text:
    A01A0741.
    ALVARADO v. THE STATE.
    (547 SE2d 616)
   Mikell, Judge.

David Michael Alvarado was indicted on two counts of aggravated sodomy, one count of aggravated child molestation, and three counts of child molestation. All of the charges involved the seven-year-old son of Alvarado’s girlfriend. A jury convicted Alvarado of all six counts, and the trial court sentenced him to a total of sixty years imprisonment and twenty years probation, as follows: twenty years to serve for Count 1 (aggravated sodomy); twenty years for Count 2 (aggravated sodomy), to be served consecutively; twenty years each for Counts 4 and 5 (child molestation), to be served concurrently with the sentence on the first two counts; and twenty years probation for Count 6 (child molestation). Alvarado filed a motion for a new trial, which the court denied. However, as a result of Brewer v. State, 271 Ga. 605 (523 SE2d 18) (1999), which was decided after the trial, the court vacated his conviction on the two counts of aggravated sodomy and resentenced him to serve sixty years on the other counts. He appeals his conviction and sentence, arguing that the court improperly enhanced his sentence and erroneously admitted evidence of pornographic material during the jury trial. We affirm.

1. First, we disagree with Alvarado’s contention that the court improperly enhanced his sentence on resentencing. Based on the Supreme Court’s decision in Brewer v. State, supra, the trial court was forced to vacate Alvarado’s conviction and sentence on the two counts of aggravated sodomy. In Brewer, the Court overruled existing precedent and held that a person could not be convicted of aggravated sodomy involving an underage victim without proof of force. Id. at 607. As a result, the trial court found, and the state conceded, that there was insufficient evidence that Alvarado used force against his young victim in connection with the charges of aggravated sodomy. Because that conviction was vacated, the merger doctrine no longer applied to Alvarado’s conviction of aggravated child molestation, and the trial court sentenced him to 20 years to serve on that count. Additionally, the trial court ordered that the two twenty-year sentences for child molestation (Counts 4 and 5) run consecutively, rather than concurrently, to the twenty-year sentence for aggravated child molestation (Count 3).

Contrary to Alvarado’s argument, we conclude that the court did not err in resentencing him. We agree that a prohibition exists against the imposition of a more severe sentence as a result of vindictiveness against a defendant for successfully attacking his conviction. See North Carolina v. Pearce, 395 U. S. 711 (89 SC 2072, 23 LE2d 656) (1969); Hewell v. State, 238 Ga. 578 (234 SE2d 497) (1977); Anthony v. Hopper, 235 Ga. 336 (219 SE2d 413) (1975). However, in the case sub judice, the court did not impose a more severe sentence. Rather, it sentenced Alvarado for the first time for the conviction of aggravated child molestation, and it converted his existing sentence from a concurrent sentence into a consecutive one without increasing the length of the sentence.

We affirmed a similar resentence in Duffey v. State, 222 Ga. App. 802 (476 SE2d 89) (1996). In that case, we distinguished the cases prohibiting increased sentences and held that the trial court did not impose a more severe sentence when it converted a concurrent sentence into a consecutive one. Id. at 803-804. In Duffey, as in the case sub judice, the trial court plainly intended to sentence the defendant to a certain amount of time for his conduct. “[T]he fact that two . . . counts were vacated does not lessen the severity of the crimes against [this child], and it certainly does not require the trial court to reduce appellant’s sentence for the remaining counts. . . .” (Emphasis in original.) Id. at 804 (2). Accordingly, we affirm Alvarado’s sentence.

2. Next, Alvarado maintains that the court erred in admitting evidence that he kept pornographic material in his home. He argues that his character was improperly impugned by the victim’s mother’s testimony that Alvarado possessed pornographic videos. We disagree.

On cross-examination, Alvarado’s counsel asked T. H., the victim’s mother and Alvarado’s former girlfriend, if she ever brought pornographic material into the home she shared with Alvarado. T. H. answered that a man had given her pornographic magazines to give to Alvarado, and that the magazines were kept next to Alvarado’s side of the bed. Subsequently, the state asked T. H. if there was any other pornographic material in the home, and she responded that Alvarado possessed explicit videos depicting sexual acts between men.

Contrary to Alvarado’s argument, we do not find that the court erred in admitting the testimony at issue. As a preliminary matter, Alvarado concedes in his appellate brief that his counsel introduced the subject of pornographic materials during cross-examination of T. H.

Furthermore, we have consistently held in child molestation cases that sexually explicit material has a tendency to demonstrate “a bent of mind toward similar sexual activity.” (Punctuation omitted.) Burris v. State, 204 Ga. App. 806, 808 (1) (420 SE2d 582) (1992). We recognize that evidence of sexual material is admissible only if it shows a defendant’s “lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity.” Simpson v. State, 271 Ga. 772, 774 (1) (523 SE2d 320) (1999). However, we conclude that the pornographic videos at issue in the case sub judice were “sufficiently linked” to the behavior with which Alvarado was charged, namely the molestation of a young boy. See id.

Decided March 28, 2001.

Patricia F. Angelí, for appellant.

Robert E. Keller, District Attorney, Bonnie K. Smith, Assistant District Attorney, for appellee.

Specifically, Alvarado was charged with performing sexual acts involving the sex organ of the victim and the mouth of the defendant, acts involving the sex organ of the defendant and the mouth of the victim, exposing himself to the victim, and fondling the victim’s penis. According to T. H.’s testimony, the pornographic videos ^possessed by Alvarado depicted men performing oral sex on each other and engaging in anal sex. We have previously held that materials involving explicit homosexual activity were admissible when the defendant was charged with the inappropriate touching of a male child. Walsh v. State, 236 Ga. App. 558, 561-562 (3) (512 SE2d 408) (1999) (“While the materials at issue do not specifically depict sexual activity involving children, all the materials concern sexual activity between males.”). Accordingly, the court did not err in admitting evidence of the pornographic videos.

Judgment affirmed.

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

       Count 3 (aggravated child molestation) merged into the first two counts (aggravated sodomy).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A01A0760.
    MARTIN et al. v. CONSOLIDATED STORES CORPORATION.
    (547 SE2d 380)
   Mikell, Judge.

Elmer Martin slipped, fell, and broke his hip while wading through an inch of water in the restroom of a store owned by Consolidated Stores Corporation d/b/a Big Lots (“Consolidated”). Martin filed a personal injury action, and his wife, Mildred Martin, asserted a loss of consortium claim. The trial court granted summary judgment to Consolidated, and the Martins appeal. We affirm.

We apply a de novo standard of review to an appeal from the grant of summary judgment, viewing the evidence and all reasonable conclusions and inferences drawn from it in favor of the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

So viewed, the evidence shows that on August 17,1997, the Martins had been shopping in a Big Lots store for approximately 45 minutes when Mr. Martin decided to use the restroom. When he entered the room at 3:00 p.m., he saw water pouring out of a urinal onto the floor. Martin walked through an inch of standing water to enter a stall. After exiting the stall, Martin walked toward the door and fell just as he reached it. Martin testified that he did not see any water or hear the urinal running until he entered the restroom. No one else was in the facility.

An employee testified that he had inspected the restroom immediately prior to clocking out for lunch, which his time card showed was 2:06 p.m. The manager of the store deposed that the store adhered to its policy of cleaning the restrooms every morning before opening for business and inspecting them every two hours until the store closes. The assistant manager on duty on the date of the incident testified that brief visual inspections were conducted more frequently. She estimated that the restrooms are inspected approximately six times during the ten hours the store is open on Sundays.

To prevail in a slip and fall case, a plaintiff must prove that: (1) the store had actual or constructive knowledge of the hazard; and (2) he lacked knowledge of the hazard despite exercising ordinary care for his own safety. Robinson v. Kroger Co., 268 Ga. 735, 736 (1) (493 SE2d 403) (1997). Summary judgment is appropriate only when the evidence is plain, palpable, and undisputed. Id. at 749.

This case hinges on the second prong of the Robinson test. In this regard, the store owner bears the burden of showing that the customer intentionally and unreasonably exposed himself to a hazard of which he knew or, in the exercise of ordinary care, should have known. Id. “The customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it.” (Citations and punctuation omitted.) Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980). A customer exercises ordinary care when he uses

all senses to discover and avoid hurtful things. The established standard is whether, taking everything into account, the act is one which the common sense of mankind pronounces wants of such prudence as the ordinarily careful person would use in a like situation.

(Citations and punctuation omitted.) Robinson, supra at 741.

Decided March 28, 2001.

Miller & Markle, Eric D. Miller, for appellants.

Duncan & Mangiafico, George E. Duncan, Jr., Tammi M. Berden, for appellee.

In the case sub judice, Martin’s deposition testimony establishes that he saw and purposefully walked through inch-high water, while more water was spewing from the urinal. He did not ask a store employee to mop the floor first, and there is no evidence that Consolidated had knowledge of the water. While “the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication,” this is one of those cases in which the evidence is plain and palpable that the plaintiff failed to exercise ordinary care for his own safety. Robinson, supra at 749.

Martin asserts that the “necessity rule” applies to create a question of fact because he had no option except to assume the risk and traverse the hazardous floor so that he could satisfy his urgent need to relieve himself. There is no merit to this contention. The “necessity rule” applies in the context of a landlord-tenant relationship where the tenant is required to traverse a known hazard in order to enter or leave his home. Hart v. Brasstown View Estates, 234 Ga. App. 389, 391 (506 SE2d 896) (1998).

Martin’s actual knowledge of the hazard thus precludes his recovery. Means v. Marshalls of MA, 243 Ga. App. 419 (532 SE2d 740) (2000) (physical precedent only). Cf. Smith v. Toys “R” Us, 233 Ga. App. 188 (504 SE2d 31) (1998) (no evidence plaintiff had actual knowledge of the puddle of water that caused her fall). Accordingly, the trial court did not err in granting summary judgment to Consolidated.

Judgment affirmed.

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


author: MlKELL, Judge.

text:
    A01A0769.
    POLIZZOTTO v. THE STATE.
    (547 SE2d 390)
   MlKELL, Judge.

