author: Andrews, Judge.

text:
    A96A0469.
    JOHNSON v. THE STATE.
    (471 SE2d 46)
   Andrews, Judge.

Betty Ann Johnson shot Shanelda Carlisle with a pistol. The bullet transected Carlisle’s spinal cord, partially paralyzing the 16-year-old victim and rendering her legs useless. Johnson appeals from a jury verdict finding her guilty of aggravated battery.

1. The State presented evidence showing that Johnson was at a school bus stop waiting for her 13-year-old son to get off the bus after school. When her son got off the bus, a fight started between her son and some girls. The victim was standing in a crowd of people at the bus stop near the area of the fight. When she saw her son in the fight, Johnson pulled a pistol from her purse. The State presented evidence that Johnson either intentionally shot the victim or intentionally fired into the crowd in the direction of the victim. Johnson admitted the victim was struck by a bullet fired from the pistol she was holding. She claimed, not that the shooting was justified, but that it was accidental. Johnson presented evidence that, when she pulled the pistol out of her purse, she intended to fire it into the air to disperse the crowd, but the victim or someone else grabbed her arm and tried to pull the pistol away from her, causing an unintentional discharge of the pistol.

The evidence viewed in favor of the jury’s verdict was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Johnson was guilty of aggravated battery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Johnson claims the trial court erroneously allowed the State to introduce testimony from a firearms expert who examined the pistol and gave a written report to the State two days prior to the trial. She claims the testimony of the expert as to the contents of the report should have been excluded because she filed a timely request for copies of written scientific reports pursuant to OCGA § 17-7-211 (b), and she did not receive a copy of the report until two days prior to the trial.

Although Johnson claims she filed a written request pursuant to OCGA § 17-7-211 (b), there is nothing in the record to support this claim. Contrary to Johnson’s assertion, the State does not concede that such a request was made. The appellant has the burden to support claimed error by the record. Keith v. State, 218 Ga. App. 729 (463 SE2d 51) (1995). In the absence of any evidence in the record that a written request invoking the requirements of OCGA § 17-7-211 (b) was made, Johnson has failed to carry the burden of establishing this assertion of error in the record. Cassie v. State, 192 Ga. App. 484, 486 (385 SE2d 129) (1989).

Even assuming Johnson made a timely written request pursuant to OCGA § 17-7-211 (b), we find no error in the admission of the expert’s testimony in this case. The State received the expert’s written report two days before trial and gave a copy of the report to defense counsel on the same day it was received. Nevertheless, the trial court excluded the written report but allowed the expert witness to testify as to the contents of the report. Even though the trial court excluded the report, the exclusionary rule for failure to comply with the requirements of OCGA § 17-7-211 (b), if applicable, would apply to exclude both the written report and oral testimony regarding the contents of the report. State v. Madigan, 249 Ga. 571 (292 SE2d 406) (1982), rev’d on other grounds, Law v. State, 251 Ga. 525, 528 (307 SE2d 904) (1983). We find that the exclusionary rule was not applicable under the present facts.

Although OCGA § 17-7-211 (b) provides that requested reports in possession of or available to the prosecution must be furnished to the defense at least ten days prior to trial, “[t]he statute does not prohibit the prosecution from introducing evidence of scientific tests performed [less than ten days] prior to . . . the trial absent a showing that the prosecution attempted to circumvent the discovery process.” (Citations and punctuation omitted.) Wellborn v. State, 258 Ga. 570, 572 (372 SE2d 220) (1988). “[WJhere compliance with the 10-day requirement is not possible, the defendant is entitled to the document within a reasonable time and may be entitled to a continuance or recess as the trial judge shall determine. Only where the prosecuting attorney fails altogether to furnish the document does the exclusionary rule apply.” (Citation and punctuation omitted.) Carey v. State, 257 Ga. 134, 136 (356 SE2d 507) (1987).

There is no evidence that the prosecution attempted to circumvent the discovery process. The State provided a copy of the report to defense counsel two days before trial as soon as it became available. Wellborn, supra at 572. Prior to trial, the defense moved for exclusion of the testimony or for an unspecified continuance. The trial court refused to exclude the testimony and stated that it would allow defense counsel time to speak with the witness prior to trial. Just prior to introduction of the expert testimony during the trial, the defense again moved for exclusion of the testimony. The trial court denied the motion and granted defense counsel’s request for a brief recess to speak with the witness prior to his testimony. Defense counsel does not contend that he was prevented from adequately conferring with the witness. Under these circumstances, we find no error in admission of the expert testimony.

Moreover, the testimony given by the expert witness was not inconsistent with Johnson’s defense that the shooting was accidental. The defense stipulated that the bullet removed from the victim’s body was fired from the gun Johnson was holding in her hand, so the expert’s similar conclusion based on the test results was not harmful. The only other portion of the testimony objected to by Johnson was the expert’s conclusion that to discharge the pistol by pulling the trigger would take about two pounds of force with the hammer in the cocked position and about nine pounds of force with the hammer uncocked. On cross-examination by defense counsel, the expert agreed that, given the relatively small amount of force necessary to pull the trigger, it was possible the pistol could be unintentionally discharged if someone attempted to pull the gun out of the gunholder’s hand while the holder’s finger was on the trigger. This testimony supported Johnson’s defense. Accordingly, even if the testimony was excludable, Johnson has demonstrated no harm.

Decided May 3, 1996.

Jeffrey P. Manciagli, for appellant.

Lewis R. Slaton, District Attorney, Herman L. Sloan, Carl P. Greenberg, Assistant District Attorneys, for appellee.

3. Johnson claims the trial court erroneously excluded evidence that a gang of girls known as the Reynoldstown Posse had beaten up her sons and other neighborhood children on previous occasions and had threatened to beat up one of her sons on the day at issue. In seeking to introduce this evidence, the defense stated that it would not show the victim was a member of the gang or had participated in any violent gang actions. Johnson claimed this evidence was relevant to show that the reason she put a pistol in her purse to go to the bus stop to pick up her son was for protection from the gang. The trial court ruled that Johnson could testify that she did not live in a safe neighborhood and that there was a lot of violence in the neighborhood, but excluded any reference to gang activity as irrelevant. We find no error.

Evidence of gang activity in the neighborhood was not relevant to the issues before the court. Moreover, despite the trial court’s ruling, evidence was admitted showing Johnson’s state of mind and reasons for carrying the gun. Johnson testified that, although she took a gun to the bus stop, she did so for protection and did not intend to shoot anyone. The exclusion of references to gang activity did not prevent Johnson from testifying that the girls had previously threatened her and threatened to beat up her son the day before the incident. The ruling did not prevent Johnson from fully explaining what happened at the bus stop at the time of the shooting nor did it prevent her from presenting her accident defense.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A96A0471.
    PARKS v. ANDERSON.
    (470 SE2d 811)
   Andrews, Judge.

This Court granted the application of Parks, an attorney, from the superior court’s dismissal of his arbitration award against a former client, Anderson. We reverse the trial court’s dismissal of the award and the grant of attorney fees to Anderson.

1. Parks initiated fee arbitration with Anderson, pursuant to Part VI of the State Bar Rules. 247 Ga. A-2 Part VI. An award of $5,750 in Parks’ favor was issued by the arbitrators on February 11, 1994. Thereafter, pursuant to Rule 6-501, Anderson requested that the award be filed on the records of the superior court. Pursuant to that rule, the original award was filed with the superior court, given a civil action number, assigned to a judge, and served on “all parties, with notice that if no objection under oath, including facts indicating that the award was the result of accident, or mistake, or the fraud of some one or all of the arbitrators or parties, or is otherwise illegal, is filed within thirty (30) days, the award shall become final? (Emphasis supplied.)

The only provision in the rules for the superior court’s taking any action other than allowing the award to become final is “[i]n the event an objection is properly filed.” Rule 6-501. In such a situation, the court sits under the same rules and regulations as are prescribed for the trials of appeals and may take the following actions: “affirm the award, vacate the award, or return the award to the arbitrators with specific directions for further consideration.”

In the present situation, no objection was filed and the award, as a matter of law, became final upon the expiration of the 30-day period for filing objections. See generally OCGA § 1-3-1.

The superior court nonetheless, on April 6, 1995, entered its order “that the amount awarded to [Parks] by [the] State Bar of Georgia Fee Arbitration Panel be dismissed” and that Parks pay Anderson attorney fees of $500. No authority is cited for such an action, which flies in the face of the wording of the Rules and the Georgia Arbitration Code.

As provided by OCGA § 9-9-1, the Georgia Arbitration Code applies to all proceedings in which, as here, the parties have agreed to arbitrate their dispute. As recently held in Greene v. Hundley, 266 Ga. 592 (468 SE2d 350) (1996), there are only four possible statutory bases (which are included in the wording of Rule 6-501) upon which to vacate an arbitration award, none of which applies here. Id. at 595 (3).

2. No legal or factual basis is cited by the court in its grant of attorney fees to Anderson. There is no legal provision for such an award in the Rules or other attorney fees statutes. See generally OCGA §§ 13-6-11 & 9-15-14. Therefore, this award was improper.

The order of the trial court is vacated in its entirety and this matter remanded to the superior court where, upon receipt of the remittitur, the arbitrators’ award shall become final.

Decided May 3, 1996.

Kirwan, Parks, Chesin & Remar, Harlan S. Miller III, for appellant.

John A. Roberts, for appellee.

Judgment vacated and remanded.

Pope, P. J., and Smith, J., concur.

       It is also noted that no brief was filed in this Court by Anderson.


author: Blackburn, Judge.

text:
    A96A0563.
    FRASURE v. CALHOUN.
    (471 SE2d 57)
   Blackburn, Judge.

Carnel C. Frasure, acting pro se, appeals the dismissal of a malpractice action he filed against his former attorney, Elizabeth C. Calhoun.

Frasure’s action was served on Calhoun on June 28, 1995, and it is undisputed that Frasure failed to obtain or attach an expert affidavit in support of his complaint as required by OCGA § 9-11-9.1. Calhoun neither sought nor received an extension of time within which to file her responsive pleadings. On August 3, 1995, 36 days after the complaint was served, Calhoun filed a motion to dismiss based on Frasure’s failure to comply with the affidavit requirement. The motion to dismiss was Calhoun’s initial responsive pleading. The trial court dismissed the action, rejecting Frasure’s arguments that the motion was untimely. This appeal ensued.

