made to her medical providers regarding her medical history during her diagnosis and treatment were not inadmissible hearsay.

2. Since Law specifically denied any prior back, neck, or leg pain at trial, Law’s medical records showing otherwise were admissible under OCGA § 24-9-82, which provides that a “witness may be impeached by disproving the facts testified to by him.” The trial court erred in excluding Law’s redacted medical records. Because such evidence was wrongly excluded and is relevant to an essential element of Law’s claim, i.e., causation, such exclusion requires that this Court reverse the trial court’s judgment and remand the case for a new trial that is consistent with this opinion.

3. In addition to their admissibility as impeachment evidence under OCGA § 24-9-82, the records also may have been admissible under OCGA § 24-9-83, which states that a “witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case.” See also Gee v. State, 210 Ga. App. 60 (435 SE2d 275) (1993). Prior contradictory statements may also be used as substantive evidence when the witness is present at trial and subject to cross-examination. Duckworth v. State, 268 Ga. 566, 568 (492 SE2d 201) (1997); Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982); see also Waldrup v. Baker, supra.

However, in order for statements in medical records to be utilized as a prior inconsistent statement against a witness when the medical provider who recorded the witness’ statements in the medical record is not present at trial, the trial court must be able to reasonably infer from the face of the records that the witness was the actual source of the statements at issue if the witness denies having made the statement.* For example, such an inference may be made when the witness’ medical records (a) are written in the “first person,” as in a patient’s medical history; (b) specifically quote the witness as having made the statement; or (c) clearly indicate on the face of the records that the only source of the medical history was the witness, as when the information reveals something only the witness would know and which could not come from a third party. See Dunn v. McIntyre, supra at 363 (2). However, to the extent that the medical records are unclear as to the source of the statements contained therein, such statements may be utilized only as a witness’ prior inconsistent statements if additional foundation testimony is presented on remand to establish that the witness was, in fact, the declarant of such statements.

Decided January 13, 2000 —

Reconsideration denied January 28,. 2000.

Sharon W. Ware & Associates, Mark E. Silvey, for appellant.

The Robertson Law Firm, Mathew G. Nasrallah, Larry Hanna, Charles W. Chesbro, for appellees.

In this case, if Barone is able to demonstrate that Law, in fact, was the source of the statements in her medical records, so that the statements constitute prior inconsistent statements, the medical records would be admissible to attack Law’s credibility as prior inconsistent statements under OCGA § 24-9-83, as well as under OCGA § 24-9-82. See Division 2, supra.

Judgment reversed and remanded with direction.

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

       Notably, it was not necessary for the custodian of the records or the medical provider who actually recorded Law’s alleged statements to provide a foundation for admissibility of such records at trial. Certified medical records “need not be identified at the trial and may be used in any manner in which records identified at the trial by the custodian could be used.” OCGA § 24-7-8 (b). See also OCGA § 24-3-14 (b); Wilson v. Childers, 174 Ga. App. 179, 181 (4) (329 SE2d 503) (1985).

       This is in addition to the foundational requirements outlined in OCGA § 24-9-83, which requires, inter aha, that written contradictory statements be shown or read to the witness before they are used to impeach him, so that the witness will have an opportunity to correct or explain the statements. See Carter v. State, 244 Ga. 803, 806 (2) (262 SE2d 109) (1979); Aldridge v. State, 237 Ga. App. 209, 216 (515 SE2d 397) (1999); Davis v. State, 235 Ga. App. 256, 257-258 (510 SE2d 537) (1998).

       See, e.g., Waldrup v. Baker, supra.


author: , Andrews, Presiding Judge.

text:
    A99A1665.
    BROWN v. THE STATE.
    (528 SE2d 868)
   , Andrews, Presiding Judge.

Tony Allen Brown was tried before a jury on charges of murder, felony murder, aggravated assault, and possession of a firearm during the commission of a crime. He was found not guilty of the charged offenses but guilty of the lesser included offense of voluntary manslaughter. He appeals from the judgment of conviction entered on the guilty verdict.

1. All of the charges arose out of an incident in which Brown shot and killed Dudley Turner. Brown admitted that he shot and killed Turner but claimed that he acted in self-defense. According to a tape of the 911 call made by Brown immediately after the shooting, Brown reported that he and Turner were arguing in Brown’s apartment over a video cassette recorder which Brown had asked Turner to pawn for him. Brown said Turner came toward him with his hand in his pocket and jumped on him while he was sitting in a chair. Brown said he thought Turner had a knife in his pocket, so he shot him in self-defense.

