text:
    A01A1644.
    ABERNATHY v. THE STATE.
    (556 SE2d 859)
   Ruffin, Judge.

A jury found Jerry Levern Abernathy guilty of two counts of first degree forgery. Abernathy’s convictions stem from two checks, drawn on the account of his former employer, which, the jury found, he forged and gave to acquaintances to negotiate. Abernathy appeals, asserting that the State improperly placed his character in evidence, that the trial court erred in charging the jury and in sentencing him as a recidivist, and that he received ineffective assistance of counsel. For reasons that follow, we affirm.

1. In his first enumeration of error, Abernathy asserts that the trial court “erred in not sua sponte granting a mistrial when a State’s witness put [his] character into evidence by stating that [he] had been in prison.” We are aware of no authority — and Abernathy has not cited any — that requires a trial court to take such action, sua sponte. Because Abernathy failed to object to the testimony at trial, he has waived the issue for appeal. Furthermore, the trial court’s failure to grant a mistrial does not constitute plain error. In Paul v. State, the Supreme Court of Georgia limited application of the plain error rule to death penalty cases and other criminal cases where the trial court violates OCGA § 17-8-57 by improperly expressing its opinion as to the guilt of the accused. This is not such a case.

2. Abernathy next asserts that the trial court erred in charging the jury that a witness can be impeached by evidence that the witness committed a crime of moral turpitude. Abernathy argues that the instruction was erroneous because there was no evidence that any of the witnesses were ever convicted of such a crime. Although we agree that the court erred, we do not find that Abernathy was prejudiced by the charge.

The instruction was part of the court’s broader charge on the methods of impeachment and the credibility of witnesses. The court did not emphasize the charge on crimes of moral turpitude, and it informed the jurors that it was for them to determine whether a witness had been impeached. Our Supreme Court has ruled that “giving ... an unauthorized charge on an unavailable method of impeachment is generally harmless error.” In light of this general rule, and considering the instructions as a whole, it was highly improbable that the error contributed to the verdict. The court’s error was, thus, harmless.

3. Abernathy also asserts that the trial court erred in instructing the jury that he could not be found guilty on bare suspicion. The record reveals, however, that the court gave this charge in response to Abernathy’s written request, and Abernathy is, therefore, estopped from asserting that the court erred in giving the instruction. Furthermore, considering the beneficial language of the charge, and in light of the court’s other instructions that Abernathy was presumed innocent and that it was the State’s burden to prove his guilt beyond a reasonable doubt, we fail to see how he was prejudiced.

4. Abernathy also claims that the trial court erred in sentencing him as a recidivist because the State failed to provide him with notice of the offenses it intended to use as evidence of recidivism. But Abernathy concedes in his appellate brief that “the State may have furnished notice of intent to seek recidivist punishment when it filed its responses to trial counsel’s motions.” In fact, the record contains a disclosure certificate, filed by the State, that includes a certificate of service to Abernathy’s counsel and shows that the State provided the required notice. Under these circumstances, we find no error.

5. In his final enumeration of error, Abernathy contends that he received ineffective assistance of trial counsel. To establish that trial counsel was ineffective, Abernathy “must show that his attorney’s performance was deficient and that the deficiency prejudiced him such that a reasonable probability exists that, but for the attorney’s errors, there would have been a different outcome at trial.” We must uphold the trial court’s finding that Abernathy received effective assistance of counsel unless that finding is clearly erroneous.

(a) Abernathy first claims that trial counsel was ineffective because he insufficiently questioned prospective jurors during voir dire, did not efficiently use the defense’s peremptory strikes, and failed to assert a Batson challenge at the conclusion of voir dire. At the hearing on the motion for new trial, however, Abernathy’s new attorney did not ask trial counsel about these matters, and “[i]n the absence of testimony to the contrary, counsel’s actions are presumed strategic.” Because counsel’s strategic decisions do not amount to ineffective assistance, we find no clear error by the trial court.

(b) Abernathy also asserts that trial counsel was inadequately prepared for trial because he failed to interview certain witnesses and spoke with others only briefly after the trial commenced. Abernathy has not shown, however, that counsel’s performance prejudiced his defense, and absent such showing, the trial court did not clearly err in finding counsel effective.

Decided November 29, 2001.

Derek H. Jones, for appellant.

Patrick H. Head, District Attorney, Timothy B. Lumpkin, Dana J. Norman, Assistant District Attorneys, for appellee.

(c) Abernathy next asserts that trial counsel was ineffective because he failed to question certain witnesses about their drug use. Counsel explained at the new trial hearing that he decided not to question the witnesses about drugs because it would not have benefitted Abernathy. As counsel’s decision was strategic, we find no clear error in the trial court’s ruling on this ground.

(d) Likewise, counsel testified at the new trial hearing that his decision to not object to the character evidence discussed in Division 1 stemmed from a strategy to minimize the jurors’ attention to the evidence. The trial court, therefore, did not clearly err in rejecting Abernathy’s ineffectiveness claim on this ground.

(e) Finally, Abernathy asserts that counsel was ineffective in failing to object to the court’s recidivist sentencing on the grounds that: (1) the State failed to provide adequate notice and (2) counsel neglected to discuss the ramifications of such sentencing with him. We addressed the first ground in Division 4, where we found sufficient evidence that the State properly notified Abernathy it would be seeking recidivist punishment. Considering such evidence, the trial court was authorized to impose recidivist sentencing, and Abernathy’s attorney was not ineffective for failing to object. As for Abernathy’s second argument, counsel’s failure to apprise him of the consequences of being a repeat offender does not constitute ineffective assistance of counsel.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       Abernathy was also charged with burglary, but the trial court directed a verdict in his favor on this count.

        Trotter v. State, 248 Ga. App. 156, 157 (2) (546 SE2d 286) (2001).

       Cf. Barnett v. State, 178 Ga. App. 685, 686 (1) (344 SE2d 665) (1986) (ruling that the defendant’s failure to object to inadmissible character evidence constituted waiver, but that defendant could still assert substantial error under OCGA § 5-5-24 (c) in court’s failure to give curative instruction). In this case, Abernathy does not assert substantial error in the trial court’s charge.

         272 Ga. 845, 848-849 (3) (537 SE2d 58) (2000). See also Pittman v. State, 273 Ga. 849, 850, n. 2 (546 SE2d 277) (2001).

        Francis v. State, 266 Ga. 69, 72 (3) (463 SE2d 859) (1995).

        Hardy v. State, 240 Ga. App. 115, 119-120 (6) (522 SE2d 704) (1999).

        Bryant v. State, 271 Ga. 99, 101 (4) (515 SE2d 836) (1999).

       See generally Whiting v. State, 269 Ga. 750, 752 (2) (a) (506 SE2d 846) (1998) (finding that trial court “fairly instructed the jury on the State’s burden, as well as that facts and circumstances merely casting grave suspicion upon the defendant or merely raising speculation or conjecture of the defendant’s guilt would not authorize conviction”).

       See OCGA § 17-10-2 (a) (providing that “only such evidence in aggravation as the state has made known to the defendant prior to the defendant’s trial shall be admissible”).

       See Washington v. State, 216 Ga. App. 352, 354 (3) (454 SE2d 214) (1995).

        Butler v. State, 273 Ga. 380, 384 (10) (541 SE2d 653) (2001).

         See Sikes v. State, 247 Ga. App. 855, 858 (2) (545 SE2d 73) (2001).

       (Punctuation omitted.) Holmes v. State, 273 Ga. 644, 648 (5) (c) (543 SE2d 688) (2001).

       See id.; Butler, supra at 384-385; Sikes, supra; see also Reynolds v. State, 234 Ga. App. 884, 888 (4) (a) (508 SE2d 674) (1998) (counsel’s strategic decision to not exercise peremptory strikes did not constitute ineffective assistance); Butts v. State, 273 Ga. 760, 765 (8) (546 SE2d 472) (2001) (same; counsel decided not to ask certain questions on voir dire); Polk v. State, 225 Ga. App. 257, 259 (1) (d) (483 SE2d 687) (1997) (same; counsel decided not to assert Batson challenge).

       See Butler, supra at 385 (10) (d) (ruling that counsel’s “failure to employ certain evidence cannot be deemed prejudicial to the defendant in the absence of a showing that the evidence would have been relevant and favorable to the defendant”); Mitchell v. State, 242 Ga. App. 177, 182 (4) (d) (529 SE2d 169) (2000) (defendant claimed insufficient preparation but did not show that “but for counsel’s failure to interview . . . eyewitnesses ... he would have been acquitted”).

       See Mitchell, supra at 182 (4) (c); see also Butler, supra at 384-385 (10) (a).

       See Riser v. State, 222 Ga. App. 348, 349 (474 SE2d 632) (1996).

       See Butler, supra at 384.