Jeffrey Polizzotto was charged with driving under the influence of alcohol (“DUI”) to the extent that he was a less safe driver, OCGA § 40-6-391 (a) (1), and “laying drags” in violation of OCGA § 40-6-251. Prior to trial, Polizzotto filed a motion to suppress evidence of his field sobriety evaluations based on alleged Miranda violations. The trial court denied the motion to suppress. At the conclusion of a jury trial, Polizzotto was convicted of both offenses. He appeals, arguing that the trial court erred by denying the motion to suppress, by instructing the jury during the evidentiary phase of the trial, and by improperly charging the jury on the horizontal gaze nystagmus (“HGN”) test. We affirm.

Viewed in the light most favorable to the verdict, the evidence shows that at approximately 12:40 a.m. on June 19, 1999, Deputy David Hardwick of the Rockdale County Sheriff’s Department observed a vehicle driven by Polizzotto stopped at an intersection. Deputy Hardwick testified that there was smoke coming from the vehicle and that the rear tires were spinning while the vehicle was stopped, causing it to “gyrate.” Deputy Hardwick initiated a traffic stop. He approached the vehicle, and Polizzotto began apologizing and mentioning the names of “political persons in the county and in the city,” whom he knew, including the city manager of Conyers and a county commissioner of Rockdale County. The deputy noticed the smell of alcohol coming from inside the vehicle. Deputy Hardwick asked the defendant if he had been drinking, and Polizzotto replied that he had consumed “a couple of drinks with dinner.”

The officer then administered field sobriety tests. First, while Polizzotto remained in the car, Deputy Hardwick administered the HGN test, during which he observed a “lack of smooth pursuit” in Polizzotto’s eyes, which indicated possible impairment. Next, the deputy asked Polizzotto to blow into a portable alco-sensor, and the instrument indicated that the defendant had consumed alcohol. Deputy Hardwick returned to his vehicle to summon his supervisor to the scene, because Polizzotto had dropped the names of several political figures. Deputy Hardwick told his supervisor over the radio that the defendant was “going to be 29,” which is a police code for DUI.

After speaking with his supervisor, Deputy Hardwick asked Polizzotto to exit the vehicle for additional field sobriety evaluations. The deputy directed Polizzotto to perform the “one-leg stand” test, during which he observed that Polizzotto swayed, raised his arms, and had some difficulty counting to thirty, which were “clues” that the defendant was an impaired driver. Next, Polizzotto performed the “walk and turn” test. Again, Deputy Hardwick observed clues in Polizzotto’s performance that indicated impairment.

Deputy Hardwick testified that based on the field sobriety tests, he formed an opinion that Polizzotto was “an impaired, less safe driver.” The deputy placed Polizzotto under arrest and read him the implied consent notice. Polizzotto responded that he would like to speak with an attorney before deciding whether to submit to breath testing, but Deputy Hardwick informed him that he did not have the right to have an attorney present for a breath test. The deputy read the implied consent notice for a second time, and Polizzotto agreed to submit to the test; however, when they reached the jail, Polizzotto refused to take the test.

1. First, Polizzotto argues that the trial court erred in denying his motion to suppress. He contends that Deputy Hardwick had decided to arrest him at the time the deputy spoke to his supervisor over the radio, and, therefore, evidence of subsequent field sobriety tests should have been excluded because Polizzotto was not notified of his Miranda rights. Because the trial court was not clearly erroneous in its decision to deny Polizzotto’s motion, we affirm.

It is well settled that when reviewing a trial court’s decision regarding a motion to suppress evidence, the appellate court should be guided by three principles with regard to interpretation of the trial court’s judgment of the facts:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citations, punctuation and emphasis omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); State v. Aguirre, 229 Ga. App. 736-737 (494 SE2d 576) (1997).

As a general rule, Miranda warnings are not required while an investigating officer conducts preliminary questioning or field sobriety tests; however, after a DUI suspect is arrested, Miranda warnings must precede further field sobriety tests in order for evidence of the results to be admissible. Harper v. State, 243 Ga. App. 705-706 (1) (534 SE2d 157) (2000); State v. O’Donnell, 225 Ga. App. 502, 504 (2) (484 SE2d 313) (1997); OCGA § 24-9-20 (a).

Polizzotto argues that despite the fact that he had not been formally arrested at the time of his field sobriety tests, he was effectively in custody; therefore, Miranda warnings were required. We disagree. In a similar DUI case, Lyons v. State, 244 Ga. App. 658 (535 SE2d 841) (2000), we affirmed the trial court’s denial of a motion to suppress the results of field sobriety tests and held that

[i]n determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there was a formal arrest or restraint... of movement of the degree associated with a formal arrest. The test for determining whether a person is in custody at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary.

(Citations and punctuation omitted.) Id. at 663 (2). In the case sub judice, as in Lyons, the defendant voluntarily submitted to field sobriety evaluations. Deputy Hardwick took no overt action to make Polizzotto reasonably believe that he was under arrest rather than the subject of an investigatory stop.

Furthermore, Polizzotto’s contention that Deputy Hardwick had decided to arrest him prior to administering the latter two field sobriety tests does not affect our conclusion.

Absent the officer making any statement that would cause a reasonable person to believe that she was under arrest and not temporarily detained during an investigation, the officer’s “belief” that probable cause exists to make an arrest does not determine when the arrest is effectuated until the officer overtly acts so that a reasonable person would believe she was under arrest.

Lyons, supra at 664, citing State v. Kirbabas, 232 Ga. App. 474, 475-476 (502 SE2d 314) (1998). Accordingly, the trial court did not err in denying the motion to suppress.

2. Next, Polizzotto argues that the trial court erred by impermissibly instructing the jury during the evidentiary phase of the trial, in violation of OCGA § 17-8-57. We find no harmful error and affirm.

During Polizzotto’s testimony, the state asked the court to take up a matter outside the presence of the jury. Polizzotto had just testified that he believed he had the right to have an attorney present for his breath test and, when prompted, had explained the basis for his belief as follows: Polizzotto had also testified that Deputy Hardwick did not read him his Miranda rights. After the jury left the courtroom, the state asked the court to instruct the jury that there is no legal requirement that a DUI suspect be advised of his Miranda rights prior to arrest and that a DUI suspect does not have the right to an attorney during breath testing. The court heard from the state and the defense on this issue and then instructed the jury as follows:

A: At that point in my mind, I’m thinking, he’s reading legal stuff [the implied consent notice] to me that I don’t completely understand. I want to have an attorney present, and I asked for one.
Q: What made you think you had the right to have an attorney?
A: Watch TV you see people, you know, you have the right to a phone call and a right to a lawyer if you’re under arrest and in handcuffs. ... I feel like I’ve got the right to have an attorney.
Ladies and gentlemen, before we proceed any further, I have a charge to give you if you’ll listen up. A motorist detained pursuant to a traffic stop is not taken into custody for purposes of the Miranda warning. Under our laws a police officer can stop a motorist when erratic driving was observed and ask the motorist a modest number of questions and also ask the motorist to perform simple sobriety tests if these procedures involve a short period of time. I charge you that a person suspected of driving under the influence is not entitled to the advice of counsel when conferring with a decision as to whether to submit to a sobriety test under the implied consent law.

Polizzotto does not contend that the court’s instruction was an incorrect statement of the law; rather, he argues that the court’s giving of the instruction during the evidentiary phase of the trial amounted to an improper comment on Polizzotto’s guilt, in violation of OCGA § 17-8-57. That Code section provides that “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.”

We conclude that the judge’s instruction did not constitute an improper expression of his opinion of the case and, therefore, was not a violation of OCGA § 17-8-57. While it might have been the better practice for the court to give the instruction at issue during the jury charge at the close of the evidence, we cannot determine that the charge as given constituted harmful error, particularly in light of the overwhelming evidence of Polizzotto’s guilt.

3. Finally, Polizzotto argues that the court erred in charging the jury on the HGN test. At the close of the trial, the court instructed the jury as follows:

The horizontal gaze nystagmus or HGN test is based on well known and medically accepted principles that nystagmus can be caused by ingestion of alcohol. The HGN test is an accepted common procedure that has reached a state of verifiable certainty in the scientific community and is admissible as a basis upon which an officer can determine whether a driver was impaired by alcohol.

Decided March 28, 2001

Moulton & Massey, Terry N. Massey, for appellant.

Richard R. Read, Solicitor, Robert D. James, Jr., Assistant Solicitor, for appellee.

Polizzotto first argues that the above charge was given in error, because the HGN test produces clues that tend to prove that a person’s blood alcohol content is greater than 0.10 grams, rather than proving that a person is impaired and therefore a less safe driver. He bases this contention on Deputy Hardwick’s statement, made outside the presence of the jury, that seventy-seven percent of all drivers who have six clues or more during an HGN test have a blood alcohol content of 0.10 grams or more. This argument is without merit.

In Waits v. State, 232 Ga. App. 357, 360 (3) (501 SE2d 870) (1998), a similar case involving a defendant charged with DUI to the extent that he was a less safe driver, we held that the exact charge at issue was a correct statement of the law, and that a trial court did not err when it gave that charge. Therefore, we reject Polizzotto’s argument that the charge was an incorrect statement of the law.

Polizzotto also argues that the charge on HGN somehow violated OCGA § 17-8-57 as an improper expression of the trial judge’s opinion of what had been proved. This precise issue was decided adversely to Polizzotto in Waits, where we held that “[t]he charge did not express an opinion, either of [the defendant’s] guilt or regarding what had been proved.” Id. at 360 (3). Accordingly, we find no error in the court’s charge and affirm the conviction.

Judgment affirmed.

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


author: Blackburn, Chief Judge.

text:
    A01A0770.
    In the Interest of S. C., a child.
    (547 SE2d 611)
   Blackburn, Chief Judge.

Appellant, the biological father of S. C., appeals the trial court’s dispositional order granting temporary custody of his daughter to her aunt, contending that the trial court erred by requiring him to enter a sexual offender treatment program before being allowed supervised visitation. For the reasons set forth below, we affirm.