OCGA § 9-11-12 (a) generally requires responsive pleadings to be filed within 30 days after service of the summons and complaint. This 30-day deadline also applies to motions filed in lieu of an answer. See Williams v. Coca-Cola Co., 158 Ga. App. 139, 140 (279 SE2d 261) (1981). If responsive pleadings are not filed within the time required, the case is automatically in default. OCGA § 9-11-55 (a). OCGA § 9-11-55 (a) provides that a default may be opened as a matter of right upon the payment of costs and the filing of an answer within 15 days of the default. While Calhoun’s motion was docketed within the period when she could have opened the default as a matter of right, it was not accompanied by the payment of costs, and therefore, the default was not opened. The trial court erred by ruling on Calhoun’s motion while the case was in default. The motion did not keep the case from being in default. A defense to an action is not a ground in itself to opening a default. See Day v. Norman, 207 Ga. App. 37, 38 (427 SE2d 31) (1993). Therefore, we must reverse.

Decided May 3, 1996.

Carnel C. Frasure, pro se.

Jack E. Boone, Jr., for appellee.

No final judgment has been entered in this case, and prior thereto, the trial court may consider any motion to open default which might be filed and exercise its discretion as to such motion under the provisions of OCGA § 9-11-55 (b).

Judgment reversed.

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

       Calhoun claims that an answer was timely filed and attached a copy of the purported answer to her appellate brief. “A brief or an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record.” (Citations and punctuation omitted.) Stolle v. State Farm Mut. &c. Ins. Co., 206 Ga. App. 235, 236 (424 SE2d 807) (1992). Although an attachment to an appellate brief cannot be used as evidence, we note that the purported copy of Calhoun’s answer indicates that it was served upon Frasure on July 28, 1995; however, the copy reflects no file stamp from the trial court.


author: McMurray, Presiding Judge.

text:
    A96A0571.
    CLARK v. THE STATE.
    (470 SE2d 816)
   McMurray, Presiding Judge.

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

The victim was dozing off in his truck which was parked at a convenience store. The motor was running as the victim was waiting while his girl friend made a brief stop at the store. The victim heard the door open, and when he looked up, he saw an intruder getting into the truck. The intruder stuck the sharp jagged edge of a broken beer bottle to the victim’s throat and told him to move over. The victim grabbed the intruder’s arm and pushed it back, but the intruder transferred the broken bottle to his other hand and moved it back towards the victim’s throat. The victim escaped out the other side of the truck and started screaming for someone to call the police. The intruder drove away in the victim’s truck.

The victim’s truck was spotted by police a few hours later. Defendant was identified by officers as the individual who quickly parked the truck and walked away from it when they approached. The keys to the truck were found on the ground near defendant. Defendant told the officers that the keys were to his car, but the officers checked and found that they fit the truck. The victim identified defendant as the person who had taken his truck through the use of the broken beer bottle.

Defendant’s argument that the broken beer bottle was not an offensive weapon within the meaning of OCGA § 16-8-41 (a) is not well founded. This term includes not only weapons which are offensive per se, “ ‘(but) also embraces other instrumentalities not normally considered to be offensive weapons in and of themselves but which may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of their use. (Cit.)’ [Cit.]” Eady v. State, 182 Ga. App. 293 (1), 295 (355 SE2d 778). The manner in which the broken beer bottle was used in the case sub judice clearly authorized the jury to conclude that it was an offensive weapon.

Decided May 3, 1996.

Edwards & Youmas, Brenda C. Youmas, for appellant.

Charles H. Weston, District Attorney, Kimberly S. Shumate, Thomas J. Matthews, Assistant District Attorneys, for appellee.

Since there was evidence that defendant took the victim’s truck and its contents through the use of an offensive weapon, the jury was authorized to conclude that defendant was guilty beyond a reasonable doubt of the offense of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Defendant’s arguments concerning the reliability of the identification testimony present only credibility issues within the exclusive province of the jury. Sorrells v. State, 218 Ga. App. 413 (1) (461 SE2d 904).

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


author: Ruffin, Judge.

text:
    A96A0631.
    HULSINGER v. THE STATE.
    (470 SE2d 809)
   Ruffin, Judge.

Chester Hulsinger appeals the trial court’s denial of his motion to suppress the results of an Intoximeter test on the ground that the arresting officer failed to provide an independent blood test under OCGA § 40-6-392 (a) (3). For reasons which follow, we affirm.

At the hearing on the motion to suppress, the arresting officer testified that after Hulsinger’s arrest and agreement to undergo a breath test at the police station, he stated that he wanted a blood test. The officer then furnished Hulsinger a telephone and telephone book and assisted him in finding the telephone number for the Houston County Medical Center. Hulsinger called the hospital and arranged for a blood test. The officer took Hulsinger to the hospital where a nurse drew his blood and gave the blood specimen back to him. According to the officer, the nurse told Hulsinger that having the blood tested was his responsibility and that he would have to get a lawyer to do so. When Hulsinger asked the officer how he could get the blood tested, the officer indicated that he had no idea, but also suggested that Hulsinger contact a lawyer or his personal physician. Hulsinger flatly rejected the officer’s offer to store the sample in the police department evidence locker and to submit the sample for testing by the State Crime Lab.

The evidence further shows that the officer never asked Hulsinger if he wanted to be taken anywhere else for testing. The officer testified that he was unaware of any other places in Warner Robins that could have drawn and tested Hulsinger’s blood at 2:00 a.m. He also admitted on cross-examination that from time to time he had arrested other persons and transported them to other cities and counties to be jailed, but when asked whether he could have taken Hulsinger elsewhere to have his blood tested, the officer indicated that he was not obligated to take Hulsinger to have his blood tested. His duty was “just to make sure he gets the blood drawn.”

“ ‘In reviewing a trial court’s decision on a motion to suppress . . ., our responsibility is to ensure that there was a substantial basis for the decision. In so doing, we may consider all relevant evidence of record, wherever located, including evidence introduced at a suppression hearing and that introduced at trial; we construe the evidence most favorably to uphold the findings and judgment, and must adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. Further, since the trial court sits as the trier of facts, its findings will not be disturbed if there is any evidence to support them.’ . . . [Cits.]” (Emphasis omitted.) State v. Brodie, 216 Ga. App. 198, 199 (1) (c) (453 SE2d 786) (1995).

“ ‘OCGA § 40-6-392 (a) (3) allows one accused of driving under the influence of alcoholic beverages the right to have a chemical analysis of his blood and urine by a qualified person of his own choosing, and there is a corresponding duty on the part of law enforcement officers not to refuse or fail to allow the accused to exercise that right. (Cit.)’ [Cit.] If an individual requests an independent test but is unable to obtain it, the results of the State-administered test cannot be used by the State as evidence against him unless the failure to obtain the test is justified. [Cit.] ‘It is incumbent on the trial court to determine whether the failure or inability to obtain the additional test is justified. In making that determination, the trial court must decide if, under the totality of the circumstances, the officer made a reasonable effort to accommodate the accused who seeks an independent test.’ [Cit.]” State v. Button, 206 Ga. App. 673, 674 (426 SE2d 194) (1992).

This case is factually similar to Button because in both cases the officer took the accused to a hospital where his blood was drawn, no blood-alcohol test was performed, and the officer did not take the accused elsewhere for testing. In Button, we agreed with the trial court that the officer did not fulfill his duty to accommodate the accused by simply taking him to a hospital where his blood was drawn but no blood test was performed. However, unlike Button, the trial court in this case denied the motion to suppress, apparently finding that the officer made a reasonable effort to accommodate Hulsinger in his attempt to obtain an independent blood test.

Decided May 3, 1996.

Gregory W. Holt, Laurens C. Lee, Rodney E. Davis, for appellant.

Robert E. Turner, Solicitor, Cynthia T. Adams, Assistant Solicitor, for appellee.

As we examine the evidence supporting the trial court’s finding, we note at the outset that the officer was mistaken in his belief that his duty was simply to assist Hulsinger in getting his blood drawn. Once an individual requests an independent test, the officer’s concomitant duty to accommodate arises and continues until the accused obtains an admissible test or until it is determined that, despite reasonable efforts, such a test cannot be obtained. Id. at 675. Even so, the evidence in the present case showed that the officer was unaware of anyone who could perform a blood test in Warner Robins at 2:00 a.m. He suggested that Hulsinger contact an attorney or his personal physician and offered to store the sample in the police evidence locker and to submit the sample for testing by the State Crime Lab. Although none of these efforts guaranteed him an admissible blood test, Hulsinger did not produce evidence of any reasonable means by which a blood test could have been performed at the time he made his request.

Therefore, because we are bound to construe the evidence most favorably to uphold the trial court’s findings and judgment, we have no choice but to conclude that under the totality of circumstances, the officer’s efforts were reasonable, and the trial court did not abuse its discretion in denying Hulsinger’s motion to suppress.

Judgment affirmed.

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


text:
    A96A0706.
    OH v. BELL.
    (470 SE2d 807)
   Andrews, Judge.

George E. Bell brought an action against In Keuk Oh in superior court alleging malicious prosecution and breach of contract. Oh answered and moved for summary judgment on the basis that Bell failed to assert these claims as compulsory counterclaims in a prior magistrate court action brought by Oh against Bell in which Oh was granted a default judgment. We granted Oh’s application for an interlocutory appeal from the trial court’s denial of his motion for summary judgment.

Oh contracted to provide shoe repair services for Bell, who operated a leather goods business. In 1994 a dispute arose between Bell and Oh over payment for and the quality of the repairs. Oh obtained a criminal arrest warrant charging Bell with theft of the shoe repair services. After Bell was arrested pursuant to the warrant, the recorder’s court dismissed the charges on June 6, 1994.

On October 21, 1994, Oh sued Bell in magistrate court on open account and breach of contract over unpaid bills for the disputed shoe repair services. Bell was served but did not answer the complaint, and the magistrate court entered a default judgment in favor of Oh on January 4, 1995.