       See Gary v. State, 244 Ga. App. 577, 578 (536 SE2d 220) (2000).


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A01A1658.
    THE STATE v. ALLGOOD.
    (556 SE2d 857)
   Johnson, Presiding Judge.

After finding that James Allgood was denied his constitutional right to a speedy trial, the trial court dismissed charges filed against him. The state appeals from the trial court’s order. We affirm.

Allgood was arrested on June 30, 1996, and charged with rape, aggravated sodomy, aggravated sexual battery, and false imprisonment. Allgood was held in jail for three months without bond until, after filing a writ of habeas corpus, he was released on bond. Allgood was indicted in June 1997, waived arraignment in July 1997, and the case was placed on the trial calendar for November 14, 1997. For some reason which is not clear from the record, the case was not called for trial as scheduled and was eventually placed back on the trial calendar for April 11, 2000.

On April 7, 2000, Allgood filed a motion for continuance claiming his attorney needed more time “because of the number of witnesses.” At the same time, Allgood filed a motion to dismiss contending he was prejudiced by the state’s failure to try the case earlier. He noted that the delay caused him to be unable to locate certain witnesses, that a key witness died in a car accident in 1998, and that another key witness was currently stationed in Korea. The trial court granted the continuance, but did not immediately rule upon the motion to dismiss.

The case was called for trial in May, June, and August 2000. The reasons for the postponements are not evident from the record. On the August trial date, Allgood and his attorney were present, but the attorney requested a continuance because counsel was ill. Counsel informed the court that Allgood wanted to go to trial, but that counsel was too ill. The continuance was granted.

The case was not called for trial again until January 9, 2001, with trial scheduled to begin January 16, 2001. On January 12, 2001, after a hearing, the trial court granted Allgood’s motion to dismiss based upon the denial of his constitutional right to a speedy trial. On appeal, the state must show that the trial court abused its discretion by dismissing the case.

A four-part test is to be applied in determining whether a defendant was denied the constitutional right to a speedy trial. The factors to be considered are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the prejudice to the defendant. None of these factors alone is necessary or sufficient for a finding that a defendant was denied his right to a speedy trial; rather, the courts must engage in a difficult and sensitive balancing process. As we must, we review the trial court’s ruling under an abuse of discretion standard.

1. Length of delay. There was nearly a four-year delay between Allgood’s arrest in June 1996 and the call of the case for trial in April 2000. A delay of this magnitude raises a presumption of prejudice and triggers analysis of the other factors.

2. Reason for delay. Although Allgood requested continuances in April 2000 and August 2000, there is no indication in the record as to what caused the lengthy delay between his 1996 arrest and the 2000 trial date. Indeed, when asked at the hearing on the motion to dismiss why the case was not called for trial earlier, the prosecutor replied that she did not know.

When a delay is unexplained, it is treated as having been caused by the negligence of the state in not bringing the case to trial. The trial court expressly considered this factor and weighed it in All-good’s favor.

3. Defendant’s assertion of his right to a speedy trial. Allgood did not request a speedy trial until April 2000. However, as the trial court noted in its order and at the hearing, the filing of a speedy trial demand is not a prerequisite to a plea in bar for failure to have a speedy trial on constitutional grounds. And, Allgood did promptly file the motion to dismiss once the case was placed back on the trial calendar two and one-half years after the first call of the case.

4. Prejudice to defendant. One of Allgood’s witnesses died in 1998, two years after Allgood’s arrest. Generally, if a witness dies or disappears during a delay, the prejudice to the defendant is obvious. To carry his burden of showing prejudice due to the unavailability of a witness, though, Allgood must show that the missing witness could supply material evidence for the defense.

The witness, Kevin Pape, had given two audiotaped statements before he died. One was given to police, and the other was given to Allgood’s investigator. The statements were transcribed and made a part of the court record. It is clear from the transcripts that the witness, who was present during the alleged offenses, had information which would have benefitted the defense.

The state argues that Pape’s testimony would not have been material because it was cumulative of other testimony and also because some of it would be excludable under the Rape Shield Statute. However, the state has not shown that other witnesses would provide the same exculpatory evidence Pape could have provided. And even though some of the testimony Pape might have given would likely be excluded under the Rape Shield Statute, much of it would have been admissible.

Decided November 29, 2001.

Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellant.

Michael R. Jones, Sr., for appellee.

The state also argues that Allgood has not been prejudiced because Pape’s taped statements could be admitted under the necessity exception to the hearsay rule, given that he is deceased. Yet, at the motion hearing the state would not stipulate to the statements’ admissibility at trial.

Considering the length of time between the arrest and trial date, the lack of reason for the delay, and the impairment of Allgood’s defense caused by the death of his material witness, we find that the trial court did not abuse its discretion in granting Allgood’s motion to dismiss for lack of a speedy trial.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

        State v. Yates, 223 Ga. App. 403-404 (477 SE2d 670) (1996).

       Id.

        State v. Bazemore, 249 Ga. App. 584, 585 (1) (549 SE2d 426) (2001).

       Id.

       See id. at 585 (1) (a); Snow v. State, 229 Ga. App. 532, 533 (494 SE2d 309) (1997).

        State v. Bazemore, supra at 586 (1) (b).

        Snow v. State, supra.

        State v. Yates, supra at 404 (4).

        Jernigan v. State, 239 Ga. App. 65, 67 (517 SE2d 370) (1999).

       See State v. Yates, supra.


author: Barnes, Judge.

text:
    A01A1830.
    McHALE v. HJGM, INC.
    (556 SE2d 853)
   Barnes, Judge.

Lawrence McHale, a Georgia resident, contacted HJGM, Inc., a Rolls Royce dealership in Indiana, by telephone to purchase a rebuilt Rolls Royce engine. According to McHale’s unverified complaint, HJGM represented that it would sell him a “factory rebuilt” engine for $8,000, but instead HJGM shipped him an engine that was not factory rebuilt, which was far less valuable. Claiming jurisdiction under our Long Arm Statute (OCGA § 9-10-90 et seq.), McHale sued HJGM, alleging claims for breach of contract, fraud, and violation of the Georgia Fair Business Practices Act (FBPA). HJGM answered the complaint denying liability and asserting the lack of personal jurisdiction. The company then moved to dismiss McHale’s complaint for lack of personal jurisdiction over HJGM.

The trial court granted the motion, holding that OCGA § 9-10-91 (1) did not apply because HJGM does not transact business within this state. Also, the trial court ruled that neither OCGA § 9-10-91 (2) nor (3) applies because McHale failed to present any evidence that HJGM misrepresented the nature of the engine.

McHale challenges both rulings. Because we find that the trial court correctly dismissed the complaint for lack of personal jurisdiction, we affirm.

1. Under OCGA § 9-10-91 a Georgia court may exercise personal jurisdiction over a nonresident defendant who:

(1) Transacts any business within this state; (2) Commits a tortious act or omission within this state . . . ; [or] (3) Commits a tortious injury in this state caused by an act or omission outside this state if the tort-feasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed ... in this state.

A defendant moving to dismiss for lack of personal jurisdiction bears the burden of proving the absence of jurisdiction. Taeger Enterprises v. Herdlein Technologies, 213 Ga. App. 740, 744 (1) (445 SE2d 848) (1994). To meet that burden, the

defendant may raise matters not contained in the pleadings. However, when the outcome of the motion depends on unstipulated facts, it must be accompanied by supporting affidavits or citations to evidentiary material in the record. Further, to the extent that defendant’s evidence controverts the allegations of the complaint, plaintiff may not rely on mere allegations, but must also submit supporting affidavits or documentary evidence.

(Citations and punctuation omitted.) Id.

Further,

[i]f the motion is decided on the basis of written submissions alone, as was the motion in this case, disputes of fact found in the affidavits are resolved in favor of plaintiff. Further, if a motion is decided on the basis of the written submissions, the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard.

(Citations and punctuation omitted.) Southern Electronics Distrib. v. Anderson, 232 Ga. App. 648 (1) (502 SE2d 257) (1998). Because the case was decided on the written submissions alone, we will resolve any factual disputes in McHale’s favor and consider the issues de novo.

Although McHale argues that jurisdiction was proper under OCGA § 9-10-91 (1) because HJGM transacts business in this state, he did not dispute the statements in HJGM’s affidavit that it has no office, employees, or agents in Georgia and has never sent any representatives here for business purposes. Georgia courts have long held that an out-of-state corporation’s placement of advertisements in national publications, acceptance of telephone orders placed from Georgia, and subsequent delivery of goods to this state do not constitute the transaction of business in this state for purposes of long-arm jurisdiction. See Phears v. Doyne, 220 Ga. App. 550, 551 (1) (470 SE2d 236) (1996); Flint v. Gust, 180 Ga. App. 904, 905-906 (1) (351 SE2d 95) (1986), rev’d in part on other grounds, Gust v. Flint, 257 Ga. 129 (356 SE2d 513) (1987). We decline McHale’s invitation to depart from this well-established precedent.