The record shows that, in an order entered on September 3, 1999, the trial court determined that S. C. was deprived, finding that “there is clear and convincing evidence that [S. C.] is deprived as her father has touched her in her vaginal area in an improper manner and she has been abandoned by her biological mother.” At that time, the trial court granted temporary custody of S. C. to her aunt, but continued the case with regard to the ultimate disposition of S. C. until further evaluations of appellant and the child had been completed. Appellant never appealed the trial court’s finding of deprivation.

After psychological studies had been performed on appellant and S. C., the trial court conducted a hearing to determine the child’s custody, and, on February 28, 2000, the trial court entered an order in which it found that S. C. should remain in her aunt’s custody and that appellant could have supervised visitation beginning one week after he started a program for treatment of sexual offenders. It is this order which is the subject of this appeal.

1. In two separate enumerations of error, appellant now attempts to appeal the original deprivation order, contending that there was insufficient evidence to support the finding of deprivation and that the trial court erred by not providing the Indian Nation with notice of the proceedings pursuant to 25 USC § 1912 because S. C. is one-quarter Native American.

Appellant, however, never filed a notice of appeal with regard to the original deprivation order. OCGA § 5-6-38 (a) provides that a “notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of.” Appellant failed to make the required filing with regard to the deprivation order, and therefore, this Court has no jurisdiction to consider appellant’s arguments regarding the efficacy of this ruling.

2. Appellant contends that, in its order granting temporary custody of S. C. to her aunt, the trial court erred by requiring him to submit to a sexual offender treatment program before being allowed to visit his daughter. We disagree.

Evidence was submitted in this case that S. C. claimed that her father had molested her. The trial court found this evidence to be credible, and, in large part, it based its finding of deprivation on the determination that this molestation had actually occurred. As this determination has not been appealed, we will not question it here. The trial court did not abuse its discretion in requiring appellant to start treatment prior to being allowed to visit S. C., based on the subject incident.

Contrary to appellant’s argument, Woodruff v. Woodruff is not applicable here. In Woodruff, the trial court determined that, after the Woodruffs’ divorce, the father could have no visitation with his child whatsoever based on the mother’s allegations that molestation had occurred. Our Supreme Court reversed this decision, finding that removal of all visitation in the absence of any probative evidence was an abuse of discretion. In this case, on the other hand, all visitation has not been completely removed. Appellant can visit his daughter if he enrolls in a treatment program. Moreover, here S. C., herself, accused appellant of molesting her, providing probative evidence that the act indeed occurred.

Decided March 28, 2001.

Thomas W. Veach, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Edwards, Friedewald & Gray-son, Robert J. Grayson, for appellee.

The trial court, therefore, did not err by requiring appellant to submit to a sexual offender treatment program before being allowed to visit his daughter.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Woodruff v. Woodruff, 272 Ga. 485 (531 SE2d 714) (2000).


text:
    A01A0792.
    CARTER v. THE STATE.
    (547 SE2d 613)
   Mikell, Judge.

After a bench trial, Willie Carter and his co-defendant, Alford Saxon Bostic, were convicted of trafficking in cocaine (Count 1) and possession of a firearm during the commission of a crime (Count 2). Carter was also found guilty of possession of a firearm by a convicted felon (Count 3). The trial court sentenced Carter to serve twenty years on Count 1 and pay a $200,000 fine; five years on Count 2, to be served consecutively to the sentence on Count 1; and five years on Count 3, to be served concurrently to the sentences on the first two counts. On appeal, Carter claims that his sentence constituted cruel and unusual punishment; that the trial court erred in denying his motion-to suppress evidence seized from his vehicle; that the evidence was insufficient to support his convictions; and that the state failed to prove the chain of custody of the cocaine. We disagree and affirm.

Evidence adduced at trial shows that Randall Coppolino, a sergeant assigned to the drug task force of the Fayette County Sheriff’s Department, was working undercover on September 1, 1998, setting up a drug buy through an informant, Lorenzo Hixson. Sgt. Coppolino testified that the informant told him that he and the drug supplier, who was later identified as Bostic, would be traveling in separate vehicles to Fayette County to bring cocaine to the sergeant.

Hixson maintained cellular telephone contact with Coppolino throughout the trip. Coppolino testified that Hixson described the drug seller’s vehicle as a brown Suburban and its passenger as a “skinny, junky, enforcer.” Coppolino, who was waiting for the Suburban, pulled it over as it passed him. The driver of the Suburban was later identified as Bostic and the passenger as Carter. Both Carter and Bostic consented to a search of the vehicle. During the search, six plastic bags containing 122 grams of cocaine were found in a pair of shorts in the rear cargo area, and a .357 revolver was found under the passenger’s side floor mat. Bostic testified at trial that he owned the gun and that Carter had “nothing to do” with it. Both defendants denied knowledge of the cocaine.

1. Carter first challenges the sufficiency of the evidence to support his convictions. On appeal of a criminal conviction, we view the evidence in the light most favorable to support the verdict, and the defendant is no longer entitled to a presumption of innocence. We do not weigh the evidence or decide witness credibility, but simply determine whether the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of the crimes charged. Conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld.

(a) The evidence recounted above amply supports Carter’s conviction of trafficking in cocaine.

(b) Pursuant to OCGA § 16-11-106 (b), a person possesses a firearm during the commission of a crime when he has a firearm on or within arm’s reach of his person during the commission of a felony. Here, evidence that the revolver was found under the floor mat where Carter was sitting authorized the trier of fact to find him guilty of this offense under the standard set forth in Jackson v. Virginia.

(c) In addition, certified copies of Carter’s prior convictions for burglary, rape, and armed robbery established his status as a convicted felon. This evidence is sufficient to authorize Carter’s conviction of possession of a firearm by a convicted felon pursuant to OCGA § 16-11-131.

2. Carter’s sentence did not violate the prohibition against cruel and unusual punishment established by the Eighth Amendment to the U. S. Constitution. His sentence of 20 years for trafficking in cocaine was within the range set out in OCGA § 16-13-31 (a) (1) (A) and (g). Moreover, the court assessed the $200,000 fine required by OCGA § 16-13-31 (a) (1) (A). Similarly, the sentence imposed for possession of a firearm during the commission of a crime, five years to be served consecutively to the sentence on Count 1, was mandated by statute. Finally, OCGA § 16-11-131 (b) provides that a felon who is convicted of firearm possession shall be imprisoned for not less than one nor more than five years. Accordingly, Carter’s five-year sentence on this count, to be served concurrently with his other sentences, was not an abuse of the trial court’s discretion.

3. Carter next challenges the denial of his motion to suppress, arguing that the state failed to establish the informant’s reliability. Carter points to Sgt. Coppolino’s testimony that Hixson had been arrested for drug violations and had offered to provide information in exchange for the sergeant’s recommendation of leniency to the district attorney.

This enumeration is controlled adversely to Carter by Archer v. State where we held, based on facts nearly identical to those in the case sub judice, that a tip “from an informant of hitherto unconfirmed reliability” provided the police with probable cause to effectuate an investigatory stop and warrantless search of a moving vehicle. In Archer, as in the instant case, “the details of that tip, including the predicted timing and route of a particular vehicle driven by a particular individual, were confirmed by the personal observations of the investigating officers.” “Our decisions applying the totality-of-the-circumstances analysis . . . have consistently recognized the value of corroboration of details of an informant’s tip by independent police work.” Thus, under the totality of the circumstances, we find that the details provided by the informant, as confirmed by the observations of Sgt. Coppolino, provided the police with probable cause to conduct an investigatory stop. The search of the

Decided March 28, 2001.

George H. Weldon, for appellant.

William T. McBroom III, District Attorney, Thomas J. Ison, Jr., Assistant District Attorney, for appellee.

4. Carter finally contends that the state failed to prove the chain of custody of the cocaine. However, Carter waived appellate review of this issue by failing to object to the trial testimony of the state forensic chemist. Further, Carter’s brief fails to support this evidentiary challenge with citation to authority or reasoned argument; thus, it is deemed abandoned under Court of Appeals Rule 27 (c) (2). In any event, a thorough review of the chemist’s testimony reveals that the state established with reasonable certainty that the cocaine introduced in evidence was the same as that seized and that no tampering or substitution occurred.

Judgment affirmed.

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

       Bostic is not a party to this appeal.

        Horne v. State, 237 Ga. App. 844-845 (1) (517 SE2d 74) (1999).

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

       See Bellamy v. State, 243 Ga. App. 575 (530 SE2d 243) (2000).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Adams v. State, 239 Ga. App. 42, 43 (1) (520 SE2d 746) (1999).

        Jackson v. Virginia, supra.

        Boatwright v. State, 193 Ga. App. 141, 143 (4) (387 SE2d 386) (1989).

       See OCGA § 16-11-106.

       217 Ga. App. 395, 396 (457 SE2d 679) (1995).

       Id. at 396-397.

       Id. at 396.

        Illinois v. Gates, 462 U. S. 213, 241 (103 SC 2317, 76 LE2d 527) (1983). vehicle with consent was valid, and the trial court did not err in refusing to suppress the cocaine and weapon.

       See Geoffrion v. State, 224 Ga. App. 775, 779 (6) (482 SE2d 450) (1997), rev’d on other grounds, Mullins v. State, 270 Ga. 450 (511 SE2d 165) (1999).

        Slade v. State, 222 Ga. App. 407, 408 (1) (474 SE2d 204) (1996).


author: Andrews, Presiding Judge.

text:
    A00A2310.
    OLARIU v. MARRERO.
    (549 SE2d 121)
   Andrews, Presiding Judge.

On March 1, 1997, Carmen Marrero was injured when the truck in which she was a passenger collided with a vehicle driven by Ovidiu Olariu. She sued Olariu for personal injury and loss of consortium. The jury found for Marrero and awarded damages. On appeal, Olariu challenges Marrero’s recovery of past medical expenses written off by the health care provider or discharged in bankruptcy. Olariu also claims that the trial court erred in charging the jury on lost earnings and by failing to grant his motion for judgment notwithstanding the verdict on the issue of lost earnings. For reasons set forth below, we reverse the trial court’s ruling allowing Marrero to recover medical expenses previously discharged in bankruptcy, but otherwise affirm.