In a later statement to police, Brown made no mention that he feared Turner was about to attack him with a knife. In his statement, Brown said that Turner had been drinking alcoholic beverages and using crack cocaine. He stated that he and Turner were arguing about the VCR and that Turner started getting “wild-eyed” and “crazy” and came at him while he was sitting in a chair, grabbed him, and hovered over him like he was going to hit him. Brown told police that “[Turner] started to grab me and I grabbed for the pistol and I don’t even remember cockin’ it, I just remember havin’ it in my hand and it goin’ off.” Brown stated that Turner jumped back, hollered, “Why’d you kill me?” and assaulted him again at which point he shot Turner a second time. The State presented evidence that the first shot, which struck Turner in the chest, was the fatal shot and the second shot grazed Turner’s head. In explaining his actions to police, Brown stated, “I did what I thought was the right thing to do at the time. Because, I mean, he’s a big ol’ boy, he works, my understanding, works with his dad in a lumber related company. He’s a big strong, I mean, strong fellow.” Brown stated that he was disabled and that he was afraid Turner, in his intoxicated condition, was about to severely injure or kill him. Brown did not testify or present any evidence at trial.

[A] person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony.

OCGA § 16-3-21 (a). When a defendant contends that the evidence shows he was justified in using such deadly force, the State has the burden of disproving this defense beyond a reasonable doubt. Andrews v. State, 267 Ga. 473, 474 (480 SE2d 29) (1997). Whether or not the evidence shows that a person had a reasonable belief that it was necessary to use deadly force to prevent death or great bodily injury to himself is a question for the jury. Anderson v. State, 245 Ga. 619, 623 (266 SE2d 221) (1980).

The evidence was sufficient to allow the jury to conclude beyond a reasonable doubt that Brown did not justifiably use deadly force to protect himself from Turner’s assault. Thomas v. State, 184 Ga. App. 131, 132 (361 SE2d 21) (1987); Young v. State, 229 Ga. App. 497 (494 SE2d 226) (1997). The evidence was also sufficient to show beyond a reasonable doubt that Brown was guilty of voluntary manslaughter in that he shot and killed Turner out of “a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” OCGA § 16-5-2 (a); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Brown claims the trial court erred in denying his motion for a continuance of the trial to allow the State Crime Lab to complete analysis of body fluids taken from Brown and Turner or to allow Brown to obtain an independent analysis of the fluids.

At the time of the shooting, the State took a blood sample from Turner and blood and urine samples from Brown and sent the samples to the State Crime Lab to be analyzed for possible alcohol or drug content. When the case was set for trial, the Crime Lab had not yet analyzed the samples because of delays caused by personnel changes at the lab. The State was ready to try the case without any analysis of the samples, but Brown filed a motion a week prior to trial asking that the trial court continue the case until such time as: (1) the Crime Lab analyzed the samples, or (2) he was allowed funds to obtain an independent analysis of the samples. The trial court denied the motion, and the case was tried without any analysis of the samples. After the trial, the Crime Lab completed analysis of the samples, which showed that at the time of the shooting Turner was under the influence of alcohol and cocaine and that Brown had only traces of prescription medication in his samples.

First, Brown had no right to seek, and the trial court had no authority to order, that the State Crime Lab analyze the samples for his benefit. Kendrix v. State, 206 Ga. App. 627, 628 (426 SE2d 251) (1992). It follows that Brown was not entitled to a continuance for this purpose.

Second, even though an indigent defendant, upon timely motion, has a right to funds to hire an expert to examine critical evidence which is subject to varying expert opinion, we find no error in the trial court’s denial of the motion for an expert in this case. Sabel v. State, 248 Ga. 10, 17 (282 SE2d 61) (1981), overruled on other grounds, Rower v. State, 264 Ga. 323 (443 SE2d 839) (1994); Roseboro v. State, 258 Ga. 39 (365 SE2d 115) (1988). An indigent criminal defendant’s motion for funds to obtain an independent expert should inform the trial court with reasonable precision why the evidence sought to be examined is critical, what type of testimony is needed, what the expert proposes to do regarding the evidence, and the anticipated costs for the expert services. Id. at 40-41; Thomason v. State, 268 Ga. 298, 310 (486 SE2d 861) (1997). Because Brown’s motion failed to set forth these elements, denial of the motion was not error. It follows that the trial court did not err in denying Brown a continuance for this purpose.

Moreover, the evidence admitted during the trial of the case showed that an analysis of the samples for drug or alcohol content was not critical to Brown’s defense. Brown admitted in his statement to police that he had been drinking alcoholic beverages prior to the shooting. In any event, whether or not Brown was voluntarily under the influence of alcohol at the time of the shooting was not a defense. Haywood v. State, 256 Ga. 694, 696 (353 SE2d 184) (1987). As to Turner, the evidence clearly established that he was under the influence of alcohol and cocaine at the time of the shooting. Even assuming this evidence supported Brown’s contention that Turner was the aggressor and that Brown acted in self-defense, additional evidence of alcohol and cocaine in Turner’s blood sample would have been cumulative.

Decided January 28, 2000.

Kelley A. Dial, for appellant.

T. Joseph Campbell, District Attorney, for appellee.

3. Contrary to Brown’s contention, the State did not violate his rights under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963) by failing to disclose exculpatory evidence contained in the samples. Even assuming an analysis of the samples would have produced exculpatory evidence, since no analysis of the samples was completed prior to or during the trial, the State did not have possession of any such evidence. Smith v. State, 222 Ga. App. 366, 369 (474 SE2d 272) (1996).

Judgment affirmed.

Ruffin and Ellington, JJ, concur.