2. Next, McHale argues that the trial court erred by focusing on the merits of his claim at this stage of the proceeding. We disagree. Because his complaint alleged that HJGM misrepresented the nature of the engine it was sending him and that this fraud suffices to establish personal jurisdiction under OCGA § 9-10-91 (2) or (3) (commits a tort within this state or commits a tortious injury in this state caused by an act or omission outside the state), consideration of these allegations was essential to test McHale’s jurisdictional claims.

Here, we find that HJGM’s affidavit with the attached invoice of the transaction between the parties was sufficient to establish that HJGM provided the engine McHale had ordered. The relevant part of the affidavit states:

[McHale] contacted [HJGM], by telephone in Indiana, regarding the purchase of a Rolls Royce Engine [and HJGM] agreed to sell [McHale] a SC I Engine, Engine # BF 618, Head # 3764, for the price of $8,000, plus $2,500 shipping charges to Georgia. This transaction is evidenced by Invoice No. 149588, attached hereto as Exhibit “A.”

As McHale’s fraud claim is based on his allegation that HJGM promised to send him an engine other than that described in the affidavit and invoice, McHale was required to submit affidavits or documentary evidence rebutting HJGM’s evidence. McHale, however, presented no affidavit or other evidence showing either that HJGM promised to sell him a factory rebuilt engine, that HJGM committed a tort in Georgia, or that HJGM committed a tort outside of this state that caused a tortious injury in Georgia. Instead, he merely submitted documents that tended to prove that HJGM had sales to customers in Georgia. That proof, however, was not sufficient to prove either that HJGM transacted business in this state or that it committéd a tortious act either here or elsewhere. McHale cannot rely upon the allegations in his unverified complaint to rebut HJGM’s evidence. Taeger Enterprises v. Herdlein Technologies, supra, 213 Ga. App. at 744.

Moreover, McHale’s contention that the trial court improperly converted HJGM’s motion to dismiss on jurisdictional grounds to a ruling on the merits of his claim is also without merit. The trial court’s order dismissed the case; it did not grant judgment to HJGM.

Further, even if we were to find that the trial court gave too broad a reading to HJGM’s affidavit, we would still affirm the trial court because any error would have been harmless. McHale’s tactics eliminated both OCGA § 9-10-91 (2) and (3) as grounds for asserting personal jurisdiction in this case. McHale’s underlying complaint is that he was fraudulently induced to buy the engine because of HJGM’s false promises.

A party claiming he

was fraudulently induced to enter a contract has two possible remedies: (1) to promptly rescind the contract after discovering the fraud and sue in tort for the recovery of the contract’s consideration, as well as any other damages resulting from the fraud; or (2) affirm the contract and sue for damages resulting from the contract.

Skipper Sams, Inc. v. Roswell-Holcomb Assoc., 247 Ga. App. 237, 242 (2) (543 SE2d 765) (2000). Thus, McHale could either promptly rescind the contract after discovering the fraud and sue in tort or affirm the contract and sue for contract damages resulting from the breach of contract.

As HJGM submitted to the trial court a letter from McHale’s attorney stating that HJGM had offered “to refund Mr. McHale’s money in exchange for the return of the engine, as well as freight both ways,” and McHale had refused that offer, McHale rejected rescission as a remedy. Thus, McHale’s surviving recourse was to affirm the contract and sue for contract damages. Although available to McHale generally, that remedy would not confer personal jurisdiction over HJGM in the courts of this state because HJGM was not transacting business in Georgia. McHale cannot assert long-arm jurisdiction for his contract claim on grounds that apply only to tort. See OCGA § 9-10-91 (2) or (3); Gust v. Flint, supra, 257 Ga. at 129. Consequently we would not reverse the trial court on the grounds asserted by McHale because we will affirm a correct ruling by the trial court if it is right for any reason. Nat. Consultants v. Burt, 186 Ga. App. 27, 33 (2) (366 SE2d 344) (1988).

3. As McHale has not asserted error connected with the dismissal of his claim under the FBPA, OCGA § 10-1-390 et seq., any such claim is waived. Rider v. State, 226 Ga. 14, 15 (2) (172 SE2d 318) (1970). Further, under the facts alleged, it is extremely doubtful that a justiciable FBPA claim existed. Davis v. Rich’s Dept. Stores, 248 Ga. App. 116, 118 (1) (545 SE2d 661) (2001); Chancellor, v. Gateway Lincoln-Mercury, 233 Ga. App. 38, 44 (2) (502 SE2d 799) (1998).

Decided November 29, 2001.

Hall, Booth, Smith & Slover, Phillip E. Friduss, Paul R. Roster, for appellant.

Reddy & Silvis, Donahue S. Silvis, for appellee.

Accordingly, the trial court correctly dismissed McHale’s complaint.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.


author: Ruffin, Judge.

text:
    A01A1961.
    COLLINS v. THE STATE.
    (556 SE2d 850)
   Ruffin, Judge.

A jury found Travis Collins guilty of armed robbery, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. On appeal, Collins challenges the sufficiency of the evidence. In two enumerations of error, Collins also asserts that he was prejudiced by the fact that a juror who was related to him was allowed to serve on the jury that convicted him. For reasons that follow, we affirm.

1. “On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in a light most favorable to the jury’s verdict.” So viewed, the evidence establishes that on August 21, 2000, two masked men robbed a liquor store at gunpoint. During the robbery, the store clerk pointed out a security camera, which evidently was attached to a VCR. Edgar Jackson, one of the perpetrators, dropped the gun and grabbed the VCR. Collins picked up the gun, and the two men fled to Hart Homes Apartments. Jackson testified that in addition to the VCR, he and Collins stole approximately $3,000.

While the robbery was in progress, Odessa Hart arrived at the store, and she saw the robbery take place through the store window. Hart then drove up to several employees of ComSouth Telecommunications who were working nearby, and she told them about the robbery and asked them to call the police. While Hart was stopped, the two robbers ran by her car. Chris Burch, one of the ComSouth employees, also saw the two men run by, and he watched them go into an apartment at Hart Homes Apartments. When the police arrived, Burch pointed out the apartment into which the men fled.

McArthur Brooks, a resident at the apartment, testified that on August 21, Collins and Jackson arrived at his apartment. According to Brooks, Jackson was still carrying the VCR. Shortly thereafter, the police arrived and escorted Brooks, a baby, and a girl from the apartment. The police ordered Collins and Jackson out of the apartment, but they remained inside. The police then used tear gas to flush the men from the apartment. When the officers entered the apartment, they found money scattered on the floor and discovered the VCR and a pistol hidden inside a closet. Collins was taken to jail, where a search revealed that he had approximately $1,600 hidden in his shoe.

On appeal, Collins asserts that the evidence was insufficient to support his conviction. We find this assertion without merit. The evidence of Collins’ guilt can fairly be characterized as overwhelming, and we are hard-pressed to imagine a stronger case against a defendant. From the time of the robbery until the police arrived, Collins’ whereabouts could be confirmed by at least one witness. And we are not troubled by the brief time it took for law enforcement officers to arrive at the apartment. “Although [Collins took the stand and] testified that he did not commit the robbery, it is well settled that it is the prerogative of the jury to accept the defendant’s statement as a whole, or to reject it as a whole.” Here, the jury clearly was authorized to discredit Collins’ self-serving testimony. It follows that this claim of error presents no basis for reversal.

2. Collins also asserts that his due process rights were violated when the trial court permitted a juror to remain on the jury notwithstanding her relationship to him. After the jury was impaneled, one of the jurors discovered that she was related to Collins. The juror informed the trial court that she learned that Collins’ “father is [her] first cousin.” The trial court concluded that, as a second cousin of the defendant, the juror was not legally disqualified from serving. The trial court then asked the juror whether her relationship with Collins would affect her “judgment at all one way or the other,” and she responded that it would not. The trial court permitted the juror to continue serving on the jury, and Collins interposed no objection.

OCGA § 15-12-163 (b) (4) requires that a juror be set aside for cause if that “juror is so near of kin to the . . . accused . . . as to disqualify the juror by law from serving on the jury.” And jurors are disqualified by relationship if they “are related by consanguinity or affinity to any party . . . within the sixth degree as computed according to the civil law.” Here, the juror was related to Collins within the fifth degree. Thus, the trial court erred in concluding that the juror was not legally disqualified from serving on Collins’ jury.

It does not follow, however, that such error warrants reversal. “The disqualification of a juror may be expressly or impliedly waived by a party having cause to complain.” Where “the party having cause to complain knew of the relationship and remained silent, that party will be presumed to have waived the disqualification.” Here, Collins clearly knew of the relationship and failed to object. Accordingly, he may not raise his objection on appeal. “No matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in the holding, and then complain of the same on appeal.”