1. The jury awarded Marrero $36,620.20 in past medical expenses.* To show medical costs, Marrero introduced a bill for her initial treatment at Gwinnett County Medical Center in the amount of $21,770.42. Before the trial, Olariu deposed a medical center employee who testified that Marrero’s $21,770.42 bill had been partially written off by the hospital and that $1,500 remained payable by Marrero. Marrero filed a motion in limine to exclude the deposition. The trial court found that the reduction of Marrero’s hospital bill was equivalent to a recovery from a collateral source and excluded from evidence any reference to the hospital’s write-off of Marrero’s initial medical bill.

The common law rule in Georgia bars the defendant from presenting any evidence as to payments of medical, hospital, disability income, or other expenses of a tortious injury paid for by a plaintiff, governmental entity, or third party and taking credit towards the defendant’s liability in damages for such payments, because a tortfeasor is not allowed to benefit by its wrongful conduct or mitigate its liability by collateral sources provided by others. The common law rule made no exceptions for the introduction of evidence as to a collateral source, which rule remains applicable today.

(Citations omitted.) Candler Hosp. v. Dent, 228 Ga. App. 421 (491 SE2d 868) (1997). See also Ins. Co. of North America v. Fowler, 148 Ga. App. 509, 511 (2) (251 SE2d 594) (1978), overruled on other grounds, Seaboard Coast Line R. v. Mobil Chemical Co., 172 Ga. App. 543, 544 (1) (323 SE2d 849) (1984).

The trial court found Candler Hosp., supra, to be controlling. There, the plaintiff sued the defendant hospital for malpractice. We agreed with the lower court that the hospital’s write-off of plaintiff’s medical expenses must be treated as a collateral source and that the plaintiff could prove all medical expenses undiminished by the write-off. We also held that the defendant hospital must be allowed to apply its write-off of the plaintiff’s medical bills as a credit against a specific award of medical expenses. Id. at 422.

Olariu argues that Marrero would benefit unjustly from an award of medical expenses unless Olariu were allowed to present evidence of the write-off of medical expenses to the jury or, alternatively, Marrero was prohibited from recovering medical expenses which had been written off.

Georgia law prohibits presentation to the jury of payment of damages by a collateral source. McDonald v. Simmons, 207 Ga. App. 692 (428 SE2d 690) (1993). Candler Hosp. establishes that a write-off of medical expenses is a collateral source of payment. The trial court did not err in granting Marrero’s motion in limine to exclude evidence of the write-off.

Olariu’s argument that Marrero should not be allowed to recover medical expenses written off by the hospital runs counter to the general rule that a defendant is not entitled to a credit for collateral payments to the plaintiff. See Cincinnati &c. R. Co. v. Hilley, 121 Ga. App. 196, 199-201 (173 SE2d 242) (1970). This is in contrast to a prior payment to the plaintiff made by or on behalf of the defendant or a joint tortfeasor. The holding in Candler Hosp. is that a “plaintiff can recover from the jury all special damages provable, but cannot receive in judgment again what has already been paid by the defendant or on the defendant’s behalf by an insurer.” Candler Hosp., 228 Ga. App. at 423. The set-off in Candler Hosp. prevented a double recovery against the defendant, but Olariu has made no prior payments to Marrero with respect to her medical costs.

Olariu is not liable to pay Marrero’s medical expenses twice, but the existence of a collateral source will not accrue to his benefit and allow him to avoid these otherwise payable damages. “Georgia does not permit a tortfeasor to derive any benefit from a reduction in damages for medical expenses paid by others, whether insurance companies or beneficent boss or helpful relatives.” Bennett v. Haley, 132 Ga. App. 512, 522 (16) (208 SE2d 302) (1974). Olariu is not entitled to use a third party’s write-off of medical expenses as a set-off against Marrero’s recovery of past medical expenses.

2. (a) Olariu argues that the trial court erred in allowing Marrero to recover any portion of her medical bills which had been previously discharged in bankruptcy. We agree. The question of whether or not medical expenses discharged in bankruptcy should be treated as a collateral source of payment is one of first impression. Marrero cites Crozier v. State, 233 Ga. App. 831 (506 SE2d 139) (1998) to support her argument that a plaintiff’s discharge of medical expenses in bankruptcy should not relieve a defendant from responsibility for those costs. Crozier, however, involves a payment in criminal restitution rather than a tort claim and is not controlling. Although a reasonable argument can be made for treating debts discharged in bankruptcy as subject to the “collateral source rule,” we hold that a plaintiff may not recover in tort special damages for medical expenses previously discharged in bankruptcy. There are two compelling reasons for so holding. First, the effects of a bankruptcy do not constitute a “collateral source” at all. There is no third party acting as an additional source of recovery. Debts in bankruptcy become unrecoverable by operation of law. See 11 USC § 524 (a) (2). In contrast, a collateral source is generally a third party which has voluntarily provided a benefit through a bargained-for agreement, such as an insurer or as a gratuity. See Bennett v. Haley, supra; Smith v. Jer nigan, 42 Va. Cir. 395 (1997). The second reason for not extending the collateral source rule is that to hold otherwise might encourage bankruptcy, which is not consistent with public policy. See Oliver v. Heritage Mut. Ins. Co., 179 Wis.2d 1, 22-23 (505 NW2d 452) (1993). Accordingly, a plaintiff may not collect damages for medical expenses previously discharged in bankruptcy; provided, this shall not limit the rights of plaintiff’s trustee in bankruptcy.

As the trial court’s rulings are inconsistent with the foregoing, the judgment must be reversed in part and the case remanded with direction that the trial court determine the amount of Marrero’s medical bills which were discharged in bankruptcy and to set off that amount against the jury’s award of past medical expenses.

(b) The trial court was correct in excluding from consideration by the jury any evidence that a portion of Marrero’s medical bills had been discharged by bankruptcy. Even though we hold that medical expenses discharged through bankruptcy may be credited against a plaintiff’s recovery of special damages for medical expenses, the discharge is nevertheless irrelevant to a jury’s determination of these damages and may be prejudicial as well.

3. (a) The jury awarded Marrero $25,000 in lost past earnings and $100,000 in lost future earnings. Olariu claims the trial court erred in denying his motion for judgment n.o.v. on the issue of Marrero’s lost earnings. We disagree. Lost wages and earnings are recoverable where the evidence shows the amount of loss with reasonable certainty. Douglas v. Rinker, 134 Ga. App. 949 (216 SE2d 629) (1975). Loss of future earnings is recoverable where evidence is presented on the permanency of plaintiff’s injury, the effect of injury on earnings, and the monetary amount thereof. Gilbert v. Parks, 140 Ga. App. 550 (1) (a) (231 SE2d 391) (1976).

“Based on evidence of what the plaintiff was able to do before and after the injury, the nature and percentage of permanent impairment, and the value of the services before the injury, a jury may make an award as compensation for diminished earning capacity, whether or not the evidence establishes with any exactitude the lost future earnings.”

Ga. Farmers’ Market Auth. v. Dabbs, 150 Ga. App. 15, 19 (8) (256 SE2d 613) (1979). A recovery for “loss of future earnings” is available where there is proof of loss of definite earnings that would have been received in the future but for an injury, even though the injury is not permanent. See Myrick v. Stephanos, 220 Ga. App. 520, 521 (2) (472 SE2d 431) (1996).

The evidence shows that Marrero, who was born on May 13, 1949, worked throughout most of her adult life. Approximately a month prior to the accident, she left her job to assist her pregnant daughter in Kentucky. Marrero was injured in the collision with Olariu’s vehicle less than two weeks after she had returned to Georgia, and, at the time of the accident, she had accepted a position at a former employer’s supermarket deli.

Decided February 23, 2001

Reconsiderations denied March 5, 2001 and March 29, 2001

Brennan, Harris & Rominger, Mason White, James D. Kreyenbuhl, Hertz & Link, Houston D. Smith III, for appellant.

Slappey & Sadd, James N. Sadd, for appellee.

Marrero had worked the previous 16 to 17 years preparing food and had accepted an offer to continue in that line of work. Her food preparation work required lifting, which Marrero testified she is no longer able to do.

Marrero’s injuries involved a fractured right clavicle and fractured pelvis. After the accident she used a wheelchair for four or five months and then a walker for eight to nine months. A plate and screws were inserted in her clavicle. A physician testified that Marrero had been medically unable to work since the accident and suffered a permanent five percent disability under the American Medical Association guidelines. In her job immediately prior to the collision, Marrero was earning $7 an hour and working 35-38 hours a week.

We find Olariu’s argument that Marrero was not entitled to a recovery for future earnings because she was unemployed at the time of the accident to be unpersuasive. Marrero presented evidence which would allow the jury to make a reasonable determination of loss for both past and future earnings. The trial court correctly denied Olariu’s motion for judgment n.o.v. on this issue.

(b) The defense stated it had no exceptions to the jury charges, and so Olariu may not now object to the charge with respect to lost earnings. See Watkins & Watkins, P.C. v. Williams, 238 Ga. App. 646, 649 (4) (518 SE2d 704) (1999).

Judgment affirmed in part and reversed in part and case remanded with direction.

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

       The jury also awarded Marrero $38,250 for future medical expenses, $25,000 for past lost earnings, $100,000 for future lost earnings, $25,000 for past pain and suffering, and $10,000 for future pain and suffering.


author: Barnes, Judge.

text:
    A00A2593.
    NICKERSON v. THE STATE.
    (545 SE2d 587)
   Barnes, Judge.