On April 19, 1995, Bell filed the instant superior court action against Oh asserting claims for malicious prosecution relating to his arrest on the dismissed theft of services charge and breach of contract relating to the shoe repair services, the subject of the magistrate court action. Oh moved for summary judgment on grounds that the claims were barred under the doctrine of res judicata because of Bell’s failure to assert them in the prior magistrate court action. Oh claims the trial court erred by denying his motion for summary judgment.

Although the compulsory counterclaim provisions of OCGA § 9-11-13 (a) of the Civil Practice Act did not apply in the magistrate court action brought by Oh (OCGA § 15-10-42; see Howe v. Roberts, 259 Ga. 617 (385 SE2d 276) (1989)), the provisions governing civil proceedings in magistrate courts specifically set forth the procedures regarding the filing of compulsory and permissive counterclaims. OCGA § 15-10-45. Under OCGA § 15-10-45 (a), “[i]f any defendant has a claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim, which claim does not require for its adjudication the presence of third parties over whom the court cannot obtain jurisdiction, such claim must be asserted by the defendant at or before the hearing on plaintiff’s claim or thereafter be barred.” Subsection (d) of OCGA § 15-10-45 further provides in pertinent part that “[i]f the amount of a counterclaim exceeds the jurisdictional limits of the magistrate court, the case shall be transferred to any court of the county which has jurisdictional limits which exceed the amount of the counterclaim.”

The subject matter of Oh’s prior magistrate court action against Bell on open account and breach of contract was the dispute between Oh and Bell over shoe repair services provided by Oh and Bell’s refusal to pay for those services. Bell’s present superior court action against Oh for malicious prosecution and breach of contract was based on Bell’s arrest on the charge for theft of the disputed shoe repair services and on a claim that Oh breached the shoe repair contract. Both of these claims arose out of the transaction or occurrence that was the subject matter of the prior magistrate court action.

The compulsory counterclaim provisions of OCGA § 9-11-13 (a) contain language almost identical to that used in OCGA § 15-10-45 (a) to define a compulsory counterclaim. OCGA § 9-11-13 (a) provides in part that a counterclaim is compulsory “if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.” In applying OCGA § 9-11-13 (a), we have held that “the term ‘occurrence’ or ‘same transaction’ has been given a broad and realistic interpretation by the courts. Thus, the test to be applied in determining whether a counterclaim is compulsory is whether there is a logical relationship between the claim advanced by the plaintiff and the claim asserted by the defendant. Any claim that is logically related to another claim that is being sued on is properly the basis for a compulsory counterclaim.” (Citations and punctuation omitted.) Walker v. Bishop, 169 Ga. App. 236, 238 (312 SE2d 349) (1983). Under this test, Bell’s present claims for malicious prosecution and breach of contract were compulsory counterclaims that should have been asserted in the prior magistrate court action pursuant to OCGA § 15-10-45. See Leggett v. Gibson-Hart-Durden Funeral Home, 123 Ga. App. 224 (180 SE2d 256) (1971); B. J. Howard Corp. v. Skinner, Wilson, Strickland &c., 172 Ga. App. 446, 447 (323 SE2d 664) (1984); Walker, supra at 238-239.

Nevertheless, Bell contends that he could not have asserted his current claims in the prior magistrate court action because those claims exceeded the magistrate court’s $5,000 jurisdictional limit. OCGA § 15-10-2 (5). However, OCGA § 15-10-45 (d) specifically provides that where the amount of a compulsory counterclaim exceeds the magistrate court’s jurisdictional limit, the case shall be transferred to another court with adequate jurisdictional limits. The plain language of OCGA § 15-10-45 (d) provides for the filing of compulsory counterclaims for amounts exceeding the jurisdictional limits of the magistrate court and the transfer of the case to another court with jurisdiction over the case. Because Bell failed to assert his current claims as compulsory counterclaims in Oh’s magistrate court action, they are barred under OCGA § 15-10-45 (a) and the doctrine of res judicata. See OCGA § 9-12-40; Walker, supra at 239.

The trial court erred by denying Oh’s motion for summary judgment.

Decided May 3, 1996.

Allen W. Bodiford, Martin C. Jones, for appellant.

Mark A. Smith III, for appellee.

Judgment reversed.

Pope, P. J., and Smith, J., concur.


text:
    A96A1331.
    ADIVARI v. SEARS, ROEBUCK & COMPANY et al.
    (471 SE2d 59)
    Decided May 3, 1996.
    Suzanne Adivari, pro se.

   McMurray, Presiding Judge.

In this workers’ compensation case, the superior court dismissed claimant Suzanne Adivari’s pro se appeal from the decision of the Appellate Division, ostensibly pursuant to the provisions of OCGA § 34-9-105, in an order entered on January 3, 1996. Thereafter, claimant filed an “APPLICATION FOR APPEAL” with the clerk of the superior court, complaining of the decision “to dismiss the appellants request to appeal the decision of the Workers’ Compensation Full Board,” now the Appellate Division. But no application for discretionary appeal was made to this Court.

“ A party should review the discretionary application statute to see if it covers the underlying subject matter of the appeal. If it does, then the party must file an application for appeal as provided under OCGA § 5-6-35. . . .’ Rebich v. Miles, [264 Ga. 467 (448 SE2d 192)] at 469.” Prison Health Svcs. v. Dept. of Admin. Svcs., 265 Ga. 810, 811 (1) (462 SE2d 601). OCGA § 5-6-35 (a) (1), in conjunction with OCGA § 5-6-35 (b) and (d), provides that appeals from the decisions of the superior courts reviewing decisions of the State Board of Workers’ Compensation shall be by application in the nature of a petition for discretionary appeal, filed with the clerk of the Supreme Court or the Court of Appeals within 30 days of the entry of the order, decision, or judgment complained of. In the case sub judice, claimant’s application for appeal, filed with the clerk of the superior court, is not in the nature of a petition timely filed with this Court, seeking permission to file a discretionary appeal. Claimant’s “failure to follow that procedure requires dismissal of [this appeal].” Prison Health Svcs. v. Dept. of Admin. Svcs., 265 Ga. 810, 811 (1), supra.

Appeal dismissed.

Johnson and Ruffin, JJ, concur.

Drew, Eckl & Farnham, Nicole D. Tifverman, John A. Ferguson, Jr., for appellees.


text:
    A96A0455.
    MILLER v. DEPARTMENT OF PUBLIC SAFETY.
    (470 SE2d 773)
   Andrews, Judge.

Miller sued the Georgia Department of Public Safety (DPS) alleging that a Georgia State Patrol officer employed in the Uniform Division of the DPS used excessive force amounting to an unprovoked assault and battery upon his person while the officer was arresting him for a motor vehicle violation. In his complaint, Miller alleged causes of action under 42 USC § 1983 and under the Georgia Tort Claims Act (OCGA § 50-21-20 et seq.). The DPS answered and moved for dismissal of the complaint contending it was not subject to suit under 42 USC § 1983 and that it was entitled to the defense of sovereign immunity under provisions of the Georgia Constitution and the Tort Claims Act. The trial court granted DPS’s motion to dismiss, and Miller appeals.

Miller concedes that he abandoned his claim under 42 USC § 1983 at the hearing on the motion to dismiss. Although he contends his claim against the DPS under the Tort Claims Act is not based on “the causes of action [for] assault and battery per se,” Miller argues that he has a viable claim under the Tort Claims Act because the alleged assault and battery also constituted violations of his rights under the Georgia Constitution to protection of his person and equal protection under Art. I, Sec. I, Par. II and to protection from abuse while being arrested under Art. I, Sec. I, Par. XVII.

Since the cause of action at issue accrued after January 1, 1991, this case is governed by the 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983. Curtis v. Bd. of Regents &c., 262 Ga. 226 (416 SE2d 510) (1992). Under that amendment, sovereign immunity was extended “to the state and all of its departments and agencies” and “can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e). Accordingly, as a department or agency of the state, the DPS is entitled to sovereign immunity absent a waiver thereof in accordance with the 1991 amendment. See Gilbert v. Richardson, 264 Ga. 744, 746-748 (452 SE2d 476) (1994); Martin v. Dept. of Public Safety, 257 Ga. 300 (357 SE2d 569) (1987) (applying sovereign immunity to the DPS under the pre-1991 provisions of the Georgia Constitution extending sovereign immunity to “the state and all of its departments and agencies”).

Decided April 19, 1996

Reconsideration denied May 6, 1996

Michael J. Kramer, for appellant.

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, Carlton L. Kell, Lisa S. Siegel, Matthew P. Stone, Assistant Attorneys General, for appellee.

The 1991 amendment also provided that the “General Assembly may waive the state’s sovereign immunity from suit by enacting a State Tort Claims Act, in which the General Assembly may provide by law for procedures for the making, handling, and disposition of actions or claims against the state and its departments, agencies, officers, and employees, upon such terms and subject to such conditions and limitations as the General Assembly may provide.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (a). Pursuant to the 1991 amendment, the General Assembly enacted the Georgia Tort Claims Act (OCGA § 50-21-20 et seq.), applicable to causes of action accruing after January 1, 1991, providing for a limited waiver of the sovereign immunity accorded to the State and its departments and agencies. OCGA §§ 50-21-23 (b); 50-21-22 (5). Under the provisions of the Tort Claims Act, the waiver of sovereign immunity accorded to the DPS as a department or agency of the State does not extend to “losses resulting from . . . [ajssault [or] battery.” OCGA § 50-21-24 (7); Christensen v. State of Ga., 219 Ga. App. 10, 12-13 (464 SE2d 14) (1995); Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 71-72 (456 SE2d 642) (1995). Since Miller’s claims against the DPS for alleged violation of state constitutional rights are based on his allegations that the State Patrol officer committed an assault and battery upon his person, there was no waiver of sovereign immunity under the Tort Claims Act. There being no other applicable waiver of sovereign immunity, the trial court correctly dismissed the complaint.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       Miller has abandoned his remaining enumerations of error by failing to support them in his initial brief with argument or citation of authority. Court of Appeals Rule 27 (c) (2); Jackson v. State, 213 Ga. App. 420, 421 (444 SE2d 854) (1994).


author: Beasley, Chief Judge.

text:
    A96A0510.
    NEST INVESTMENTS, INC. v. TZAVARAS.
    (471 SE2d 223)
   Beasley, Chief Judge.