3. In his final enumeration of error, Collins argues that his trial counsel was ineffective for failing to object to his relative’s continued service on the jury. “If an appellant raises on appeal the issue of ineffectiveness of his original trial counsel, and appellant did not have the opportunity to raise such issue in the trial court, we will ordinarily remand the case to the lower court for resolution of such issue.” Here, it is unclear whether Collins waived this issue. Assuming, for the sake of argument, that Collins preserved the issue for appeal, we still find no basis for reversal because, as a matter of law, the record does not support Collins’ assertion of ineffective assistance.

“To establish ineffectiveness, a defendant must show that trial counsel’s performance was deficient and that the deficiency caused sufficient prejudice to deprive him of a fair trial.” Here, the only alleged deficiency was the attorney’s failure to request the removal of the juror to whom Collins was related. Although the law requires that jurors related to an interested party be excused for cause, “[t]he foundation of the principle is the presumption that [the] juror would tend to favor [her] kinsman.” We fail to see how the attorney's failure to insist upon the dismissal of a juror legally presumed to favor his client can constitute ineffective assistance.

Decided November 29, 2001.

Nicholas E. White, for appellant.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

Even assuming that the attorney rendered ineffective assistance, Collins is not entitled to reversal because he is unable to demonstrate prejudice. As discussed above, the evidence of his guilt is overwhelming, and we find it extremely unlikely that the jury would have reached a different verdict absent the alleged error of counsel. “Thus, [Collins’] inability to show prejudice precludes reversal on this basis.”

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

        Sinclair v. State, 248 Ga. App. 132 (546 SE2d 7) (2001).

       (Punctuation omitted.) White v. State, 246 Ga. App. 864, 865 (542 SE2d 582) (2000).

       See Thorne v. State, 246 Ga. App. 741 (1) (542 SE2d 157) (2000).

       Although the trial court characterized the relationship of the defendant and the juror as second cousins, they are, in fact, first cousins once removed. See Cheeks v. State, 234 Ga. App. 446, 448, n. 12 (507 SE2d 204) (1998).

       (Punctuation omitted.) Id. at 449; OCGA § 15-12-135 (a).

       See Cheeks, supra.

       (Punctuation omitted.) Miller v. State, 233 Ga. App. 814, 815 (1) (506 SE2d 136) (1998).

       (Punctuation omitted.) Id.

        Ashford v. State, 271 Ga. 148, 149 (2) (518 SE2d 420) (1999).

       (Punctuation omitted.) Miller, supra.

        Howard v. State, 233 Ga. App. 724, 729 (7) (505 SE2d 768) (1998).

       See id. at 730 (if appellate attorney has opportunity to raise ineffectiveness issue in motion for new trial, it is incumbent upon him to do so).

       See Hunt v. State, 247 Ga. App. 464, 469 (6) (542 SE2d 591) (2001).

        Espy v. State, 246 Ga. App. 1, 3 (5) (539 SE2d 513) (2000).

        Wooten v. State, 145 Ga. App. 743 (1) (245 SE2d 34) (1978).

        Espy, supra at 4 (5).


text:
    A01A2209.
    WYNN v. THE STATE.
    (556 SE2d 863)
   Johnson, Presiding Judge.

Andre Wynn was convicted of burglary. He appeals, challenging the sufficiency of the evidence, the admission of similar transaction evidence and the in-court identification of him. The challenges are without merit, and we therefore affirm Wynn’s conviction.

1. On appeal from a criminal conviction, we no longer presume that the appellant is innocent, and we do not weigh the evidence or determine witness credibility; instead, we review the evidence in the light most favorable to the verdict to determine whether there is sufficient evidence from which a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Viewed in favor of the verdict, the evidence in the instant case shows that late on the night of September 3, 1998, two men used a crowbar to pry open the door to a closed Exxon convenience store in the town of Bolingbroke. The men entered the store and removed an automatic teller machine. The store security camera captured the incident on videotape.

A Monroe County sheriff’s investigator learned that two men who matched the appearance of the men on the videotape had been arrested for the burglary of a convenience store in Oconee County. The investigator went to Oconee County where he viewed the arrest photographs of those two men — Wynn and Charles Watkins — along with crowbars, a sledgehammer and bolt cutters found in the men’s vehicle. Based on the similarity between the Exxon burglars and Wynn and Watkins, the two men were charged with the Bolingbroke Exxon burglary.

The investigator also made still photographs from the Exxon videotape footage and showed the photographs to two employees of another convenience store located a few hundred feet down the road from the Exxon store. Both employees told the investigator that on several occasions they had seen the two men in their own store. And during the trial they both unequivocally identified Wynn and Watkins as the men who appear in the videotape photographs and who had been in their store.

In addition to the evidence concerning the instant crime, there was also evidence of other burglaries committed by Wynn and Watkins. In those other burglaries, the men gained entry to closed convenience stores by prying open doors. They then stole or tried to steal automatic teller machines or safes from the stores.

Having reviewed the evidence in the light most favorable to the verdict, we conclude that there is sufficient evidence from which a rational trier of fact could have found Wynn guilty of the burglary of the Exxon store. The evidence therefore authorized Wynn’s conviction.

2. Wynn claims that the court erred in allowing evidence of the other transactions because they are not sufficiently similar to the Exxon burglary. The claim is specious because the material facts of the other burglaries as well as the Exxon burglary are nearly identical: the men committed the crimes during late night to early morning hours, they targeted small convenience stores in Georgia, they gained entry to the closed stores by prying open their front doors, they were in each of the stores for approximately 45 seconds and the only items they took or attempted to take were automatic teller machines or safes. Given these material similarities, the trial court’s finding that the other burglaries were sufficiently like the present burglary was not clearly erroneous.

3. Wynn complains that the court erroneously allowed the in-court identification of him by the two employees from the store near the burglarized Exxon store because their testimony was tainted by the investigator having shown them a photograph of the Exxon burglars. Contrary to Wynn’s complaint, it is apparent from the witnesses’ testimony that they had ample opportunities to observe Wynn in their store, they gave accurate descriptions of him and they were absolutely certain that he was one of the men they had seen in their store. Thus, under the totality of the circumstances, there is no likelihood of misidentification.

Decided November 29, 2001.

Frank M. Wood, for appellant.

Richard G. Milam, District Attorney, Mark S. Daniel, Assistant District Attorney, James L. Moss, Jr., for appellee.

Moreover, even if the witnesses’ pre-trial identifications were tainted, their in-court identifications did not depend on those prior identifications. Instead, the in-court identifications had the independent origin of the witnesses’ own observations of Wynn in their store. Accordingly, Wynn has shown no reversible error based on the testimony of the two witnesses from the neighboring store.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        Morrill v. State, 216 Ga. App. 468-469 (1) (454 SE2d 796) (1995).

       See Richardson v. State, 182 Ga. App. 661, 663 (3) (356 SE2d 725) (1987).

        See King v. State, 246 Ga. App. 100, 101-102 (2) (539 SE2d 614) (2000).

       See Hixson v. State, 217 Ga. App. 606, 608 (3) (458 SE2d 402) (1995).

       See Quijano v. State, 271 Ga. 181, 184 (3) (516 SE2d 81) (1999); Tiller v. State, 222 Ga. App. 840, 841 (476 SE2d 591) (1996).


author: Andrews, Presiding Judge.

text:
    A01A0930.
    REESE v. THE STATE.
    (556 SE2d 150)
   Andrews, Presiding Judge.

Brandon Reese appeals his convictions for driving under the influence and possession of an open container. He claims that the trial court erred in denying his motion to suppress and in admitting evidence of his previous DUI conviction. Reese also contends that the trial court erred by: (1) quashing Reese’s subpoena of certain police radio communications records, (2) ruling on the merits of a motion to recuse, (3) refusing to allow certain testimony concerning the bias of a State witness, and (4) failing to require the State to produce the original of the videotape of Reese’s arrest. Reese further argues that the City Court of Atlanta is not legally constituted. We find that none of these claims has merit, and for the reasons set forth below, we affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). So viewed, the evidence shows that, in the early morning hours of August 5, 2000, a red Jeep crossed several lanes to exit from northbound 1-75 onto Northside Drive in Atlanta and “cut off” an unmarked police car driven by Major Peter Andreson, an off-duty police officer. Andreson followed the Jeep northbound on Northside Drive, but the Jeep made a U-turn in the front yard of a residence and headed back in a southerly direction. Andreson radioed Officer Centola for assistance. Upon receiving Andreson’s message, Centola drove to Northside Drive where he saw a Jeep weaving across the lanes. The vehicle would also slow or stop as it came to the reversible lane markers, as if the driver thought they were traffic signals. At Northside and Fourteenth Street, the Jeep turned into a convenience store parking lot, and Centola parked across the street at a Krystal restaurant. Centola intended to stop the vehicle to investigate a traffic violation, but decided that the gas station was too crowded to perform a field sobriety test. Reese and his passenger left the gas station and drove across the street to the Krystal restaurant where Reese and a passenger got out of the Jeep. Officer Centola approached them before they could go inside.