Marcus Lane Nickerson was tried and convicted of false imprisonment, criminal solicitation of sodomy, aggravated assault, and possession of less than one ounce of marijuana. The jury acquitted him of kidnapping, and the trial court sentenced him to serve a total of 29 years in prison. He appeals, asserting that the convictions should be reversed because he was not present during a pretrial motions hearing, and because his trial counsel was ineffective. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, the evidence at trial established that Nickerson approached the victim in a bar, bought her and her friend a beer, and struck up a conversation. When the victim walked out of the bathroom, Nickerson said he had to leave and asked her to walk him to his car to finish their conversation. The two walked to the far end of the parking lot, where Nicker-son’s car was parked facing out. Nickerson got into the driver’s seat and opened the passenger door. The victim testified that she was leaning against the door, talking to Nickerson, when he suddenly grabbed her arm, pulled her inside, and drove off quickly, making the passenger door slam shut.

He drove to his nearby apartment over her protests, and after he parked, she discovered that she could not open her car door. Nicker-son pulled the victim out of the car and into his residence. The victim said Nickerson had been calm and reassuring to that point and said, “Come here and look at this.” She stepped five feet or so into the room, and he pulled her into the bathroom, turned out the light, and demanded that she perform oral sex on him or he would kill her. The victim broke away and got out of the bathroom. Nickerson tackled her onto the bed. She continued to scream and struggle, and then, she said, he suddenly quit fighting.

As she began unlocking the door, Nickerson said, “If you go out there, you’re going to get raped or killed.” “I’ll take my chances,” she replied and ran outside, banging on doors until someone came to her aid and called the police.

The police came to the scene, questioned the victim, and then questioned Nickerson at his apartment. They placed him in custody and then obtained and executed arrest and search warrants.

1. Nickerson asserts that he was not present during a pretrial hearing on the State’s motion to present evidence of a similar transaction. He points to his trial counsel’s initial statement in the hearing, in which counsel said, ‘Your Honor, may I address the Court before my client comes?” After the court assented, counsel said, “My client is going to file a motion that needs an attached affidavit. I haven’t been able to get to him this morning and is there a possibility that he could sign this before the Court or have it notarized in some manner?” The court responded and then called the hearing. Nothing in the transcript indicates that Nickerson entered the courtroom, and Nickerson later testified at a hearing on his motion for new trial that he was not present.

On the other hand, Nickerson’s trial counsel testified at the motion for new trial hearing that, “to [his] knowledge,” Nickerson was present during the similar transaction hearing. On further questioning, trial counsel said, “Man, it’s two years. I think he was. I’m pretty sure he was there.” Moreover, the record contains Nickerson’s motion to strike a prior conviction and affidavit in support, which is stamped “Filed in Court” on the hearing date at 11:45 a.m. Nicker-son’s signature was notarized on the hearing date, and the transcript shows the hearing concluded at 12:15 p.m.

The trial court specifically addressed the issue of whether Nickerson was present at the similar transaction hearing. In its order denying Nickerson’s motion for new trial, the court made the following findings:

although the transcript of the similar transaction motion is ambiguous, counsel for defendant testified in the Motion for New Trial that his client was present, to his knowledge: “Yes, to my knowledge he was, Yes.” (p. 10, transcript of Motion for New Trial) “To my knowledge, he was” (p. 11) “I think he was. I’m pretty sure he was there, yes.” (p. 11) The record of the hearing reflects a statement on the record before the Defendant was brought out, and before the motion was called for hearing. The lack of a statement that defendant was being brought out does not show he was not present. Although the defendant claims he was not present, the Court’s practice of requiring any waiver of the defendant’s presence be recorded, and the testimony of defense counsel, establish to the Court’s satisfaction that the defendant was present at the similar transaction hearing.

While we agree that Nickerson had a right to be present during a critical stage of the proceedings against him, Goodroe v. State, 224 Ga. App. 378, 380 (1) (480 SE2d 378) (1997), the trial court heard testimony during the new trial hearing and determined that Nickerson was present. “It is the province of the trial court to weigh the credibility of the witnesses and unless clearly erroneous, its findings of fact will be upheld on appeal.” (Punctuation omitted.) McKenzie v. State, 223 Ga. App. 108, 109 (2) (a) (476 SE2d 868) (1996). The trial court’s determination that Nickerson was present during the similar transaction hearing is not clearly erroneous, and we therefore find no error.

2. Nickerson asserts that his trial counsel was ineffective, citing six specific instances in which he claims his counsel’s actions were deficient.

Nickerson’s claim was presented to and ruled upon by the trial court, whose finding of effectiveness must be upheld unless clearly erroneous. Johnson v. State, 222 Ga. App. 722, 728 (9) (475 SE2d 918) (1996). In order to prevail on a claim of ineffective assistance of counsel, Nickerson must show both deficient performance and actual prejudice. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). “To show deficient performance, he must demonstrate that his counsel’s performance was not reasonable under the circumstances confronting his counsel at the time, without resorting to hindsight.” Turpin v. Mobley, 269 Ga. 635, 638 (3) (502 SE2d 458) (1998).

Nickerson’s burden is high because his counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Turpin, supra, 269 Ga. at 638 (3). To show actual prejudice, he must demonstrate a reasonable probability that he would have been acquitted but for counsel’s unprofessional errors. Id.

(a) Nickerson argues his trial counsel was ineffective for failing to object to the State’s argument and comment regarding his “future dangerousness.”

“It is manifestly improper for a prosecutor to argue to the jury during the guilt-innocence phase of any criminal trial that if found not guilty, a defendant poses a threat of future dangerousness.” Wyatt v. State, 267 Ga. 860, 864 (2) (b) (485 SE2d 470) (1997).

The State’s closing argument included the following statements:

Marcus Lane Nickerson, a predator. Moving in the dark, hunting for his prey. Like all predators, he seeks the weak to satisfy his desires, from Nickerson, his lustful desires. Turning young females’ lives into a nightmare. . . . It’s horrifying to see the sentence that was dealt in that case. . . . Really punished him, didn’t it? He did real good with that. His prey. Real successful with it. So successful, he did it again. He’s a predator. Here’s a man that is on probation for this offense and he did it again. He did it again. Ladies and Gentlemen of the jury, it’s time to bring the predator to an end. No more nightmares. No more sleek moving through the night, coaxing women into cars. Messing with security locks on door mechanisms so the women can’t get out. . . . It’s time for the assaults to stop. It’s time for the nightmares to come to an end.

We agree with Nickerson that the State’s closing argument contained an improper reference to Nickerson’s future dangerousness as was forbidden in Sterling v. State, 267 Ga. 209, 210 (2) (477 SE2d 807) (1996), and that his trial counsel’s failure to object to the argument during closing constituted deficient performance. “However, we conclude the error was harmless because the overwhelming evidence supporting the verdict renders it highly unlikely that this portion of the argument contributed to the verdict.” Bellamy v. State, 272 Ga. 157, 162 (11) (527 SE2d 867) (2000); McClain v. State, 267 Ga. 378, 383 (3) (a) (477 SE2d 814) (1996). Therefore Nickerson has failed to show actual prejudice, and the trial court did not err in denying his motion for new trial.

(b) Nickerson argues his trial counsel was ineffective for failing to move to suppress evidence of the victim’s earring that the police found on his bed. His trial counsel testified that he did not move to suppress the evidence because he thought the motion would not be successful. The investigating police officers testified at trial that Nickerson assented to their request to enter his room and that they pulled the sheets back from his bed to check for hidden weapons because in the officers’ experience weapons were frequently hidden in bed linens.

Because Nickerson gave the officers permission to enter his room, their presence was lawful, and once they lawfully entered, they were entitled to make a protective sweep of the surroundings. Inglett v. State, 239 Ga. App. 524, 525 (1) (521 SE2d 241) (1999). That protective sweep uncovered the earring, and before searching the premises further, the officers obtained a search warrant. Thus, a motion to suppress would not have been successful. “Trial counsel’s failure to pursue a futile motion . . . does not constitute ineffective assistance.” Mackey v. State, 235 Ga. App. 209-210 (1) (509 SE2d 68) (1998). We find no error.

(c) Nickerson alleges his trial counsel was ineffective for failing to object to what he characterizes as improper comments on his rights to remain silent and to representation. The investigating detective testified that, when he arrived on the scene, Nickerson was secured in the back of a patrol car. He asked Nickerson several times what his name was, to which Nickerson replied with expletives, adding that he did not have to tell the police anything, he had not done anything, he did not know “that woman,” he was being targeted because he was black and the victim was white, and his lawyer was Jack Menendez. After Nickerson began screaming, ‘You just want to beat me, you just want to beat me,” the detective testified that he stopped asking Nickerson for his name, closed the car door, and went to obtain a search warrant.

A police officer’s request for a suspect’s name, which is a procedure required under OCGA § 17-4-27, does not constitute custodial interrogation. Hibbert v. State, 195 Ga. App. 235, 237 (393 SE2d 96) (1990). Nickerson’s statements in response to the requests for identification were lawfully obtained, id., and an objection to the detective’s testimony about the statements would not have been successful. Therefore, the trial court did not err in concluding that Nickerson’s trial counsel was not ineffective for failing to object to the testimony.

(d) Nickerson asserts his trial counsel was ineffective because he did not object to an “overly broad and vague instruction on the use and limitations of similar transaction evidence.” He specifically alleges that the following language in the charge is overbroad: “Before you may consider evidence of a similar offense for any purpose, it must first be made to appear and you must be satisfied that the Defendant is the same person to whom the evidence upon the similar offense pertains” (Emphasis supplied.) Nickerson cites Rivers v. State, 236 Ga. App. 709 (513 SE2d 263) (1999), for the proposition that the portion of the charge quoted above is reversible error. While the charge given in Rivers contained the word “pertains,” we did not reverse for that reason. We reversed because the charge in Rivers informed the jury “that it also could consider similar transaction evidence for the purpose of showing ‘the crimes charged in the case,’ and in considering an ‘element of the offense charged in this indictment.’ ” Id. at 712 (1) (b). That charge thus created a fair risk that the jury was confused and misled as to the proper limited use of similar transaction evidence to the prejudice of the defendant.