Nest Investments, Inc., brought this suit against Tzavaras and suffered summary judgment in favor of defendant. Nest’s appeal was dismissed due to inexcusable delay in transmission of the record to the appellate court caused by Nest’s failure to pay costs. Tzavaras subsequently moved for an award of attorney fees and litigation expenses under OCGA § 9-15-14.

On February 28, 1995, the trial court granted the motion and, on March 1, entered a supplemental order setting out findings of fact and conclusions of law in support of the award. Nest filed a motion to reconsider both orders. It also filed an application for discretionary appeal of the orders. While that application was pending, the trial court on April 14 granted the motion for reconsideration, thereby vacating and setting aside the February 28 and March 1 orders. Nest then withdrew its appeal application.

Defendant Tzavaras filed a motion for reconsideration of the April 14 order in the trial court and an application for discretionary appeal in this Court. We permitted the appeal, after which the trial court granted Tzavaras’ motion to reconsider, on June 8. Plaintiff Nest petitioned for discretionary appeal of the June 8 order. We granted that application and consolidated it with Tzavaras’ appeal.

By filing the applications for discretionary appeal, the parties moved the lawsuit to another level and divested the trial court of jurisdiction to enter the April 14 and June 8 orders. Robinson v. Dept. of Corrections, 211 Ga. App. 134, 136 (1) (438 SE2d 190) (1993). “The filing of an application for appeal shall act as a supersedeas to the extent that a notice of appeal acts as supersedeas.” OCGA § 5-6-35 (h). According to OCGA § 5-6-46, the notice “has the effect of depriving the trial court of jurisdiction to modify or alter the judgment. [Cits.] . . . [But it] does not act as supersedeas except 'upon payment of all costs in the trial court by the appellant,’ OCGA § 5-6-46 (a), whereas there is no such requirement upon the filing of an application. [Cit.] The trial court costs do not have to be paid until the application is granted and the notice of appeal is filed. . . . OCGA § 5-6-35 (h) provides that it is the filing of the application, which of course occurs much earlier [than the grant], that acts as supersedeas.” (Emphasis in original.) In the Interest of A. R. B., 209 Ga. App. 324 (1), 325 (433 SE2d 411) (1993) (physical precedent only).

Judgments reversed.

Birdsong, P. J., and Blackburn, J., concur.

Decided March 27, 1996

Reconsideration dismissed May 6, 1996

Morris L. Richman, for appellant.

McLarty, Robinson & Van Voorhies, John E. Robinson, Pratt H. Davis, for appellee.


author: Birdsong, Presiding Judge. BLACKBURN, Judge,

text:
    A96A0599.
    THE STATE v. BATTAGLIA.
    (470 SE2d 755)
   Birdsong, Presiding Judge.

Appellee Joseph Dominic Battaglia was charged with DUI and failure to maintain lane. Jury trial was terminated by grant of the State’s mistrial motion; thereafter, the State sought to retry appellee. Appellee filed a plea in bar and motion to dismiss upon double jeopardy grounds which was granted, and the State appeals.

The mistrial ruling occurred when appellee’s counsel was cross-examining the State’s witness, Deputy Higdon. The deputy previously had testified that appellee had provided no medical excuse for being unable to perform field sobriety tests, and had not disclosed that vertebrae in his back were fused. He also had téstified as to appellee’s staggering and slurred speech, and that appellee was wearing jeans, a white dress shirt, and a black jacket. Appellee’s counsel subsequently inquired as to what type of shirt appellee was wearing when he exited his vehicle. When the deputy responded that “I just recall it being a white dress shirt,” appellee’s counsel suddenly pulled up appellee’s shirt revealing a previously concealed body brace and asked, “did he not show you the brace [he was wearing].” Appellee’s brace was a large, wide device containing both plastic and bandages and extended approximately from his groin to his nipple area.

The State immediately requested an out-of-court hearing where it timely moved for mistrial because of appellee’s improper introduction of evidence. The trial court stated that “what [appellee has] done basically is introduce evidence. The jury’s already seen that, and the damage done is irreparable. Once they’ve seen it, we can’t take that away.” The trial court also concluded that the improper conduct “is obviously something [appellee has] contemplated.” The trial judge heard argument from both the State and appellee in chambers. Upon returning to the courtroom, he explained the alternatives considered and then declared a mistrial, after concluding it would be impossible to proceed to trial without an injustice resulting.

On motion for plea in bar and motion to dismiss, the trial judge reviewed his own ruling in granting the mistrial motion, and con-eluded he had erred and should have followed the less drastic alternative of having appellee’s wife testify as to appellee’s bad back.

The State asserts that manifest necessity existed for the granting of the mistrial motion because the conduct of appellee’s counsel was deliberate and designed to circumvent the State’s right of cross-examination. The State argues that, as the Intoximeter test results had been suppressed and the State’s case depended largely on appellee’s inability to complete the field sobriety tests, the effect of the intentional improper demonstration of appellee’s body and concealed body brace was to refute effectively the State’s contention that appellee was unable to perform field sobriety tests because of alcohol consumption. Held:

1. Every party has a right to a thorough and sifting cross-examination of witnesses called against him. See generally OCGA § 24-9-64. However, the conduct of appellee’s counsel in this case exceeded the authorized scope of cross-examination as a matter of law. Under the circumstances here attendant, appellee’s counsel in essence injected, during the course of cross-examination, independent non-testimonial evidence on the part of appellee by exposing a concealed portion of appellee’s body and the brace to the jury. Cf. Little v. State, 135 Ga. App. 772 (2) (219 SE2d 19) (State’s witness was allowed to be recalled to give rebuttal testimony after the defendant exhibited the tattoos on his arms when his counsel was cross-examining the witness during the State’s case-in-chief). The act at issue conveyed evidentiary information to the jury. It not only imparted to the jury the knowledge of the existence of the brace, but tended to authenticate the necessity for appellee’s use thereof and to give rise to the previously non-existent inferences that appellee was wearing a brace during the incident and that he was impaired in his ability to manipulate his body flexibly, which could have negatively affected his driving and sobriety test-taking ability. The act of revealing the concealed brace and a portion of appellee’s constricted torso occurred when appellee was not under oath. Whether the act was deliberate and calculated, it facilitated the improper admission of non-testimonial evidence under circumstances denying the State any opportunity to cross-examine appellee regarding the manner and degree, if any, to which the brace impaired his dexterity. Inherent within the trial court’s ruling was a finding that appellee’s conduct exceeded the bounds of legitimate cross-examination.

Overreaching cross-examination may not be used as a vehicle to enable a party to present non-testimonial evidence without being subject to oath, or to subvert the ability of the opposing party to cross-examine the party proponing such non-testimonial evidence. Within carefully protected legal parameters, the scope of cross-examination lies within the sound discretion of the trial court; this discretion will not be disturbed by an appellate court absent manifest abuse. Thomas v. Clark, 188 Ga. App. 606, 608 (4) (373 SE2d 668). Basically, the confrontation clause “ ‘guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to whatever extent, the defense might wish.’ ” (Citation omitted.) Johnson v. State, 258 Ga. 504, 505 (3) (371 SE2d 651). The trial court did not manifestly abuse its discretion in concluding, at trial, that due to the conduct of appellee’s counsel “it would be impossible to proceed with the trial without injustice resulting.”

Brinson v. State, 201 Ga. App. 80 (1) (410 SE2d 50), cited by appellee, is distinguishable in two significant aspects. First, the glasses were proffered for jury examination only after the defendant had taken the stand in his own defense and had testified regarding his wearing of prescription glasses. Secondly, there was no exposure of a concealed part of defendant’s body during the course of the proffer. Brinson, supra, is not controlling.

2. However, our holding that the trial court did not manifestly abuse its discretion, at trial, in determining the conduct of appellee’s counsel was prohibited and exceeded the legitimate scope of cross-examination is but a threshold ruling. There remains the question whether retrial of appellee would constitute double jeopardy.

Here the jury was impaneled and sworn so jeopardy attached. Oliver v. State, 216 Ga. App. 76, 77 (453 SE2d 746). The motion for mistrial was initiated by the State. Thus, “[rjetrial is permissible only if a manifest necessity existed for the declaration of the mistrial lest otherwise the ends of public justice be defeated; the existence of manifest necessity is to be determined by weighing the defendant’s right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances. While the trial court exercises sound discretion as to these matters, the power of the trial judge to interrupt the proceedings on his own or [on] the prosecutor’s motion by declaring a mistrial is subject to stringent limitations. However, manifest necessity for a mistrial can exist alongside less drastic alternatives so long as the record discloses that the trial court considered alternatives before declaring mistrial. If[, as in this case,] a mistrial is declared without a defendant’s consent or over his objection, the defendant may be retried only if there was a manifest necessity for the mistrial.” (Citations and punctuation omitted.) Dotson v. State, 213 Ga. App. 7, 8 (443 SE2d 650); accord Smith v. State, 263 Ga. 782, 783 (1) (439 SE2d 483); compare Stevens v. State, 215 Ga. App. 718 (1) (452 SE2d 176). “A manifest necessity to declare a mistrial may exist ‘under urgent circumstances,’ [cit.], such as where ‘an impartial verdict cannot be reached, or (where) a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial.’ [Cit.] Because of £ “the severe consequences of ordering a mistrial without the accused’s consent,” (cit.),’ [cit.], a trial court should give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives, calling for a recess if necessary and feasible to guard against hasty mistakes, [cit.].” Smith, supra at 783 (1).

In granting appellee’s plea in bar and motion to dismiss, the trial judge in essence held that he had erred in granting the State’s mistrial motion and opined: “While defense counsel’s conduct was improper (certainly resulting in mistrial if something similar had been done by the prosecutor), Georgia law apparently allows much more leeway to the defendant in a criminal trial in protecting his constitutional rights of avoiding double jeopardy.” This threshold analysis is in error. “The defendant’s right to a fair trial is not paramount to the State’s right to a fair trial. The trial court has the duty to ensure a fair trial to all parties in a case and has as much authority to grant a mistrial where [an] injustice is caused to the State as where injustice is caused to the defendant.” (Emphasis supplied.) Sinkfield v. State, 217 Ga. App. 527, 528 (458 SE2d 664). Thus, if appellee’s conduct “certainly” would have resulted in a mistrial if done by the prosecution, it also perforce (Sinkfield, supra) would have resulted in the legitimate granting of a mistrial when done by appellee through conduct of trial counsel. This error in analysis taints the remaining holdings of the trial judge and, standing alone, necessitates case reversal and remand for reconsideration after applying the attendant facts to the correct legal standards here applicable.