Centola noticed that Reese smelled of alcohol, that his face was pale and sweaty, and that he was thick-tongued and slow in his speech. In response to questioning by the officer, Reese denied he had been drinking, but agreed to undergo a field sobriety test. The field sobriety test included the horizontal gaze nystagmus evaluation, the nine-step walk and turn, the one-leg stand, and a recitation of the alphabet. Reese performed poorly on these tests. Reese also took a preliminary breath test which indicated the presence of alcohol. Centola concluded that Reese was not safe to drive and that he was under the influence of alcohol. Centola arrested Reese and informed him of his implied consent rights. Reese then underwent a breath analysis test which showed he had a blood alcohol content of 0.182. In Reese’s Jeep, Officer Centola found four empty bottles of beer.

1. Reese argues that the trial court erred in denying his motion to suppress because Officer Centola stopped Reese without articulable grounds to believe he had committed a traffic offense. The trial court held an evidentiary hearing with respect to the motion to suppress. “Credibility of witnesses, resolution of any conflict or inconsistency, and weight to be accorded testimony [are] solely the province of the judge on a motion to suppress.” Rogers v. State, 155 Ga. App. 685, 686 (2) (272 SE2d 549) (1980). The trial court’s findings of fact must be accepted unless clearly erroneous. Williams v. State, 151 Ga. App. 833, 834 (1) (261 SE2d 720) (1979).

The evidence presented at the hearing on Reese’s motion to suppress shows that Officer Centola observed a Jeep weaving across the road and stopping at reversible lane markers as if they were traffic signals, that this same Jeep turned into a convenience store and then drove across to the Krystal restaurant, and that Reese was the driver of this vehicle. The trial court found that Officer Centola had sufficient articulable suspicion to detain Reese for the purpose of investigating Reese’s driving behavior, see Taylor v. State, 249 Ga. App. 733, 734-735 (549 SE2d 536) (2001), and that, after Reese had performed the field sobriety test, the officer had probable cause to arrest him. The record supports these conclusions, and we find no error in the trial court’s denial of Reese’s motion to suppress.

2. Reese further claims that the trial court erred in admitting evidence of his previous DUI conviction as a similar transaction. We disagree. In order for similar transaction evidence to be properly admissible, the State must establish a permissible purpose for admitting the evidence, sufficient evidence that the defendant committed the prior act, and sufficient similarity between the two acts that proof of the former tends to prove the latter. See Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

The State satisfied all three prerequisites for the introduction of similar transaction evidence. First, the State introduced evidence of the prior DUI offense for the purpose of showing Reese’s bent of mind to consume alcohol and then operate a motor vehicle. Introduction of a prior DUI to show bent of mind in a subsequent DUI prosecution is a permissible purpose. See Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638) (1992). Second, the State showed that Reese was the perpetrator of the prior DUI. Third, the State showed that proof of the former DUI tended to prove the charge of driving under the influence. In considering this issue, we have noted that, unlike crimes against persons or property which might occur under various factual circumstances, “it is the simple act of driving . . . while under the influence that establishes the commission of [the crime].” Id. “Evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the defendant has the bent of mind to get behind the wheel of a vehicle when it is less safe for him to do so.” (Citations omitted.) Smith v. State, 236 Ga. App. 548, 552 (3) (512 SE2d 19) (1999), rev’d on other grounds, 272 Ga. 83 (526 SE2d 59) (2000). We find no error by the trial court in admitting evidence of Reese’s prior DUI.

Reese also challenges the testimony given in proving the similar transaction because it was highly inflammatory. The officer who investigated the previous DUI indicated that Reese was involved in an automobile collision which resulted in the severing of a passenger’s hand. We see no basis for Reese to claim error with regard to the testimony referencing the severed hand because trial counsel did not object to the testimony. The trial court was not asked to rule on whether the testimony was impermissibly inflammatory, and we may not rule on objections not made at trial. See Sales v. State, 199 Ga. App. 791, 792 (2) (406 SE2d 131) (1991).

3. Reese asserts that the trial court improperly quashed his subpoena of Atlanta Police Department radio communication dispatch tapes. The subpoena sought:

All original radio logs from the City of Atlanta Police Department on August 5, 2000 between the hours of 12:00 a.m. and 5:00 a.m. including all audio, written or computer-generated logs maintained for such dispatch and communications records. This should include all calls coming to dispatch or going out from dispatch and all calls recorded by the radio room between any officers. (**Of special interest is any communication between dispatch and Officer M. L. Centola. (APD No.: 2317))

Reese argues that, as there is evidence that Andreson. called out the tag number of the Jeep, the radio records were relevant to show whether the vehicle Andreson saw was Reese’s Jeep.

The trial court quashed the subpoena as overbroad. Reese’s subpoena requests a great deal of material which would have no relevancy to the proceedings. The subpoena asks for communications between parties who could have no possible connection with the incidents relevant to the trial and encompasses a period several hours before and after the established time of the incident. A subpoena should be specific enough to relate the documents sought to the questions at issue. See Plante v. State, 203 Ga. App. 33, 34 (1) (416 SE2d 316) (1992). The trial court has the discretion to quash a subpoena which is unreasonable or oppressive. See OCGA § 24-10-22 (b) (1). We find that, based on the unreasonable scope of the material requested, the trial court did not abuse its discretion in quashing the subpoena. Even if the trial court erred in quashing the subpoena, in order to warrant a reversal Reese must show that there is a reasonable probability that, had the requested materials been provided, the outcome of the trial would have been different. See Tuttle v. State, 232 Ga. App. 530, 532 (2) (502 SE2d 355) (1998). The testimony of Officer Centola and the results of Reese’s breathalyzer test are strong evidence in support of his guilt, and Reese cannot show that, had the requested records been provided, there was a reasonable probability of a different outcome.

4. Reese claims the trial court erred in ruling it had subject matter jurisdiction because the City Court of Atlanta is not legally constituted and established under the Georgia Constitution and other provisions of Georgia law. Our Supreme Court decided otherwise in Wickham v. State, 273 Ga. 563 (544 SE2d 439) (2001), and so this claim has no merit.

5. Reese argues that the trial court erred by considering his motion to recuse because, under Uniform Superior Court Rule 25.3, another judge was required to be assigned to consider the recusal motion. We disagree. Under USCR 25.3, the trial court is required to determine whether the motion to recuse is timely, the accompanying affidavit is sufficient, and the motion states a legal ground for recusal. USCR 25.3; see Christensen v. State, 245 Ga. App. 165, 170 (10) (537 SE2d 446) (2000). If recusal is not warranted under the facts set forth in the affidavit, the trial judge need not assign the motion to another judge. Gibson v. Decatur Fed. Sav. &c. Assn., 235 Ga. App. 160, 166 (3) (508 SE2d 788) (1998).

Reese maintains that the trial court had a pecuniary interest in the outcome of the trial because, should the trial court have decided that the city court was not legally established, his employment — and his financial future — would be endangered. Nevertheless, recusal is warranted only if the trial court’s pecuniary interest in a proceeding is direct, certain, and immediate. See DeLoach v. State, 78 Ga. App. 482, 486-487 (2) (51 SE2d 539) (1949). “[T]he liability or pecuniary gain or relief to the judge must occur upon the event of the suit, not result remotely in the future from the general operation of laws and government upon the status fixed by the decision.” (Punctuation omitted.) Robinson v. State, 86 Ga. App. 375, 378 (71 SE2d 677) (1952). Reese cannot show that the trial court had any direct and immediate interest in the outcome of the case; the effect of any ruling that the city court was not lawfully established on the trial court’s future employment is a matter of speculation. The trial court did not err by ruling on Reese’s motion to recuse because the motion was legally deficient on its face.

6. Reese claims the trial court erred by refusing to allow a defense witness to testify concerning an out-of-court statement made by State witness Andreson. Defense counsel maintained that the statement would be submitted for the purpose of showing Andreson’s bias. However, Reese made no proffer as to what this statement would be. Furthermore, “[b]efore a witness may be impeached by calling other witnesses to prove acts or declarations showing partiality, a . . . foundation must first be laid by cross-examining the witness sought to be impeached as to his feelings toward the party.” (Citation and punctuation omitted.) Simmons v. State, 266 Ga. 223, 227 (4) (466 SE2d 205) (1996). No foundation was laid for Andreson’s impeachment on the question of his bias. The trial court did not err in sustaining the State’s objection to the introduction of Andreson’s out-of-court statement.