In this case, however, the limiting charge clearly prohibited the jury from considering the similar transaction evidence for the purpose of showing “the crimes charged in the case.” The charge in its entirety follows:

Ladies and gentlemen, in regard to the testimony of this witness, let me explain to you that sometimes evidence is admitted for a limited purpose. Such evidence may be considered by you, the jury, for the sole purpose or issue to which the evidence is limited and not for any other purpose. The law provides that evidence of another offense allegedly committed by this defendant, that is similar in terms of common design, scheme, plan, course of conduct, motive, location, or other factors, to the offense for which the defendant is on trial, may be admissible and may be considered for the limited purpose of showing, if it does, the identity of the perpetrator, or the state of mind, knowledge or intent of the perpetrator, in the crime charged in the case now on trial. Such evidence, if any, may not be considered by you for any other purpose. The Defendant is on trial for the particular offense — offenses charged in this bill of indictment, only. The Court does not express any opinion as to whether the Defendant has had any other offense. This is a matter solely for your determination. Before you may consider evidence of a similar offense, for any purpose, it first must be made to appear, and you must be satisfied, that this Defendant is the same person to whom the evidence upon the similar offense pertains. If you believe such has been proven, however, you are strictly limited in your consideration of the evidence as to the identity or the state of mind as charged in this indictment.

Considering the charge as a whole, it was not overly broad and adequately described to the jury the permissible limited consideration to give the ensuing similar transaction evidence. Accordingly, the trial court did not err in finding Nickerson’s trial counsel was not deficient for failing to object to it;

(e) Finally, Nickerson contends his trial counsel was deficient for failing to object to an argument by the State that “he would not suffer the full penalty imposed by the trial court because of the existence of pardon, parole or clemency, in violation of OCGA § 17-8-76.” The Code section provides:

(a) No attorney at law in a criminal case shall argue to or in the presence of the jury that a defendant, if convicted, may not be required to suffer the full penalty imposed by the court or jury because pardon, parole, or clemency of any nature may be granted by the Governor, the State Board of Pardons and Paroles, or other proper authority vested with the right to grant clemency, (b) If counsel for either side in a criminal case argues to or in the presence of the jury as provided in subsection (a) of this Code section, opposing counsel shall have the right immediately to request the court to declare a mistrial, in which case it shall be mandatory upon the court to declare a mistrial. Failure to declare a mistrial shall constitute reversible error.

The testimony to which Nickerson objects came about during the State’s examination of one of the officers who executed the search warrant of Nickerson’s apartment. The officer stated that he was trying to find something with Nickerson’s name on it to identify him. He found a leather case containing papers, and he testified that he “located several reports, I believe, from Louisiana and some papers . . . about his parole, or that he was supposed to report to, I think the state’s parole board.” He then identified State’s Exhibit 13, “the probation division for Georgia Department of Corrections registration form” that he found in Nickerson’s room.

Nickerson also contends his trial counsel failed to object to the following portion of the State’s closing argument:

It’s horrifying to see the sentence that was dealt in that case. And you’ll see the conviction. It’s horrifying. He got a probationary sentence with sexual ■ deviancy treatment. Really punished him, didn’t it? He did real good with that. His prey. Real successful with it. So successful, he did it again. He’s a predator. Here’s a man that is on probation for this offense and did it again. He did it again.

“The purpose of the statute is to prevent prosecutors from arguing in essence that the jury should give a more severe sentence to compensate for possible pardon, parole, or other clemency.” Gilreath v. State, 247 Ga. 814, 835 (15) (279 SE2d 650) (1981). Nickerson’s counsel was not deficient for failing to object to the prosecutor’s questions to one of the arresting officers regarding the circumstances of Nickerson’s arrest, at which the police determined who he was by reviewing a probation registration form they found during a lawful search of Nickerson’s apartment.

The State’s closing argument also was not objectionable on the basis of OCGA § 17-8-76, because the prosecutor did not actually argue to the jury that if Nickerson were convicted, he might not suffer the full penalty imposed by the court. Nevertheless, we note that the prosecutor’s statement was highly improper. The fact that Nickerson was on probation when he was arrested “was completely immaterial to the issue to be decided by the jury, i.e., whether [Nickerson] committed the crimes charged.” Moore v. State, 242 Ga. App. 249, 252 (1) (b) (529 SE2d 381) (2000). In spite of the prosecutor’s error, given the overwhelming evidence of Nickerson’s guilt we cannot find that it is highly probable the outcome of the trial would have been different without that error. Id. Thus, Nickerson was not prejudiced by his attorney’s decision not to object to the prosecutor’s improper statement, and the trial court did not err in finding that Nickerson’s trial counsel was not ineffective for failing to object to this testimony and argument.

Judgment affirmed.

Blackburn, C. J., and Eldridge, J., concur.

Decided February 6, 2001

Reconsideration denied March 29, 2001

Shandor S. Badaruddin, for appellant.

Patrick H. Head, District Attorney, Dana J. Norman, Rose L. Wing, Assistant District Attorneys, for appellee.


author: Blackburn, Chief Judge. Barnes, Judge,

text:
    A00A2494.
    FULTON COUNTY BOARD OF ASSESSORS v. SAKS FIFTH AVENUE, INC.
    (547 SE2d 620)
   Blackburn, Chief Judge.

The Fulton County Board of Assessors (Board) appeals the trial court’s grant of Saks Fifth Avenue, Inc.’s (Saks) motion for a protective order in connection with a personal property tax audit of its Fulton County location for tax years 1995 through 1998. The order allowed Saks to withhold confidential documents subpoenaed by the Board until such time as Mendola & Associates, LLC (Mendola), the private accounting firm hired by the Board to conduct the audit, entered into a confidentiality agreement concerning such documents with Saks.

In seven enumerations of error, the Board raises the following three arguments: (1) The trial court erred in granting Saks’ motion for protective order because the confidentiality of the subpoenaed documents is protected under OCGA § 48-5-314, under the employment contract between Mendola and Fulton County, and by Mendola’s responsibilities as a certified public accounting firm; (2) The trial court erred in finding both that Saks was not in contempt for failure to honor the Board’s OCGA § 48-5-300 subpoena and that Saks’ fear of disclosure of the confidential documents to third parties constituted a legal excuse which relieved it from complying with the subpoena; and (3) The trial court erred in failing to follow Wal-Mart Stores v. Bd. of Tax Assessors of Fayette County and in ignoring the public policy implications of its ruling.

These issues turn on the underlying question of the authority of the Board to require the production of a taxpayer’s confidential documents for investigative purposes. Also in question is the Board’s right to seek contempt sanctions as a result of Saks’ failure to honor the subject subpoena under the facts herein and the general authority of the trial court to issue a protective order. For the reasons set forth below, we vacate the trial court’s ruling and remand the case for further proceedings consistent with this opinion.

Turning to the facts, Saks, an Alabama corporation, operates a department store in Fulton County, Georgia. In June 1999, the Board notified Saks that it was going to conduct a personal property audit of Saks’ personal property tax returns for tax years 1995 through 1998. The Board assigned the audit to Mendola, an accounting firm with whom it had a contract to conduct such audits.

The Board is authorized to make such investigation as may be necessary to inquire into real and personal property owned in the county, to determine upon which such property all taxes due the state or the county have not been paid in full. See OCGA § 48-5-299. The Board is authorized to enter into employment contracts with persons, subject to the approval of the county governing authority, to assist the Board in the mapping, platting, cataloging, indexing, and appraising of taxable properties in the county; to make, subject to the approval of the Board, reevaluations of taxable property in the county; and to search out and appraise unreturned properties in the county. See OCGA § 48-5-298. In Eckerd Corp. v. Fayette County Bd. of Tax Assessors, this court, relying upon our Supreme Court’s holding in Sears, Roebuck & Co. v. Parsons, affirmed the right of the board of tax assessors to contract for third-party services pursuant to OCGA § 48-5-298.

In conducting the audit, Mendola requested that Saks produce certain financial and proprietary information or copies thereof. We note that Mendola, when acting as the agent of the Board, has no greater authority than the law provides to the Board. Saks responded that it would do so only if Mendola would sign a confidentiality agreement to protect the information. Saks sought agreement by Mendola that it would not disclose any information obtained by Mendola from it to any third parties and that Mendola would not use such information for any purposes other than conducting the subject audit, which conduct is prohibited by statute. Saks also requested that the Board and Mendola would return to Saks all information provided by it once the audit was completed. While this document return is not specifically required by statute, any other use of such documents or disclosure to third parties would be a violation of the law. Mendola refused to sign the agreement and insisted that Saks produce the documents although it had no lawful authority to do so.

Because Saks would not turn over the proprietary documents Mendola wished to review, the Board then served Saks with a subpoena, pursuant to OCGA § 48-5-300 (a) (1), in the nature of a discovery vehicle, for the production of the documents which Mendola wished to review in connection with Fulton County personal property account no. 0015407 and what the subpoena described simply as “a matter there pending.”

No on-premise review of documents had been attempted at that time, and no claim has been made by the Board evidenced through the record of this appeal of any failure of Saks to report property or to pay taxes. There was no hearing scheduled at 9:00 a.m. on October 14, 1999, the time the production of the proprietary documents was required at the Fulton County Board of Assessors’ Office, 141 Pryor Street, S.W., Suite 1047, Atlanta, Georgia 30303, under the subpoena. This was the only location at which the taxpayer could be required to produce any lawfully required documents.

It is clear that no hearing was in fact scheduled in connection with the subject subpoena. The subpoena refers to no hearing, and the record contains no notice to the taxpayer of the claims of the Board as to taxes owed or laws violated, the subject matter of the hearing, or the date thereof. The due process clauses of U. S. Const., Amend. XIV, and Ga. Const. 1976, Art. I, Sec. I, Par. I (see Ga. Const. 1983, Art. I, Sec. I, Par. I) require notice and a hearing by an administrative agency before any action may be taken which affects a citizen’s constitutional or property rights, even though the Act granting the right to the Board provides for an appeal to the superior court. 1958-1959 Op. Atty. Gen. 1.