The trial court, after recognizing that the conduct of trial defense counsel “was flagrantly unfair,” concluded that, although it had considered less drastic alternatives before declaring a mistrial, it should have followed one alternative suggested by the defense. Specifically, it should have delayed its ruling to determine if appellee’s wife could testify regarding his wearing of the back brace and identify the brace in court, and whether medical testimony would be introduced regarding appellee’s back problems. The trial court speculated that “in such scenario [it] probably would not have granted the prosecutor’s motion for a mistrial, but merely admonished defense counsel in front of the jury and given a curative instruction to the jury.” (Emphasis supplied.) The trial court opined “the court cannot conclude that the conduct was so prejudicial that it would have been impossible to proceed with the trial without injustice resulting.”

The trial court erroneously focused on the ultimate admissibility of the non-testimonial evidence at issue, the back brace, and failed to consider the equally cogent issue of the improper admission by appellee himself of non-testimonial evidence under circumstances depriving the State of any thorough cross-examination of appellee. This is not a situation where the scope of cross-examination merely was limited; rather, by appellee’s ploy, the State was denied entirely any opportunity to cross-examine the proponent of the non-testimonial evidence. “ ‘ “Cross-examination of the witness of an adversary is a substantial right, the preservation of which is essential to a proper administration of justice, ‘and extends to all matters within the knowledge of the witness, the disclosure of which is material to the controversy,’ and it is error to deny or abridge this right.” ’ ” (Citation omitted.) Snelling v. State, 215 Ga. App. 263, 264 (1) (a) (450 SE2d 299). The unprofessional conduct of appellee’s counsel of exhibiting appellee so as to present non-testimonial evidence to the jury allowed appellee to present evidence personally to the jury without being called as a witness, thereby in effect depriving the State of any opportunity to cross-examine the accused. The alternative procedures, which the trial court concluded should have been followed, would not restore the State’s opportunity of cross-examination, and thereby would not have accorded the State its right to a fair trial. “However, ‘ “manifest necessity for a mistrial can exist alongside less drastic alternatives, so long as the record discloses that the trial court considered alternatives before declaring mistrial.” ’ ” (Citation and emphasis omitted.) Dotson, supra at 8 (1). Under the totality of the circumstances, the trial court did not err in originally declaring a mistrial, but did err in subsequently granting appellee’s plea in bar and motion to dismiss. Stevens v. State, supra, is distinguishable. In this case, “ ‘[djefense counsel [improperly] aired . . . prejudicial [non-testimonial] evidence before the jury, the possible impact of which the trial judge was in the best position to assess [at the time the mistrial motion was made]. The trial judge did not act precipitately in response to the prosecutor’s request for a mistrial. . . . We are therefore persuaded by the record that the trial judge acted responsibly and deliberately, and accorded careful consideration to [appellee’s] interest in having the trial concluded in a single proceeding. Since[, at trial,] he exercised “sound discretion” in handling the sensitive problem of possible juror bias created by the improper [introduction of appellee’s non-testimonial evidence by defense counsel free from the ultimate test of witness credibility, that is, the thorough and sifting cross-examination of appellee], the mistrial order is supported by the “high degree” of necessity which is required in a case of this kind. . . . [I]n these circumstances, “the public’s interest in fair trials designed to end in just judgments” must prevail over the defendant’s “valued right” to have his trial concluded before the first jury impaneled.’ ” (Citation omitted.) Phelps v. State, 187 Ga. App. 236, 237 (369 SE2d 506).

Decided April 12, 1996

Reconsideration denied May 6, 1996

Sara D. Yarbrough, Solicitor, for appellant.

Burkett, Schneider & Mumford, William Schneider, for appellee.

Additionally, when, as in this case, the defendant is responsible for the egregious error resulting in a mistrial, and the trial judge gives consideration to reasonable alternatives after hearing argument prior to the grant of mistrial, the defendant should not be allowed to object to a retrial on double jeopardy grounds. See McGarvey v. State, 186 Ga. App. 562, 563 (368 SE2d 127) (dicta); State v. Abdi, 162 Ga. App. 20, 22 (288 SE2d 772), aff’d Abdi v. State, 249 Ga. 827 (294 SE2d 506). This is consistent with the well-established legal principle that “ ‘the law will not permit an individual to profit from his own wrong.’ ” (Citation omitted.) Williams v. State, 199 Ga. App. 122, 124 (3) (404 SE2d 296).

For each of the above reasons, the trial court erred in granting the plea in bar and motion to dismiss. Accordingly, judgment is reversed and the case remanded for entry of a ruling consistent with this opinion.

At oral argument, the State’s appellate counsel degraded the solemnity of the appellate proceedings by appearing before this Court wearing, under her jacket, a brace which she thereafter purposely displayed to this Court. This brace was not an appellate exhibit in this case, and its display in this manner served no legitimate appellate function. By wearing this brace, counsel made an undignified and unprofessional appearance before this Court in flagrant disregard of traditional appellate decorum. In appearing in his or her professional capacity before a tribunal, a lawyer shall not “engage in undignified or discourteous conduct which is degrading to a tribunal.” Directory Rule 7-106 (C) (6). This Court will not condone such conduct.

Judgment reversed and case remanded with direction.

Beasley, C. J., concurs. Blackburn, J., concurs specially.

BLACKBURN, Judge,

concurring specially.

I concur fully with the majority opinion except for the final paragraph concerning oral argument.


text:
    A96A0644.
    SULLIVAN et al. v. HORN.
    (470 SE2d 765)
   Andrews, Judge.

Ed Sullivan and William Foreman appeal the trial court’s granting of summary judgment to Darrell Horn on their claim of tortious interference with an employment relationship. Sullivan and Foreman argue the trial court erred in determining that Horn committed no independently wrongful or unlawful acts and did not act maliciously in bringing about Sullivan’s and Foreman’s terminations from Office Depot. We disagree and affirm the judgment of the trial court.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. ... A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” (Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Construing the evidence, as we must, in favor of Sullivan and Foreman as non-movants on summary judgment, the record shows that in March 1992, Sullivan assumed the manager’s position of a Savannah Office Depot store with a history of productivity problems. In January 1992, William Foreman had been transferred to this same store, and Sullivan later made him one of his assistant managers. Darrell Horn was the district manager in charge of the Savannah store. This store was one of thirteen stores in Georgia, South Carolina, and North Carolina for which Horn was responsible.

At some point after they began working in the Savannah store, Sullivan and Foreman claim that Horn, for no apparent reason, took a dislike to them. As a result of this personal animosity, they allege Horn deliberately thwarted Sullivan’s efforts to improve the store’s performance and also forced him to give Foreman poor performance ratings and unjustified reprimands. Specifically, they contend Horn attempted to sabotage their attempts to turn the store around by diverting payroll funds away from their store, assigning employees meaningless tasks the day before the regional manager’s inspection, thereby causing a poor evaluation, “using hostile, malicious, subjective judgments to assign non-acceptable scores to the plaintiffs’ evalnations,” and failing to offer practical suggestions or solutions to problems. Sullivan and Foreman do not deny the accuracy of their performance evaluations, but claim instead that Horn’s actions caused them to fail.

Larry Phillips, the regional manager, decided to discharge Sullivan after Sullivan had received several written warnings and a final warning. Phillips testified in his deposition that he decided to fire Sullivan as a result of his tour of the store in October 1992, Horn’s checklists, other manager’s audits, and the “customer secret shopper” reports.

Phillips’ decision to discharge Foreman was due primarily to an incident involving “top stock” violations. In December 1992, Horn asked Foreman if certain “top stock” violations had been corrected. Foreman told Horn he believed these violations had been taken care of. But, when Horn visited the store several days later, he saw that not only had these top stock violations not been corrected, but also there were four additional violations. Phillips, Horn, and Harold Martin, the regional human resources manager, all agreed that Foreman should be fired because he was on final warning and had lied about correcting the violations.

Sullivan and Foreman filed a complaint against Horn in which they alleged actual and constructive fraud, breach of fiduciary duty and bad faith. They filed an amended complaint alleging tortious interference with their employment relationship. The trial court dismissed the claims for actual and constructive fraud and granted Horn’s motion for summary judgment on the remaining claims. Sullivan and Foreman appeal only the granting of summary judgment on their tortious interference claim.

In an action for tortious interference with an employment relationship that is terminable at will, the plaintiff must show that “a party with no authority to discharge the employee, being activated by an unlawful scheme or purpose to injure and damage him, maliciously and unlawfully persuades the employer to breach the contract with the employee.” McElroy v. Wilson, 143 Ga. App. 893, 894 (240 SE2d 155) (1977).

The trial court found this case to be nothing more than a “personality conflict between co-employees.” We agree, noting that the trial court’s order granting Horn’s motion for summary judgment is well reasoned, thorough and complete. We expressly adopt its conclusions as our own. As the trial court pointed out, Sullivan and Foreman do not dispute that there were problems or that the poor performanee evaluation given by Phillips was inaccurate. Rather, they claim Horn was responsible for these problems because he kept the store from hiring more staff. But, both Sullivan and Foreman admitted this was pure speculation and they could point to no evidence in support of these allegations. On the other hand, Horn submitted evidence that budgets and staffing were determined at the corporate level and he was not responsible for those decisions.

Decided April 17, 1996

Reconsideration dismissed May 6, 1996

Savage & Turner, Robert B. Turner, for appellants.

Jackson, Lewis, Schnitzler & Krupman, Stephen X. Munger, Emily S. Blumenthal, for appellee.

Accordingly, the trial court correctly concluded that Sullivan and Foreman were unable to establish that Horn acted maliciously because the reports critical of Sullivan’s and Foreman’s job performances were truthful and were part of Horn’s responsibilities as district manager. Therefore, we find that Sullivan and Foreman were unable to establish an essential element of their claim and the trial court did not err in granting Horn’s motion for summary judgment on plaintiff’s claim for tortious interference with employment relations.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       “Top stock” is the term used for merchandise stacked on upper shelves. Correcting these violations is a primary concern because they are a safety hazard to customers and employees.


text:
    A96A0009.
    WILLIAMS v. THE STATE.
    (470 SE2d 922)
   Ruffin, Judge.