7. Finally, Reese argues that the trial court erred in not requiring the State to produce the original of the videotape of his arrest so that he could inspect the original for alterations or omissions. There is no basis for suspecting that the original tape was tampered with. More importantly, the videotape used at trial was authenticated by Officer Centola as an accurate depiction of the arrest. We note that although Officer Centola was served with a subpoena requiring him to bring the original videotape to trial, he testified that he was not the custodian of the original tape. OCGA § 24-5-4 (b), the best evidence rule, does not apply to videotapes. See Cleveland v. State, 204 Ga. App. 101, 102 (2) (418 SE2d 430) (1992). We find no error in the trial court’s failure to require the State to produce the original videotape.

Decided October 23, 2001

Reconsideration denied November 30,2001

Head, Thomas, Webb & Willis, William C. Head, for appellant.

Joseph J. Drolet, Solicitor-General, Gerald Mason, Assistant Solicitor-General, for appellee.

Reese also includes an argument under this enumeration of error regarding the trial court’s failure to allow a witness to testify. The argument is not supported by reference to the record and has no connection to the enumeration of error under which it appears. We will not consider it. See Duffey v. State, 232 Ga. App. 693 (498 SE2d 816) (1998).

Judgment affirmed.

Eldridge and Miller, JJ, concur.


author: Smith, Presiding Judge.

text:
    A01A1444.
    THE STATE v. LENTSCH.
    (556 SE2d 248)
   Smith, Presiding Judge.

The State appeals from the grant of Todd Lentsch’s motion to suppress evidence made after he was arrested for DUI following a traffic stop. Lentsch was eventually charged in a seven-count accusation with DUI, suspended license, invalid license, no proof of insurance, driving without insurance, failure to maintain lane, and no tag. The trial court found that the initial stop was permissible but that a pat-down by the arresting officer constituted a formal arrest made without probable cause. The trial court further concluded that because Miranda warnings were not administered and Lentsch’s right to counsel was “repeatedly” violated, all evidence gathered after the pat-down must be suppressed. We hold that the pat-down did not constitute an arrest and that although probable cause may not have existed for a formal arrest, none was necessary before requesting that Lentsch agree to a state-administered breath test. We also conclude that no violation of Lentsch’s right to counsel occurred before Lentsch refused to perform the state-administered breath test. We therefore reverse the trial court’s grant of Lentsch’s motion to suppress.

The record shows that while on patrol at approximately 3:00 a.m., a Cobb County police officer observed Lentsch’s vehicle stopped at a red light. The officer noted that Lentsch’s vehicle had moved completely past the “balk line” and was moving slowly farther into the intersection. The officer testified at the hearing on the motion to suppress that when the light turned green, he followed Lentsch’s car as it turned left and drove northbound on Highway 41, where the officer observed it swerve several times. At some point, the officer turned on his blue lights, and he indicated he saw Lentsch leave his lane of travel or weave several times and twice nearly strike a curb before pulling into a parking lot.

According to the officer, Lentsch got out of his vehicle “pretty quick” and approached the police car. The officer told him several times to return to his car, but Lentsch kept approaching the police car, despite repeated commands to return to his vehicle. Because the officer had not yet conducted a pat-down, he was concerned for his safety. When Lentsch returned to his car, the officer approached and asked for a driver’s license and proof of insurance. The officer could not recall whether satisfactory proof of insurance was furnished, but Lentsch did produce his driver’s license. He asked Lentsch where he was coming from, and Lentsch first said he was coming from the home of a friend. Later, however, he admitted he had come from a bar. The officer testified he smelled alcohol on Lentsch’s breath, and he observed that Lentsch’s eyes were “very bloodshot,” that he was “slightly swaying side-to-side,” and that he was “shuffling feet just to kind of maintain balance.” In fact, the officer cautioned Lentsch not to fall when he approached the police officer, because Lentsch was “stumbling a little bit.” He asked Lentsch if he had had anything to drink, and Lentsch initially said he had not. He then asked Lentsch to get out of the car and “patted him down real quick just for weapons for my safety.” While he was being patted down, Lentsch admitted he had drunk a glass of wine that night.

The officer then asked Lentsch to perform voluntary field sobriety tests, and although Lentsch did not refuse to do so, he replied that he wished to speak with his attorney before making any decisions. The officer responded that Lentsch did not have that right at that time, that he was not under arrest, that the tests were completely voluntary, and that he could refuse them, but that he did not have the right to legal advice at that moment. His only options were to take the field tests or to refuse to take them. While this conversation continued for several minutes, another officer arrived. The officers insisted that Lentsch did not have the right to an attorney’s advice before the field sobriety tests, while Lentsch continued to insist that he would not refuse, but he would not agree to perform the tests until he spoke with his attorney. Ultimately, the officers stopped asking, and Lentsch was placed in handcuffs and read the implied consent warning. He refused to take a breath test without consulting his lawyer. He was then removed to the police station, where he again refused to perform a breath test.

The court found that the testimony of the officer on the issue of weaving was not credible and found that the officer’s testimony that Lentsch was swaying on his feet was “impeached” by the officer’s statement in his report that Lentsch was “steady on his feet” and by the videotape, which did not show swaying. The court concluded nevertheless that because an articulable suspicion of criminal conduct existed, the stop of Lentsch was lawful. We agree. The court also found, however, that Lentsch was placed under arrest when he was patted down for weapons. Even though the officer specifically told Lentsch several times that he was not under arrest, the trial court reasoned that the officer’s actions in making Lentsch turn his back and holding his hands during the pat-down “escalated this encounter from a mere roadside investigation to a full arrest” for which no probable cause existed. We cannot agree with this conclusion. Nor can we agree with the trial court’s finding that even if probable cause had existed at this point, all Lentsch’s statements must be suppressed because Lentsch did not receive Miranda warnings and that because Lentsch was in custody, his right to counsel was “repeatedly denied.” Finally, we do not find, as did the trial court, that even if Lentsch was not actually arrested before a formal arrest was eventually made, “probable cause did not exist at the time of the formal arrest.”

1. The mere fact that the officer held Lentsch’s hands with one hand while patting him down with the other did not transform the pat-down for weapons into a formal arrest. This issue is a mixed question of law and fact, and a trial court’s determination will not be disturbed unless it is clearly erroneous. Harper v. State, 243 Ga. App. 705, 706 (1) (534 SE2d 157) (2000). In this case, the trial court’s determination was clearly erroneous. Not every detention is an arrest. The test for determining whether a person is in custody at a traffic stop is not whether that person is briefly restrained, but whether “a reasonable person in the suspect’s position would have thought the detention would not be temporary.” (Citations and punctuation omitted.) Id. Given Lentsch’s initial failure to heed the officer’s command that he get back in his car, the officer’s repeated informing of Lentsch that he was merely being patted down to ensure the officer’s safety, and the fact that after the pat-down Lentsch was not physically restrained but held a conversation with the officer, the trial court was incorrect in concluding that the brief restraint during the pat-down was anything but temporary. The trial court erred in granting Lentsch’s motion to suppress on this ground.

2. We need not determine whether probable cause existed at this point, because no arrest had yet occurred and probable cause was not necessary. And since Lentsch was not in custody, no Miranda warnings were necessary at this point. Miranda warnings are not required before sobriety tests are performed unless a suspect is in custody. Keenan v. State, 263 Ga. 569, 571-572 (2) (436 SE2d 475) (1993). Compare Price v. State, 269 Ga. 222, 224-225 (3) (498 SE2d 262) (1998) (Miranda warnings necessary because suspect “in custody” when field sobriety tests performed). The trial court erred in granting Lentsch’s motion to suppress on this ground.

3. Finally, even if probable cause did not exist for a formal arrest when Lentsch was handcuffed, it existed after he was read the implied consent rights and refused to take the state-administered chemical test. A suspect may be advised of implied consent rights and required to choose whether to submit to or refuse a state-administered chemical test even though that suspect is not under arrest. Joiner v. State, 239 Ga. App. 843, 847 (1) (b) (ii), (iii) (522 SE2d 25) (1999). Lentsch was not entitled to an attorney at this stage. Cogdill v. Dept. of Public Safety, 135 Ga. App. 339, 340-341 (2) (217 SE2d 502) (1975). But even after Lentsch was placed in handcuffs, the failure to give Miranda warnings does not require that Lentsch’s refusal to take a state-administered breath test be suppressed. Bowman v. Palmour, 209 Ga. App. 270, 271 (2) (433 SE2d 380) (1993). We have held that the results of breath tests are admissible notwithstanding that a suspect is in custody when the test is given and no Miranda warnings are given. The results of a breath test are not testimonial or communicative evidence. Scanlon v. State, 237 Ga. App. 362, 364 (2) (514 SE2d 876) (1999).