The Board has only that authority provided by law to access a taxpayer’s confidential business records in the conduct of its on-premise investigative audit pursuant to OCGA § 48-5-299 or to subpoena those records authorized by OCGA § 48-5-300 to any lawfully scheduled hearing, meeting the requirements of due process. The Board has no statutory authority to issue subpoenas for discovery purposes in connection with tax audits pursuant to OCGA § 48-5-299 or to require a taxpayer to produce copies of such records for the use of the Board, except by subpoena to a lawfully scheduled hearing. A taxpayer is free to voluntarily provide copies of its records in the manner requested by the Board if it wishes to do so; however, the Board is not authorized to require the wholesale production of copies of a taxpayer’s documents for the purpose of an off-premise fishing expedition into the affairs of the taxpayer. Discovery under the Civil Practice Act does not apply to a proceeding under the Administrative Procedure Act and is not otherwise authorized by law in this matter. See Hewes v. Cooler; Ga. State Bd. of Dental Examiners v. Daniels.

The Board’s authority to require production of documents by a taxpayer, other than the on-premise inspection of records it is lawfully authorized to conduct pursuant to OCGA § 48-5-299, is limited to the production of documents pursuant to OCGA § 48-5-300, which provides:

(a) (1) Except as otherwise provided in paragraph (2) of this subsection, the county board of tax assessors may issue subpoenas for the attendance of witnesses and may subpoena of any person any books, papers, or documents which may contain any information material to any question relative to the existence or liability of property subject to taxation or to the identity of the owner of property liable to taxation or relevant to other matters necessary to the proper assessment of taxes lawfully due the state or county. Such subpoenas may be issued in the name of the board, shall be signed by any one or more members of the board or by the secretary of the board, and shall be served upon a taxpayer or witness or any party required to produce documents or records five days before the day upon which any hearing by the board is scheduled at which the attendance of the party or witness or the production of such documents is required. (2) The authority provided for in paragraph (1) of this subsection shall not apply to the following documents or records: (A) Any income tax records or returns; (B) Any property appraisals prior to the appeal process; (C) All insurance policies; or (D) Any individual tenant sales information, (b) If any witness subpoenaed by any county board of tax assessors fails or refuses to appear, fails or refuses to answer questions propounded, or fails or refuses to produce any books, papers, or documents required to be produced by an order of the board, except upon a legal excuse which would relieve the witness of the obligation to attend as a witness or to produce such documents before the superior court if lawfully required to do so, the person so failing or refusing shall be guilty of contempt and shall be cited by the board to appear before a judge of the superior court of the county. The judge of the superior court of the county shall have the same power and jurisdiction to punish the person failing or refusing to comply with the order for contempt and to require and compel the giving of the testimony or the production of the books and records as in cases of contempt committed in the presence of the court and as in cases pending in the court.

The Board’s use or possession of a taxpayer’s personal, confidential records is limited to that use which is authorized during the period of the audit and any hearing or appeal thereafter or in connection with the collection of taxes deemed to be owed by such taxpayer.

The Board is entitled to retain only those copies of the taxpayer’s records as provided by law. Any other use of the taxpayer’s personal, confidential records or the disclosure to third parties is prohibited by law. OCGA § 48-5-314 provides inter alia:

(a) (1) All records of the county board of tax assessors which consist of materials other than the return obtained from or furnished by an ad valorem taxpayer shall be confidential and shall not be subject to inspection by any person other than authorized personnel of appropriate tax administrators. As an illustration of the foregoing, materials which are confidential shall include, but shall not be limited to, taxpayers’ accounting records, profit and loss statements, income and expense statements, balance sheets, and depreciation schedules. Such information shall remain confidential when it is made part of an appeal file. Nothing in this Code section, however, shall prevent any disclosure necessary or proper to the collection of any tax in any administrative or court proceeding. (2) Records which consist of materials containing information gathered by personnel of the county board of tax assessors, such as field cards, shall not be confidential and are subject to inspection at all times during office hours. The provisions of this paragraph shall not remove the confidentiality of materials such as are specified in paragraph (1) of this subsection. . . . (b) Any person who knowingly and willfully furnishes information which is confidential under this Code section to a person who is not authorized by law to receive such information shall upon conviction be subject to a civil penalty not to exceed $1,000.00.

Following the issuance of the subpoena, Saks filed a complaint against the Board in Fulton Superior Court, requesting a temporary restraining order and interlocutory and permanent injunctive relief, until such time as the Board and Mendola, or any other accounting firm that the Board may appoint, agreed to provide minimal protection of its proprietary documents.

The Board then issued a contempt citation, pursuant to OCGA § 48-5-300, for failure to produce the requested records. Saks thereafter filed a motion to quash the subpoena and a motion for protective order in the alternative to granting plaintiff’s motion for a temporary restraining order.

After holding a hearing, the trial court refused to hold Saks in contempt and granted its motion for a protective order until such time as the parties can agree on a method which will protect Saks’ confidential business records from disclosure. The court reasoned that while OCGA § 48-5-314 (a) (1) obligated the Board not to disclose any of the confidential records obtained during an audit, it was not certain that this Code section applied to third parties, such as Mendola.

This issue was resolved in Eckerd, supra at 455-456. In that case, Eckerd appealed the trial court’s order finding it in contempt of court for failing to comply with the Board’s subpoena. Eckerd argued, inter alia, that the contract with Mendola violated its right to confidentiality under OCGA § 48-5-314. We held therein that as OCGA § 48-5-314 (a) (1) allows personnel authorized by appropriate tax administrators to access materials otherwise protected as confidential thereunder and that boards are authorized to contract for audit services under OCGA § 48-5-298, it necessarily follows that to enter into such a contract “authorizes” the contractor to access the confidential materials essential to the performance of the contract. While no disclosure was at issue in Eckerd, we noted therein that OCGA § 48-5-314 (b) makes the disclosure of confidential materials to unauthorized persons subject to a civil penalty not to exceed $1,000. Mendola is bound by OCGA § 48-5-314 (a) (1).

The Board argues that the trial court erred in granting a protective order to Saks because confidentiality is protected under OCGA § 48-5-314, the employment contract between Mendola and Fulton County protects Saks, and it is further protected by Mendola’s ethical responsibilities as a CPA.

It is patently obvious that professionals are not immune from being the subject of appropriate protective orders because of the fact that they may be bound by professional standards. We note also that there is no client relationship between Mendola and Saks, and the record contains no documentation of the standards the Board contends protects Saks. This argument is without merit.

Similarly, the contract between Mendola and Fulton County provides no protection to Saks which was not a party to the contract. We note that the Board raises this issue for the first time on appeal; however, we will exercise our discretion and address the matter. Saks was clearly not a third-party beneficiary under the subject contract, and it did not know of its existence until litigation was initiated. The contract expressly provides for the indemnification of the Board by Mendola, but does not address third-party damages. The intent of the contract as a whole must be considered, and it is difficult to conceive how a contract between the Board and an auditor could be construed to be for the benefit of the taxpayer. See American Fletcher Mtg. Co. v. First American Investment Corp.

While the Board is correct that the confidentiality requirements of OCGA § 48-5-314 are applicable to Mendola, its contention that this fact precludes the trial court from granting a protective order to Saks is erroneous. While the trial court is barred from issuing a protective order which violates statutory law, such as OCGA § 48-5-314, it has full authority under OCGA § 23-4-31 to mold its decrees to meet the demands of each situation it faces. The trial court’s determination as to the issuance of a protective order is a matter of the judge’s discretion.

We therefore review a trial court’s grant of a motion for a protective order for abuse of discretion. Clayton County Bd. of Tax Assessors v. Lake Spivey Golf Club. Absent an abuse of discretion, this court will affirm the actions of the trial court. See Torok v. Mize.

Here, the trial court erred in issuing its protective order until such time as the parties entered into a confidentiality agreement. The trial court does have full authority, however, to determine what restrictions and limitations are appropriate under the circumstances so long as its ruling does not conflict with the rights of the parties under applicable law. This court affirmed the trial court’s ruling in Wal-Mart, supra, prohibiting Mendola from either retaining or making copies of any documents produced by Wal-Mart in that case. Neither the Board nor its agent has any authority to use the taxpayer’s documents for purposes other than those specifically provided by law and are precluded from disclosing such material to third parties. The Board is not authorized to issue subpoenas for discovery purposes or to inappropriately coerce taxpayers into “voluntarily” providing copies of private documents contrary to law either directly or through the acts of its agents. It is within the authority of the court to issue any protective order it deems reasonable and necessary for the protection of the parties, consistent with this opinion. The parties are free of course to enter into an agreement on the terms of any protective order, subject to the approval of the trial court.

This court is troubled by the manner in which the Board and Mendola are conducting taxpayer audits. The record reflects that Mendola has contracts with 26 Georgia taxing authorities, plus other governmental entities, and conducts approximately 3,000 audits per year for taxing authorities performed by 25 employees. It is clear from the record in this case that the Board maintains no supervision over Mendola in the performance of its audits or in the handling of taxpayer’s documents. Mendola maintains Board stationery and subpoenas of the Board and of 31 other Georgia counties. The chairperson of the Fulton County Board of Assessors was not even aware that Mendola was conducting audits for the Board until he showed up at a Board meeting a few months before her deposition. In her deposition, the chairperson testified as follows:

Q. [By appellee’s attorney] What is your understanding of what [Mendola is] supposed to do?
A. I don’t really know. I haven’t read the contract.
Q. As chairperson, do you not have a general understanding of what —.
A. I did not sign the contract. I was not a party to that contract. I was not involved with procuring those services. I’m not familiar with the scope of services.

Deposition of Chairperson Pamela Smith, p. 13, lines 10-19.

Q. Based on your testimony, I am going to assume that you don’t have any idea of what Mr. Mendola actually does when he does an audit for the County.
A. No, I don’t.
Q. Do you know if the Fulton County Board of Tax Assessors has actually given him its letterhead to write letters on?
A. I don’t know that for sure.
Q. Do you know if when he does an audit for the Board, if he’s the taxpayer’s primary contact with the Board?
A. I don’t know.