A1 Williams pled guilty to stalking. He appeals from the judgment of conviction, sentence and the denial of his motion to withdraw his guilty plea. Because the trial court erred in denying Williams’ motion to withdraw his guilty plea, we reverse.

The record shows that at his arraignment Williams, acting pro se, originally pled not guilty to stalking. Immediately before the beginning of his trial, Williams attempted to negotiate a plea bargain with the prosecutor, offering to plead guilty in exchange for a probated sentence or the imposition of a fine. Williams and the prosecutor disagree as to the prosecutor’s response to Williams’ offer. Williams testified that the prosecutor agreed to recommend that he receive “probation or [a] fine . . . whatever it took to whatever extent it took to handle the problem [sic].” On the other hand, the prosecutor stated that he never agreed to probation, but instead advised Williams that he would recommend jail time. After the jurors were empaneled, Williams informed the prosecutor that he wanted to change his plea to guilty. Williams then signed the accusation, the prosecutor informed the trial court that Williams changed his plea to guilty, and the sentencing hearing began.

In the sentencing hearing, the prosecutor set forth the facts supporting the conviction, and the victim, the arresting officer, and the victim of a previous similar crime testified. The court then sentenced Williams to serve 12 months, imposed a $1,150 fine, restrained him from contact with the victim, ordered that he be held in the Toombs County Jail if released early on parole until he paid the fine in full, and banished him from Toombs County upon completion of the sentence.

Williams subsequently moved to withdraw his guilty plea on the grounds that the State reneged on its agreement to recommend probation and a fine and the court improperly considered evidence of similar transactions. Williams also alleged that the court violated several Uniform State Court Rules in accepting his guilty plea.

1. In eight enumerations of error, Williams contends the trial court erred in accepting his guilty plea and denying his motion to withdraw the plea. Williams contends that the plea was not knowingly and voluntarily entered and that the court accepted the plea in violation of Uniform State Court Rules 33.2, 33.3, 33.7, 33.8, and 33.11. In one of those enumerations, Williams also contends the trial court erred in failing to allow him to withdraw the plea because the sentence was illegal on its face. However, the remedy for an illegal sentence is a remand to the trial court for resentencing, not withdrawal of the guilty plea. Threatt v. State, 211 Ga. App. 630 (3) (a) (440 SE2d 61) (1994). Thus, this particular enumeration of error is without merit.

“Where voluntariness of a guilty plea is challenged, there must be ‘a record of the guilty plea hearing adequate for the reviewing court to determine whether (1) the defendant has freely and voluntarily entered the plea with (2) an understanding of the nature of the charges against him and (3) an understanding of the consequences of his plea.’ [Cits.]” Green v. State, 265 Ga. 263 (1) (454 SE2d 466) (1995). “When a defendant enters a plea of guilty and subsequently challenges the validity of the guilty plea, the State may meet its burden of demonstrating the plea was intelligently and voluntarily entered by two means, (1) showing on the record of the guilty plea-hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) filling a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” (Citations and punctuation omitted.) Wood v. State, 190 Ga. App. 179, 180 (1) (378 SE2d 520) (1989). The requirements of Court Rule 33, governing the acceptance of defendants’ pleas, are mandatory. State v. Evans, 265 Ga. 332 (1) (454 SE2d 468) (1995). However, because Williams challenged his guilty plea after the court pronounced sentence, the plea could be withdrawn only if necessary to correct a manifest injustice. Uniform State Court Rule 33.12; Evans, supra at 336.

In this case, there was no guilty plea hearing. The record shows that the trial court accepted Williams’ guilty plea based solely on the announcement of the prosecutor and then immediately proceeded to sentence Williams, without any inquiry as required by Court Rules 33.2, 33.7, and 33.8. The State contends that the record otherwise demonstrates that Williams’ guilty plea was knowing and voluntary.

The State argues that the court advised Williams of his right to counsel at the arraignment and that Williams waived that right by failing to request appointed counsel and by subsequently announcing to the court that he had retained counsel and failing to have that attorney present at trial. The State contends Williams was adequately advised of the charge against him because the charge was included in the text of the accusation he signed; the prosecutor read the charge from the accusation at the hearing on similar transaction evidence; and the prosecutor explained the factual basis for the charge at the sentencing hearing. The State also contends that because Williams was previously convicted of stalking and therefore was not new to the criminal justice system, he was aware of the consequences of his guilty plea, i.e., he was waiving the full panoply of rights set forth in Court Rule 33.8 (B) and he could be sentenced to as much as one year in prison.

We find that the foregoing does not affirmatively show that Williams’ plea was intelligent and voluntary. While Williams might have been advised of certain rights at the time he entered his initial plea of not guilty, the State has not met its burden of affirmatively showing that at the critical time, when Williams entered his guilty plea, he was fully aware of all the constitutional rights he waived in entering the plea and the consequences of the waiver. We will not presume from Williams’ previous conviction that he was fully aware of his constitutional rights at the critical time in this case. At any rate, it is not altogether clear that as a result of his previous experience as a criminal defendant Williams was apprised of the constitutional rights at issue here since he did not plead guilty in the previous case but instead stood trial.

It is particularly troubling that Williams was not represented by counsel when the court accepted the guilty plea. The record does not reveal any formal waiver of Williams’ right to counsel, and even if he did so impliedly, Court Rule 33.2 (B) provides that “[a] defendant without counsel should not be called upon to plead to any offense until he has had a reasonable time to consider his decision. When a defendant without counsel tenders a plea of guilty . . . to an offense, the court should not accept the plea unless it is reaffirmed by the defendant after a reasonable time for deliberation, following the advice from the court required in section 33.8.” This the trial court did not do.

Furthermore, because the court failed to perform the inquiry set forth under Court Rule 33.7 to ascertain whether the plea was voluntary, it was unaware of the discussions between the prosecutor and Williams regarding a plea agreement and therefore failed to determine what impact those discussions had on Williams’ sudden decision to change his plea to guilty.

We find that the trial court’s failure to follow straightforward court rules in accepting Williams’ guilty plea was manifestly unjust, particularly given the fact that Williams was not represented by counsel at the time. Thus, the trial court abused its discretion in denying Williams’ motion to withdraw his guilty plea.

2. Williams also contends his sentence was unlawful in several respects: (1) the fine imposed exceeded $1,000; (2) the court abused its discretion in ordering that he be held in the Toombs County Jail, if released early on parole, until the fine is paid in full; and (3) he was improperly sentenced under both OCGA § 17-10-3 (a) (1) and (2). While it might appear unnecessary to consider these contentions in light of our holding above, because of the likelihood that these issues will arise again if Williams is resentenced for this offense, we will consider them.

“It is well-established that there is a presumption that sentence was correctly imposed, and the burden of showing that a sentence was not correctly imposed is with the party who asserts its impropriety.” (Citations and punctuation omitted.) State v. Freeman, 198 Ga. App. 553, 557 (3) (402 SE2d 529) (1991).

(a) Williams argues that the $1,150 fine exceeded the maximum fine of $1,000 authorized by OCGA § 17-10-3 (a) (1), applicable to misdemeanor convictions, and that the State failed to offer proof of the $150 penalty. However, the State contends that the additional $150 represented state and county statutorily mandated assessments calculated based upon the amount of the fine and therefore no offer of proof was necessary. See OCGA § 15-21-73 (a) (1). We agree. Furthermore, the clear terms of OCGA § 15-21-73 (a) (1) provide that the penalty at issue “shall be imposed as an additional penalty. . . .” (Emphasis supplied.) Thus, Williams’ contentions are without merit.

(b) The trial court also did not abuse its discretion in ordering that Williams be held in the Toombs County Jail, if released early on parole, until the fine is paid in full. Imprisonment under such circumstances is considered a means of enforcing payment of a fine, not punishment. Lee v. State, 103 Ga. App. 161 (118 SE2d 599) (1961); Farris v. City of Columbus, 109 Ga. App. 2 (135 SE2d 59) (1964). Thus, in ordering Williams to be held until payment of the fine, the trial court did not sentence him to confinement in excess of the misdemeanor sentencing statute.

(c) However, the record clearly shows that the trial court improperly sentenced Williams under the alternative subsections of OCGA § 17-10-3 (a). In addition to imposing a fine, the court also sentenced Williams to serve 12 months in the “Georgia Penitentiary” or “such other place as the Director of Corrections may direct. . . .” According to subsection (1) of OCGA § 17-10-3 (a), a defendant can be sentenced to pay a fine of up to $1,000 or to “confinement in the county or other jail, county correctional institution, or such other places as counties may provide for maintenance of county inmates, for a total term not to exceed 12 months, or both[.]” Subsection (2) authorizes only “confinement under the jurisdiction of the Board of Corrections in a state or county correctional institution or such other institution as the Department of Corrections may direct, for a determinate term of months which shall be more than six months but shall not exceed a total term of 12 months.” OCGA § 17-10-3 (a) (2). Because these provisions are alternative, Williams could not lawfully be sentenced to pay a fine and to confinement under the state’s jurisdiction.

3. Finally, Williams enumerates as error the trial court’s decision to permit the State to introduce evidence of similar transactions. Williams argues that he was not given proper notice of the transactions at least ten days before trial as required by Uniform State Court Rule 31.1 and that the court failed to make a determination, on the record, that the three-pronged test set forth in Williams v. State, 261 Ga. 640 (2) (409 SE2d 649) (1991), had been met. Williams also contends that after the State’s offer of proof, the court impermissibly shifted the burden to him to convince the court that the similar transaction evidence should not be admitted.

We note at the outset that the trial court did not err in considering the similar transaction evidence in sentencing Williams. The State is not required to give pretrial notice of evidence in aggravation of punishment in sentencing misdemeanor cases. Trotter v. State, 179 Ga. App. 314 (4) (346 SE2d 390) (1986). Moreover, Uniform State Court Rule 31.3 (F) expressly states that Rule 31.3 does not apply to sentencing hearings. Nor has Williams shown that the court may not consider the evidence in future proceedings.