Unlike cases involving field sobriety testing, this court has never held that Miranda warnings must precede the giving of an implied consent notice to a DUI suspect in police custody. Our state constitution does not prohibit the taking of a blood, urine, breath, or other bodily substance sample from a defendant without [his] consent, provided the taking of the sample is done under constitutionally acceptable conditions.

Decided November 8, 2001

Reconsideration denied November 30,2001

Barry E. Morgan, Solicitor-General, Keith S. Hasson, Assistant Solicitor-General, Browning & Tanksley, Lawrence J. LoRusso, for appellant.

Head, Thomas, Webb & Willis, Jamie S. Wingler, for appellee.

(Citations omitted.) Id. at 365 (4). It follows that Lentsch’s refusal to take such a test is also admissible, as provided by OCGA § 40-6-392 (d). Combined with the officer’s observations about the odor of alcohol emanating from Lentsch and his bloodshot eyes, Lentsch’s refusal to take the state-administered chemical test provided sufficient probable cause for his arrest. The trial court’s grant of Lentsch’s motion to suppress is therefore reversed.

Judgment reversed.

Barnes and Phipps, JJ, concur.

       Lentsch’s Illinois driver’s license eventually was found to have been suspended for DUL No proof of insurance was ever found for the vehicle Lentsch was driving.

       The officer testified that the statement in his report was “a misprint or a misspelling on my part”; he meant to say that Lentsch was unsteady on his feet. He also explained that the tape “didn’t show it very clearly, a lot of it due to the blue lights, and just, I mean, to the clarity of the video. But slight swaying while I was talking with him.”


author: Phipps, Judge.

text:
    A01A1715, A01A1717.
    A01A1716.
    COLLIS v. THE STATE (two cases). HYDE v. THE STATE.
    (556 SE2d 221)
   Phipps, Judge.

Jeffrey Collis and Jody Hyde were tried on charges which included armed robbery and hijacking a motor vehicle. On motion by Hyde, the trial court declared a mistrial. Both Collis and Hyde sought to prevent retrial by filing pleas in bar based on the theory of double jeopardy. The trial court denied the motions. On retrial, both Collis and Hyde were convicted of armed robbery; Hyde alone was convicted of hijacking a motor vehicle. In Case No. A01A1715, Collis appeals the denial of his plea in bar. In Case No. A01A1717, he appeals his conviction. In Case No. A01A1716, Hyde appeals the denial of his plea in bar as well as his convictions. We affirm in all cases.

Evidence introduced at both the first and second trial showed essentially the following. Collis and Hyde were joint participants in a sport known as “paintball.” They decided to commit theft by having paintball equipment delivered to a residence not traceable to either of them and then taking the equipment from the deliveryman without paying for it. They engaged in extensive planning and preparation for the robbery.

When a United Parcel Service (UPS) deliveryman, Robby Hales, approached the carport entrance to the residence on the day of the robbery, Hyde emerged with a gun in hand while Collis remained inside. Hyde informed Hales that he was being robbed and ordered him to come into the house to be bound and gagged. Instead, Hales fled toward the adjacent roadway with Hyde in pursuit. When Hales began to flag down a passing car, Hyde ended the chase and returned to the delivery truck.

As the events involving Hyde and Hales transpired, Collis became frightened, decided he wanted to end his involvement in the robbery, and fled out the rear of the house. Because the backyard was fenced and surrounded by woods, Collis ran around the house to the driveway. He got into the back of the delivery truck as Hyde was driving it away and began searching for the paintball equipment at Hyde’s request. When Collis informed Hyde that no equipment was there, Hyde stopped the van abruptly, and the two fled on foot.

During the first trial, an audio recording of an interviéw between Hyde’s girlfriend, Samantha Evans, and a police detective was played for the jury. Before the tape was played, the prosecuting attorney acknowledged that certain inadmissible matters (consisting of references to prior criminal behavior by Hyde) were discussed on the tape and stated that she would lower the volume on the tape when these matters were discussed. As the tape was played, Hyde’s attorney Law interrupted the proceedings and, at a bench conference (at which Collis’s attorney was present), moved for a mistrial. The following discussion took place between Law, the court, and prosecuting attorney Paris:

MR. LAW: Your honor, I’d move for a mistrial. That clearly put my client’s character in evidence.
THE COURT: What did it say? I wasn’t really listening.
MR. LAW: It was saying — Ms. Paris stated she was going to turn it down during that part.
MS. PARIS: That wasn’t the part I was talking about.
MR. LAW: It talked about his past because he had done bad things before and he had promised me he would never do that again. That’s absolutely prejudicial. I move for a mistrial.
MS. PARIS: Your Honor, it’s not specific.
THE COURT: It doesn’t have to be specific. All right. If that’s what you want, that’s what you’ve got.
MR. LAW: I’ve got no option, Judge.
MS. PARIS: Your Honor, can I ask for curative instructions, instead?
THE COURT: No.
(Whereupon, end of bench conference.)
THE COURT: All right. Ladies and gentlemen, the defendant in this case has requested the Court to declare a mistrial, and that’s exactly what I’m going to do. You’re free to go.
(Whereupon, the jurors are dismissed.)

1. (a) Because Hyde moved for a mistrial, double jeopardy does not bar his retrial unless the prosecutorial conduct which caused the mistrial was intended to “goad” him into moving for a mistrial in order to afford the prosecution a more favorable opportunity to convict. A blunder or mistake by the prosecutor is of no avail.

Both Collis and Hyde argue that the prosecutor intended to goad Hyde into moving for a mistrial because the trial was not going well for the State. In support of this assertion, defendants rely on the fact that earlier in the trial the prosecutor had protested that the State’s case was “hopelessly prejudiced” by the trial court allowing the defense to show the mandatory minimum sentence for armed robbery in cross-examining a prosecution witness who had been indicted along with the defendants. The prosecutor denies that her intent was to goad Hyde into moving for a mistrial. She points to the fact that she requested curative instructions instead of a mistrial. The prosecutor maintains that she simply neglected to lower the tape volume while one rather vague reference to Hyde’s criminal behavior was mentioned. The trial court found that the prosecutor’s omission was the result of prosecutorial negligence or mistake rather than deliberate misconduct. “The question of whether the State intended to ‘goad’ a defendant into requesting a mistrial ‘is a fact question for the (trial) court to resolve. [Cit.]’ [Cit.]” On the record before us, we cannot say that the trial court erred in resolving this question in favor of the State.

(b) Because Collis did not join in Hyde’s request for a mistrial, Collis may be retried only if (1) there was a “manifest necessity” for the declaration of a mistrial as to him, or (2) he acquiesced by silence in the ruling of the court by failing to object to it, thereby impliedly consenting to the mistrial.

Collis argues, and we agree, that there was no necessity for grant of the mistrial as to him. Therefore, the question is whether he acquiesced by silence in the court’s grant of Hyde’s motion for mistrial. Resolution of this question depends on whether Collis had an opportunity to object to the court’s ruling before the mistrial was declared and the jury dismissed. Although the transcript tends to support Collis’s argument that he did not have an opportunity to raise a timely objection, it does not conclusively resolve the question. Whether Collis had an opportunity to object turns on the amount of time which elapsed between the court’s expression of its intent to declare the mistrial and the dismissal of the jury. At the hearing on Collis’s and Hyde’s pleas in bar, the court found as a matter of fact that Collis had adequate time to object to the grant of the mistrial before the jury was dismissed. As the appellate record does not reflect the timing of trial events, we must accept this ruling as correct.

2. Both Collis and Hyde contend that the court erred in denying their demurrers to the armed robbery count of the indictment on the ground that it failed to allege that the thing taken was “property of another.”

OCGA § 16-8-41 (a) provides, in pertinent part, that a person commits the offense of armed robbery when, with intent to commit theft, he or she takes “property of another from the person or the immediate presence of another.” Consequently, in an armed robbery case, the State must allege and prove that the defendant took property of a person or persons other than the accused. The indictment in this case charged Collis and Hyde with having taken “property, to wit: a United Parcel Service vehicle, from the immediate presence of Robby Hales.” This constituted an allegation that the vehicle belonged to UPS and sufficiently put the defendants on notice that the property taken was that of another. “[T]he gravamen of the offense of armed robbery is the taking of items from the possession of another by use of an offensive weapon, and not the ownership status of the item taken.” “Robbery is a crime against possession, and is not affected by concepts of ownership.”

3. Hyde charges the trial court with error in denying his motion for directed verdict because of an absence of proof that property “of another” was taken in the armed robbery. There is no merit in this contention. Testimony given by Hales and UPS security personnel authorized the jury to find that the UPS vehicle did not belong to either defendant and was taken by them from the lawful possession of Hales.

4. Hyde claims that the court erred in charging the jury, with regard to the definition of armed robbery, that a person commits armed robbery when that person takes “any” property of another.

Hyde did not, however, object to this charge, and when the jury asked for a recharge on the definition of armed robbery, the trial court omitted the word “any.” Moreover, the State presented no evidence that the defendants took any property from Hales other than the UPS vehicle. Therefore, “we do not believe there is a reasonable possibility that the court’s apparent slip of the tongue misled the jury. . . ”

5. Hyde contends that the court erred in repeatedly charging the jury, consistent with the motor vehicle hijacking statute, that a person commits the offense of hijacking a motor vehicle when such person while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another “by force and violence, or intimidation. . . ” Although Hyde did not object to this charge at trial, he reserved his right to raise objections on appeal. Hyde complains that the charge was error because the indictment charged the defendants with committing motor vehicle hijacking only “by force and violence.”

In a related enumeration, Hyde contends that the trial court erred in denying his motion for directed verdict on the count of hijacking a motor vehicle because the evidence showed that any hijacking was committed by intimidation rather than by force and violence. Hyde bases this claim on Hales’s testimony that he was intimidated as a result of being threatened with a gun but that no one ever physically assaulted him.

Because we are of the opinion that threatening someone with a gun constitutes intimidation, as well as force and violence, we find no harmful error in the charge and no error in the denial of Hyde’s motion for directed verdict.

6. Both Collis and Hyde enumerate as error the trial court’s refusal to declare a mistrial after the court commented to the jury that it was going to spend the remainder of the day conferring with the lawyers in regard to jury instructions because “of the nature of this case, as you can tell, it’s a serious matter.”

The defendants complain that this comment had the effect of dissuading the jury from finding them guilty of lesser included offenses. We cannot agree. The context in which the comment was made makes clear that the trial court was merely explaining why holding a charge conference between counsel and the court would necessitate the jury’s absence from the courtroom for the remainder of the day.

7. Both Collis and Hyde charge the trial court with error in refusing to charge the jury on criminal attempt. Collis additionally complains of the court’s refusal to charge the jury on abandonment. We find no error.

Although the defendants correctly argue that the evidence showed that they only attempted to take the paintball equipment, it showed without dispute that, as alleged in the indictment, they did take the UPS vehicle. Where the evidence shows a completed crime, there is no error in refusing to charge on attempt.

Collis argues that the trial court should have charged on abandonment because there was evidence from which the jury could have found that he abandoned his attempt to steal the paintball equipment and later joined Hyde in the UPS vehicle as a means of escape. At trial, however, Collis acknowledged that he began looking for paintball equipment after entering the vehicle and that he and Hyde would have taken such equipment if he had found any. Under these circumstances, no charge on abandonment was warranted.

8. Hyde complains of the trial court’s refusal to charge the jury on the lesser included misdemeanor offense of pointing or aiming a gun or pistol at another.

The misdemeanor, however, “applies only where the victim is not placed in reasonable apprehension of immediate violent injury by the pointing of the firearm (e.g., when the victim is unaware a weapon has been pointed at him or her).” While facing Hales, Hyde pointed a gun at him and ordered him to place himself in a position which he reasonably perceived as life threatening. Hales was thereby placed in reasonable apprehension of immediate violent injury if he did not comply.

9. Both Collis and Hyde contend that the trial court erred in refusing to declare a mistrial based on the prosecutor’s inappropriate use of Hales’s presence in the courtroom to elicit sympathy from the jury.

At trial, defendants complained that the prosecutor’s continuous physical interaction with Hales throughout the trial resulted in Hales’s use as a “prosecution prop.” The trial court disagreed that Hales was being used in any such improper manner and denied the motion. The grant or denial of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge. On the record before us, defendants have shown no abuse of discretion.

10. Hyde contends that the court erred in denying his motion for mistrial because co-counsel’s reference to his involvement in a prior hearing improperly placed his character in issue. Because co-counsel’s statement did not have the effect suggested by Hyde, we find no error.

11. Hyde enumerates as error the court’s denial of his motion to sever parties.

He argues that a severance should have been granted because of the existence of “prejudicial evidentiary overlap.” But he has made no showing by citation to the record that any such overlap existed. We find no abuse of discretion in the trial court’s denial of Hyde’s motion to sever.

12. Hyde charges the court with error in denying his motion to disqualify the district attorney because he appeared at a hearing and gave testimony relating to a pretrial challenge to the composition of the grand jury. Because the district attorney’s testimony pertained to formal matters only, it cannot be said that the trial court erred in denying the motion to disqualify.

13. Hyde contends that the court erred in questioning a prosecution witness in an effort to assist the State in laying a proper evidentiary foundation for admission of evidence under the business records exception to the hearsay rule. Because Hyde did not object to this at trial, the issue has been waived.

14. Finally, Collis contends that the trial court erred in denying his motion to suppress incriminatory pretrial statements he made to law enforcement officers. Collis argues that the statements were involuntary under OCGA § 24-3-50 because they were induced by hope of benefit, i.e., a lighter sentence.

Testimony given by the officers authorized the court to find that they had told Collis that it is better to tell the truth and that, if he did so, they would inform the district attorney and do all they could for him. “[A]n investigator does not make an offer of hope of benefit upon telling a defendant that his or her cooperation will be made known to the prosecution, [cits.], or by offering help to the defendant. [Cit.]” “A reward of lighter punishment is generally the ‘hope of benefit’ to which OCGA § 24-3-50 refers. For an officer to advise an accused that it is always best to tell the truth will not, without more, render a subsequent confession inadmissible under OCGA § 24-3-50.” We find no error in the trial court’s denial of Collis’s motion to suppress.

Decided November 6, 2001

Reconsideration denied November 30,2001

Donald C. Evans, Jr., for appellant (case nos. AQ1A1715 and A01A1717).

P. Cole Law, for appellant (case no. A01A1716).

T. Joseph Campbell, District Attorney, Rebecca B. Paris, Assistant District Attorney, for appellee.

Judgments affirmed.

Smith, P. J, and Barnes, J., concur.

       See Oliver v. State, 216 Ga. App. 76, 78 (453 SE2d 746) (1995).

        Mosley v. State, 230 Ga. App. 890, 891-892 (1) (497 SE2d 608) (1998).

        Ward v. State, 230 Ga. App. 581, 582 (497 SE2d 65) (1998).

       Compare Ritter v. State, 269 Ga. 884 (506 SE2d 857) (1998), with Wilson v. State, 233 Ga. App. 327, 329 (3) (503 SE2d 924) (1998) (physical precedent only).

       See Dotson v. State, 213 Ga. App. 7, 8, 10 (1) (443 SE2d 650) (1994); see also State v. Johnson, 267 Ga. 305 (477 SE2d 579) (1996).

       See Dotson v. State, supra at 10.

         See generally State v. Johnson, supra; compare Dotson v. State, supra.

        Cain v. State, 212 Ga. App. 531, 537 (5) (442 SE2d 279) (1994).

       (Footnote omitted.) Holcomb v. State, 268 Ga. 100, 105 (5) (485 SE2d 192) (1997).

       (Citations and punctuation omitted.) Snelling v. State, 215 Ga. App. 263, 268 (2) (450 SE2d 299) (1994).

        Burns v. State, 246 Ga. App. 383, 384 (1) (540 SE2d 640) (2000).

       OCGA § 16-5-44.1 (b).

       See Chapman v. State, 273 Ga. 865, 867 (2) (548 SE2d 278) (2001) (although it is error to instruct the jury that a crime may be committed by either of two methods when the indictment charges it was committed by one specific method, the error is not harmful unless there is a reasonable possibility that the jury convicted the defendant of the commission of a crime in the uncharged manner).

         Sanders v. State, 251 Ga. 70, 77 (4) (303 SE2d 13) (1983).

       OCGA § 16-11-102.

        Watson v. State, 199 Ga. App. 825, 827 (3) (406 SE2d 509) (1991).

       Id.

       (Citations and punctuation omitted.) McKenzie v. State, 187 Ga. App. 840, 843 (3) (371 SE2d 869) (1988).

        Cain v. State, supra at 535 (2).

       See Mann v. State, 244 Ga. App. 756, 759 (3) (536 SE2d 608) (2000).

        Sharpe v. State, 272 Ga. 684, 686 (2) (531 SE2d 84) (2000).

       See generally Jackson v. State, 239 Ga. App. 77, 82 (2) (519 SE2d 746) (1999).

        Thomas v. State, 192 Ga. App. 744, 745 (2) (386 SE2d 402) (1989).

        Turner v. State, 245 Ga. App. 294, 299 (5) (536 SE2d 814) (2000).

       See Davis v. State, 245 Ga. App. 508, 509 (538 SE2d 159) (2000).