Contrary to Williams’ contention that he did not receive ten days’ notice of the similar transactions, the record shows that notices of his prior conviction and a previous incident involving the victim were filed on July 19, 1995 and July 21, 1995, respectively, and the trial would have commenced, had there been a trial, on August 2, 1995. Therefore, Williams’ claim of improper notice is without merit.

Decided May 6, 1996.

M. Francis Stubbs, for appellant.

David B. Pittman, Solicitor, for appellee.

Moreover, in ruling on the admissibility of the similar transactions, the trial court stated on the record that it found “that the State [had] carried its burden which is required to be permitted to introduce these similar transactions during the trial of the case. . . .” The record shows that the elements required by Williams were addressed at the hearing. Thus, the trial court’s statement constitutes a proper determination on the record that the State satisfied the requirements of Williams. See Barry v. State, 214 Ga. App. 418 (1) (448 SE2d 243) (1994).

With respect to Williams’ contention that the trial court erred in shifting the burden to him to show that the similar transaction evidence should not be admitted, the “primary consideration [is] whether defendant was deprived of any substantial rights in the State’s execution of the intent of. . . Rule [31.3]. [Cit.] ‘The burden is on the party claiming error not only to show error, but error which injured him, and unless the error results in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right, an appellate court will not reverse.’ [Cit.] We find substantial compliance with . . . Rule [31.3] [cit.], and no reversible error.” (Emphasis omitted.) Houston v. State, 187 Ga. App. 335, 338 (2) (370 SE2d 178) (1988). The State cites no persuasive authority, and we have found none, which requires a defendant to convince the trial court that similar transaction evidence should not be admitted following the State’s showing. However, because the record in this case demonstrates that the trial court determined that such evidence would be admissible at trial based solely on the State’s satisfaction of Williams and not Williams’ failure to prove otherwise, there was no error.

Judgment reversed.

Johnson, J., concurs. McMurray, P. J, concurs in the judgment only.


text:
    A96A0209.
    WILLIAMS v. THE STATE.
    (471 SE2d 258)
   Ruffin, Judge.

A jury convicted Keith Williams of robbery by force, and the trial court denied his motion for new trial. Williams appeals, citing as error the court’s charge to the jury and the sufficiency of the evidence. For reasons which follow, we affirm.

Construed most favorably to uphold the verdict, the evidence at trial showed that on the evening of the robbery, Williams and a companion, Joseph Huff, sold a $20 piece of purported crack cocaine to the victim. When the victim returned home later that evening, he was met in his front yard by Huff and Williams. Huff approached the victim and demanded his money. When the victim refused, Huff produced a knife and told Williams to hold the victim’s arms. While Williams was holding the victim, Huff searched his pockets and removed approximately $180. Williams and Huff then fled the scene. The victim called the police and identified Williams, whom he had known for approximately twenty years, as one of the robbers.

Huff, who previously pled guilty to armed robbery, testified at trial as a State’s witness. He stated that when the victim paid for the cocaine, both he and Williams noticed he had a $100 bill. Huff further testified that after the transaction, he and Williams discussed robbing the victim. Huff stated that after the robbery, he gave Williams some of the money they took from the victim.

1. Williams asserts that the trial court erred in refusing his request to charge the jury on mistake of fact. In his brief, Williams contends that at the time of the robbery he thought Huff and the victim were fighting, and he held the victim’s arm in an attempt to stop the fight. He argues that because he did not know Huff was robbing the victim, the trial court should have charged the jury on his defense of mistake. We find, however, that the evidence did not support a charge on mistake.

OCGA § 16-3-5 provides that “[a] person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.” In this case, the evidence did not show that Williams’ participation in the robbery was by mistake; rather, it showed that Williams denied participating in the act that constituted robbery. Williams testified that when he approached Huff and the victim, they were arguing about the cocaine the victim purchased. While he admits he briefly grabbed the victim’s hand to break up the fight, he also testified that he released the hand before the robbery took place. Because Williams denied holding the victim during the robbery, he cannot now claim he participated in the robbery by mistake. One cannot deny committing an act, while at the same time argue he committed the act by mistake. Accordingly, “[t]he evidence adduced at trial clearly did not authorize a charge on mistake of fact, and the trial court was correct in refusing to give the charge. This enumeration is without merit. [Cit.]” Sims v. State, 197 Ga. App. 214, 218 (7) (398 SE2d 244) (1990). Jury charges should be submitted on the bases of evidence and applicability, not on the bases of habit and hope.

2. Williams asserts that the trial court erred in failing to charge the jury as follows: “A person is justified in using force which is intended or likely to cause death or great bodily harm if he reasonably believes such force is necessary to prevent death or great bodily injury to a third person (or to other persons).” We disagree.

We find here, as we did in Division 1, that the evidence did not support the requested charge. Because Williams does not explain who he was using force in defending, we can assume only that he argues he was using force against the victim to defend his accomplice, Huff. However, Williams cannot deny participating in the robbery, while at the same time argue his participation was justified because he was defending Huff. Because there was no evidence showing that at the time of the robbery Williams held the victim to defend Huff, the charge was not warranted. See Fields v. State, 167 Ga. App. 816 (3) (307 SE2d 712) (1983). Furthermore, because there was no evidence presented that the victim intended to cause death or great bodily harm to Huff, Williams’ request to charge was not properly adjusted to the evidence. See Pruitt v. State, 211 Ga. App. 654 (2) (440 SE2d 248) (1994). Accordingly, we find no error.

3. Williams asserts that the trial court erred in failing to give his requested charge that the testimony of an accomplice must be corroborated by other evidence. OCGA § 24-4-8 requires corroborating evidence in “felony cases where the only witness is an accomplice. . . .” In this case, however, Williams’ accomplice was not the only witness. The robbery victim and the investigating officer also testified as to Williams’ participation in the robbery. Because Williams’ guilt was not based solely upon Huff’s testimony, the court did not err in failing to give the requested charge. Maxwell v. State, 170 Ga. App. 831 (2) (a) (318 SE2d 650) (1984).

4. Finally, Williams challenges the sufficiency of the evidence. Contrary to Williams’ contention, we find the evidence was sufficient to show that he was not merely present at the scene, but was an actual participant in the robbery. See Vick v. State, 211 Ga. App. 735 (1) (440 SE2d 508) (1994). Furthermore, although there was conflicting testimony as to Williams’ participation in the robbery, “ ‘(i)t is the function of the jury, not the appellate court, to resolve conflicts in the testimony and determine the credibility of the witnesses. (Cits.)’ [Cit.]” Id. at 736. The evidence was sufficient to authorize the jury’s verdict that Williams is guilty of robbery by force beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Vick, supra.

Judgment affirmed.

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

Decided May 6, 1996.

Robert M. Bearden, Jr., for appellant.

Charles H. Weston, District Attorney, Wayne G. Tillis, Thomas J. Matthews, Assistant District Attorneys, for appellee.


author: Birdsong, Presiding Judge.

text:
    A96A0238.
    HITCHCOCK v. McPHAIL et al.
    (471 SE2d 256)
   Birdsong, Presiding Judge.

Mark Hitchcock sued Paula McPhail for injuries allegedly received when his Toyota pickup truck collided with McPhail’s car. The trial court granted a directed verdict to defendant McPhail, and plaintiff Hitchcock appeals.

Paula McPhail was driving south on Covington Highway in DeKalb County at a lawful speed of about 45 mph, when Mark Hitchcock pulled out from a stop sign at Midvale Road to turn left into the northbound lanes of Covington Highway. Covington Highway is a five-lane highway with two northbound lanes, two southbound lanes, and one center turn lane. Hitchcock contends that before entering the highway, he complied with his duty to “first [ascertain] that such movement can be made with safety” under OCGA § 40-6-48 (1), in that he ascertained he had time to safely cross the two southbound lanes of Covington Highway. When he began his turn, he saw that McPhail’s car and a John Doe vehicle were at least 1,000 feet away from him and were traveling about 45 mph, but he did not realize the John Doe vehicle was traveling in the center turn lane until he pulled onto Covington Highway. McPhail’s car was in the inside southbound lane of Covington Highway next to the center turn lane. Hitchcock testified that when he was crossing the southbound lanes of the highway, he was surprised to see that the John Doe vehicle was traveling in the center turn lane, and he was forced to slow down and let the John Doe vehicle pass in front of him before he could complete his turn. Hitchcock contends that he had successfully crossed the two southbound lanes and had fully entered the center lane and was looking over his right shoulder to make sure that traffic coming from his right was still clear, when McPhail negligently swung into the turn lane and their vehicles collided. Hitchcock’s pickup rested on McPhail’s car. A police officer testified that when she arrived at the scene, McPhail’s car was completely in the center turn lane and Hitchcock’s truck was partially in the center turn lane and partially in the northbound lane of Covington Highway.

Hitchcock contends directed verdict for McPhail was improper because there is evidence McPhail saw his truck enter the southbound lanes to turn left in front of her, and that although she had sufficient time to apply the brakes when she saw he had to hesitate to let the John Doe vehicle pass in front of him, she did not apply her brakes but instead accelerated into the center turn lane where she collided with Hitchcock. He contends that from the evidence the jury can infer McPhail’s failure to apply her brakes and stop for him was negligent, and that her choice, instead, to swerve into the center turn lane was negligent. Held:

A directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50 (a). In determining the propriety of a directed verdict, the evidence is construed most favorably to the non-movant. Blum v. RES Assoc., 211 Ga. App. 543, 544-545 (439 SE2d 712); Lawson v. Athens Auto Supply &c., 200 Ga. App. 609, 613 (5) (409 SE2d 60).

Construing the evidence most favorably to non-movant Hitchcock, we yet find, as did the trial court, that the evidence demands a conclusion that Hitchcock failed in his first duty, which was to show that before turning onto Covington Highway from a stop sign he “first ascertained that such movement can be made with safety.” OCGA § 40-6-48 (1). Although Hitchcock contends he did ascertain that he could turn onto the highway with safety, the evidence demands a finding that Hitchcock was mistaken in thinking he had time to cross three lanes of traffic into the northbound lane before any southbound vehicle reached the intersection from which he turned. Moreover, he was mistaken in failing to realize that the John Doe vehicle was traveling in the center turn lane and would travel so far as fast as it did so as to force him to halt or hesitate in the southbound lanes to let that vehicle pass before he could proceed into the turn lane. Furthermore, both McPhail’s vehicle and the John Doe car were obviously and indisputably so close to the Midvale Road intersection when Hitchcock entered Covington Highway that when he was forced to hesitate to let the John Doe vehicle pass in the center turn lane, he was simply unable to make a safe turn before McPhail came upon him. Speculation that Hitchcock’s actions were conceivably reasonable under the circumstances, which might have been a question for the jury, is a contradiction in terms for he was indisputably mistaken in ascertaining that he could make the turn safely. See McNeely v. Harrison, 138 Ga. App. 310, 313 (226 SE2d 112).

Hitchcock contends McPhail was negligent in failing to apply her brakes, but it is sheer speculation to suggest that a collision would not have occurred if she had applied her brakes. Against the evidence of Hitchcock’s own negligence, there is no affirmative proof of negligence on McPhail’s part to form a dispute for the jury. Negligence is not to be presumed, but is a matter for affirmative proof; in the absence of affirmative proof of negligence, we must presume performance of duty and freedom from negligence. Bell v. Leatherwood, 206 Ga. App. 550, 551 (425 SE2d 679). The fact that when she saw Hitchcock’s vehicle in some position before her she accelerated and swerved into the center turn lane instead of applying brakes is not “affirmative proof,” id., of negligence on her part, in view of the undisputable facts that Hitchcock entered her lane of travel when he had mistakenly thought he could safely make the turn and mistakenly did not know the John Doe vehicle was traveling in the turn lane.

Decided May 6, 1996.

John C. McCaffery, for appellant.

Crim & Bassler, Terence D. Williams, Mitchell S. Evans, Downey & Cleveland, George L. Welborn, Freeman & Hawkins, Warner S. Fox, Phyllis V. Harris, for appellees.

Ordinarily it might invade the province of the jury (see Cagle v. Ameagle Contractors, 209 Ga. App. 712, 713 (434 SE2d 546)) to make such a conclusion, but the evidence demands a conclusion that Hitchcock negligently ascertained he could enter the highway safely, and Hitchcock has cited to us no evidence from which a jury could reasonably find that McPhail’s only non-negligent choice in the circumstances of this case was to apply her brakes. That is, at best the jury could only speculate that in the exigent circumstances negligently created by Hitchcock, defendant McPhail’s decision to swerve into the center lane was “affirmative negligence” which was comparatively greater than Hitchcock’s proven negligence so as possibly to entitle him to an award of damages from her. See Union Camp Corp. v. Helmy, 258 Ga. 263 (367 SE2d 796). The trial court did not err in directing a verdict in this case.

Judgment affirmed.

Beasley, C. J, and Blackburn, J., concur.


text:
    A96A0336.
    NIZER v. THE STATE.
    (471 SE2d 254)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with four counts of aggravated assault. His pretrial motion to suppress a custodial statement was denied after a Jackson-Denno (Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908)) hearing. The evidence introduced at that hearing revealed the following: Defendant entered an auto parts store just after opening. He pointed a handgun at Johnny Barefoot, the manager, and also at Jacqueline Bailey, an employee. When defendant discovered that there was very little money in the cash drawer, he shot the manager, who sustained a very serious head injury. Defendant then fled into nearby woods, shedding a green Celtics jacket. Officers F. M. Becker and J. M. Eisner of the DeKalb County Police Department brought one trained canine, a “Belgian Malinois,. . . about 70 pounds,” which alerted to the defendant, hiding in a dried-up creek. “The dog was on a 30-foot lead[, and defendant was] another 30 feet [away]. . . .” Officer Becker told defendant “get down on all fours and to come to my location, [whereupon Officer Becker] secured the dog, [and] told [defendant] to stand up.” Officer Becker “first advised [defendant] that the dog was a biting dog. And [he] advised [defendant], warned him that if he made an aggressive attempt towards me or attempted to flee, that the dog was an apprehension dog.” Officer Becker denied threatening defendant with the dog, other than giving these warnings. Officer Becker’s weapon “was holstered.” Officer Becker had no further conversation with defendant until “after Officer Eisner had come and handcuffed him, [when Officer Becker] asked the suspect where the gun was, and [defendant] said that it was with his jacket.” No Miranda (Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694)) warnings had been given at this point. Officer Becker clarified, “I told him that I couldn’t locate the weapon. He said he would take us to the weapon.” Defendant told the police, “he had run across the front of where the entrance was to the storage bin and that he had thrown the weapon in the kudzu that was located on the right side.” However, neither the police dog nor a team of police officers equipped with a metal detector was successful in locating the weapon. Officer Eisner affirmed that he did not give defendant any Miranda warnings. At police headquarters, defendant was read his rights by Detective Mark Anglin, in the presence of Detective Hunt. Defendant waived his rights in writing, “at which time [defendant] made a statement to [Detective Hunt].”

According to defendant, after he had been handcuffed at the scene by Officer Eisner, Officer “Becker questioned me about a weapon, at which time I told him I knew nothing about. And then I was led away to a police car.” After defendant again denied knowing anything about a weapon or the shooting, Officer Becker “told me either I was going to help him find the weapon and we do this as quickly as possible, or he would have the officers uncuff me and let the dog capture me. . . . The officers started to uncuff me and then I said, Okay, Okay, I’ll talk. And that’s when I told him that the gun was located somewhere near the jacket in the clothes that they had found.” Defendant affirmed that he had “a fear of injury at that time [and that he felt] threatened [and] coerced to attempt to help them locate the gun.”

Once advised of his rights at the police station, defendant was “asked about [any] statement[, and he] said, No, I’ll wait on an attorney. The Detective Hunt and the other detective were then proceeding to leave out the door. And then [defendant] said, Well, that’s all right, I’ve already made enough statements to incriminate myself, I might as well go ahead and finish out.” Defendant “fully confessed to having pulled the trigger and shot Mr. Barefoot. He said he did not intend to do so, that he intended to commit an armed robbery and not hurt anybody, leave them in the closet and escape. . . .” Defendant has “completed high school and . . . started about a year and ... a quarter of college.” He described the detectives as “quite hospitable,” who gave him a soft drink. Defendant affirmed that he understood his rights and never sought to stop the interview; that the officers did not have their weapons drawn; and that they did not promise him any reward for making his statement nor threaten him if he did not make such statement. The shooting occurred at 11:10 a.m., and defendant gave his statement less than one hour later, at 12:01 p.m.

The trial court denied defendant’s motion to suppress, concluding “as a matter of fact that the confession was voluntarily given.” After a bench trial, defendant was found guilty of two counts of assault with intent to rob, committed against Johnny Barefoot and Jacqueline Bailey, respectively. This direct appeal followed. Held:

In his sole enumeration of error, defendant contends the trial court erred in “admitting [his] statement to police into evidence because it was the fruit of the statement which was obtained in violation of the defendant’s Fifth Amendment right not to be forced to incriminate himself.”

The question of whether a post -Miranda custodial statement is admissible depends on whether, under the totality of the circumstances, there was a knowing and voluntary waiver of rights. Reinhardt v. State, 263 Ga. 113, 114 (3), 115 (3) (b) (428 SE2d 333). “ Tactual and credibility determinations of this sort made by a trial judge after a (voluntariness) hearing must be accepted by appellate courts unless such determinations are clearly erroneous. (Cits.)’ Johnson v. State, 233 Ga. 58 (209 SE2d 629) (1974).” Wilson v. State, 211 Ga. App. 457 (1), 458 (439 SE2d 685). In the case sub judice, the trial court did not believe that defendant was threatened with having the police dog set upon him if he did not help locate the weapon, which was never found. Such credibility determinations are within the province of the trial court. Nesbitt v. State, 215 Ga. App. 271, 272 (3), 273 (450 SE2d 310). The determination that, under the totality of the circumstances, defendant’s post -Miranda custodial statement was knowing and voluntary and was not coerced or tainted by the previous pre-Miranda custodial interrogation regarding the location of the gun, is supported by evidence and is not, therefore, clearly erroneous. Reinhardt v. State, 263 Ga. 113, 114 (3), 115 (3) (b), supra.

Decided May 6, 1996.

Hartley & Puls, Alton G. Hartley, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Niria L. Dominguez, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A96A0421.
    THE STATE v. CORBITT.
    (471 SE2d 261)
   Birdsong, Presiding Judge.

Based upon a motorcycle accident that resulted in the death of Maurice Odom, Jr., Randall L. Corbitt, Jr. was indicted for several offenses arising from his operation of the motorcycle and three counts of homicide by vehicle in the first degree: Count 1 alleging he caused Odom’s death by violating OCGA § 40-6-391 (driving under the influence of alcohol); Count 2 alleging he caused the death by violating OCGA § 40-6-270 (leaving the scene of the accident); and Count 3 alleging that he caused the death by violating OCGA § 40-6-390 (reckless driving). Thereafter, the trial court granted Corbitt’s special demurrer to Counts 2 and 3 contending that by placing Corbitt on trial for three counts that all alleged homicide by vehicle in the first degree, the indictment would confuse the jury and would deprive him of his right to trial by an impartial jury. The State appeals from the grant of the special demurrer. Held:

“It has long been recognized that the same offense, that is the same species of offense, may be charged in different ways in several counts to meet the evidence. Accordingly, it likewise has long been recognized that an indictment which contains such alternative counts is not subject to a motion to dismiss. It would be of little avail to draw an indictment with different counts, so as to be adjusted to the evidence, if the defendant could immediately quash it or require an election.” (Citation and punctuation omitted.) Lumpkins v. State, 264 Ga. 255, 256 (443 SE2d 619). “Where one crime is set out in various ways in the different counts to meet diversities in the proofs, no election of counts will ordinarily be required, but all will be left open for the jury to pass upon in their verdict.” (Citation and punctuation omitted.) Conyers v. State, 260 Ga. 506, 507 (397 SE2d 423). Therefore, the trial court erred by granting the special demurrer.

Decided May 6, 1996.

Robert B. Ellis, District Attorney, Ellen S. Golden, Assistant District Attorney, for appellant.

Edwards & Edwards, H. B. Edwards III, for appellee.

Judgment reversed.

Beasley, C. J., and Blackburn, J., concur.