Deposition of Chairperson Smith, p. 17, lines 17-25, and p. 18, lines 1-3.

Q. Do you know what kind of supervision the Board maintains over Mr. Mendola when he’s doing an audit?
A. No.
Q. Do you know if it maintains any supervision over Mr. Mendola when he does an Audit? . . .
A. No, I don’t know.

Deposition of Chairperson Smith, p. 18, lines 19-25, and p. 19, lines 1-2.

The chairperson testified that she had not seen a single report that had been prepared by Mendola.

The chairperson was unaware of any safeguards the Board takes to protect the confidentiality of taxpayer records. She testified as follows:

Q. Do you know if the Board of Tax Assessors takes any steps to preserve the confidentiality of any records a taxpayer produces?
A. I don’t know.
Q. You don’t know of any policies that the Board has in place?
A. I’m not aware, huh-uh.
Q. So you don’t know if the Board prohibits an outside auditor from making copies, from distributing them to other people? You just don’t have any idea?
A. I have no idea.

Deposition of Chairperson Smith, p. 30, lines 2-12.

The Board acknowledges that it has no control over what Mendola does with the taxpayers’ documents it receives. Documents and subpoenas prepared by Mendola are perfunctorily signed by the chairperson without meaningful inquiry. She testified:

Q. Did you ask any questions when they presented [the subpoena] to you about what it was for?
A. Uh-huh.
Q. What did you ask?
A. What was it for?
Q. What did they tell you?
A. Subpoena for the production of evidence.
Q. Did you ask why it was necessary?
A. No.
Q. Did you ask what documents they wanted?
A. No.
Q. Did you ask if the taxpayer made any objection to producing the stuff?. . .
A. No.
Q. Were you told that?
A. No.

Deposition of Chairperson Smith, p. 20, line 25, and p. 21, lines 1-17.

The cavalier fashion in which taxpayer audits are being handled and the potential for abuse therein are causes for concern. These are matters which should be reviewed by the Georgia Legislature and other appropriate government entities.

The Board also argues that the trial court erred in finding Saks was not in contempt for failing to honor its subpoena issued under OCGA § 48-5-300. This issue is controlled by our ruling in Presley v. Payne, where, under similar facts to the present case, this court held that “no hearing was scheduled in which the taxpayer was required to appear but the county board of tax assessors was merely investigating ‘for the purpose of examination’ in ‘its investigation of the tax liability of (the taxpayer).’ ” The trial court had held in Presley that the subpoena was issued in connection with their review of the personal property return of the taxpayer, and since Code Ann. § 91A-1441, now OCGA § 48-5-300, required such subpoenas to be served upon the taxpayer five days before the day upon which any hearing by the board is scheduled and at which the attendance of the party or witness or the production of such document is required, it was premature to issue the subpoena for the documents when no hearing was scheduled by the board. The court then found that the taxpayer was not guilty of contempt and denied the application. This court affirmed the trial court’s holding. See Presley, supra.

The Board’s argument that Wal-Mart, supra, controls this case is without merit. In Wal-Mart, an appeal from a finding of contempt for failure to comply with a subpoena from the board of tax assessors, Wal-Mart argued that the contract between the board and Mendola, as implemented, constituted an unlawful delegation of the board’s authority. The opinion of this court in Wal-Mart is not in conflict with the holding here, and in fact, both opinions rely on Eckerd, supra. Wal-Mart further argued that because of the volume of government entities Mendola represented, there was a great potential for abuse but failed to point to any example thereof. This court rejected WalMart’s arguments, but the same issues are not involved in the present case. In fact, in Wal-Mart the trial court had granted a protective order for the taxpayer which was affirmed by this court. Any other argument of the Board is either moot or without merit.

For the above reasons, we vacate the trial court’s order and remand this case for further proceedings consistent with this opinion.

Judgment vacated and case remanded.

Eldridge, J., concurs. Barnes, J., concurs specially.

Barnes, Judge,

concurring specially.

Although I agree with the majority’s view of the broad powers and wide discretion of trial courts generally in these matters, I write separately to express my view that the trial court’s resolution of this dispute by directing Saks and Mendola to draft a confidentiality agreement for the documents in dispute was within the powers and discretion of the trial court in this case. Nevertheless, I also concur with the disposition of this case because the case must be returned to the trial court in any event.

Decided March 29, 2001.

Overtis H. Brantley, Vernitia A. Shannon, Rodney T Floyd, Brenda D. King, for appellant.

Webb, Tanner & Powell, Steven A. Pickens, Matthew P. Benson, for appellee.

        Wal-Mart Stores v. Bd. of Tax Assessors of Fayette County, 246 Ga. App. 161 (539 SE2d 869) (2000).

        Eckerd Corp. v. Fayette County Bd. of Tax Assessors, 220 Ga. App. 454, 455 (469 SE2d 285) (1996).

        Sears, Roebuck & Co. v. Parsons, 260 Ga. 824, 825 (401 SE2d 4) (1991).

        Hewes v. Cooler, 169 Ga. App. 762 (315 SE2d 276) (1984).

        Ga. State Bd. of Dental Examiners v. Daniels, 137 Ga. App. 706 (224 SE2d 820) (1976).

        American Fletcher Mtg. Co. v. First American Investment Corp., 463 FSupp. 186 (N.D. Ga. 1978).

        Clayton County Bd. of Tax Assessors v. Lake Spivey Golf Club, 207 Ga. App. 693, 695 (428 SE2d 687) (1993).

        Torok v. Mize, 164 Ga. App. 357 (296 SE2d 738) (1982).

         Presley v. Payne, 163 Ga. App. 89 (294 SE2d 199) (1982).


text:
    A00A2366.
    ANDREW L. PARKS, INC. et al. v. SUNTRUST BANK, WEST GEORGIA, N.A. et al.
    (545 SE2d 31)
   Barnes, Judge.

Andrew L. Parks, Inc. and Andrew Parks (collectively “Parks”) appeal the judgment of the trial court granting a motion to clarify judgment that vacated an order dismissing, without prejudice, Parks’ complaint against SunTrust Bank, West Georgia, N.A. f/k/a Trust Company Bank of Columbus, N.A. and SunTrust Bank Card Center (“SunTrust”). The judgment also put in effect a later filed order dismissing the complaint against SunTrust with prejudice.

The record shows that Parks sued SunTrust because SunTrust placed the company on a list of merchants whose relationship with SunTrust was terminated for cause. Subsequently, SunTrust answered the complaint denying liability and asserting the defense of failure to state a claim. After discovery, SunTrust moved to dismiss Parks’ complaint under OCGA § 9-11-12 (b) (6) because it failed to state a claim on which relief could be granted. On May 14, 1999, the trial court signed an order granting this motion and dismissing Parks’ complaint with prejudice. This order, however, was not filed promptly.

Then, on May 26, 1999, the trial court signed an order dismissing Parks’ complaint without prejudice because he missed a docket call. This order, however, was filed promptly on May 28,1999. On June 16, 1999, the order signed May 14, 1999, dismissing Parks’ complaint with prejudice finally was filed.

After Parks refiled his complaint, SunTrust filed its motion asking the trial court to clarify its judgment by vacating the order filed May 28, so that the order filed June 16 would be effective. The order granting this motion was signed and filed on April 26, 2000. Parks contends this order was a nullity because the motion to clarify was not filed within the same term of court in which the two earlier orders were entered and the order filed first deprived the trial court of jurisdiction to file the second order. We agree and vacate the trial court’s order granting the motion to clarify its judgment.

“A judgment, although signed by a judge, is not ‘entered’ until it is filed with the court clerk. OCGA § 9-11-58 (b).” Preece v. Turman Realty Co., 228 Ga. App. 609, 610 (492 SE2d 342) (1997). Thus, the order merely signed on May 14 was without legal effect, and the order signed on May 26 and filed on May 28 was the legally entered order that dismissed the case without prejudice when it was filed. The order signed on May 14 was a nullity because it was not filed when the case was still lawfully pending. Judgments rendered by courts without jurisdiction are void. See Williams v. Fuller, 244 Ga. 846, 848 (2) (262 SE2d 135) (1979).

Further, although a trial judge has “inherent power during the same term of court in which the judgment was rendered to revise, correct, revoke, modify or vacate such judgment, even upon his own motion, for the purpose of promoting justice and in the exercise of a sound legal discretion,” LeCraw v. Atlanta Arts Alliance, 126 Ga. App. 656, 663 (191 SE2d 572) (1972), this authority does not extend beyond the same term of court, unless a motion to modify or vacate, et cetera, was filed within the same term of court. Piggly Wiggly Southern v. McCook, 216 Ga. App. 335 (454 SE2d 203) (1995); Clark v. Ingram, 150 Ga. App. 127, 128 (1) (257 SE2d 33) (1979). Here, no motion was filed within the same term of court. Therefore, the trial court’s authority to vacate its first entered order, if it exists at all, must be found in the Civil Practice Act. See Clark, supra, 150 Ga. App. at 128 (2).

A motion to clarify is not a motion authorized by that Act, but there is no magic in the nomenclature used. Under our rules, pleadings are judged by their function and not the name given by a party. Holloway v. Frey, 130 Ga. App. 224, 227 (3) (202 SE2d 845) (1973). Because the motion failed to assert any statutory ground for relief from a judgment listed in OCGA § 9-11-60 (d), some other basis must be found for the motion. See Gabel v. Revels, 203 Ga. App. 131 (416 SE2d 103) (1992).

On appeal, SunTrust characterizes the motion as one under OCGA § 9-11-60 (g) to correct a clerical error. We find no basis in the record to support this proposition, and as the relief sought had the effect of changing Parks’ substantive rights, the trial court had no authority to grant the motion to clarify. Hopkins v. Garner & Glover Co., 233 Ga. App. 264, 268 (1) (504 SE2d 78) (1998).

Further, the trial court has no authority to enter this order nunc pro tunc, because a nunc pro tunc order cannot be used to supply an action not then taken by the court. Moseley v. Interfinancial Mgmt. Co., 224 Ga. App. 80, 84 (5) (479 SE2d 427) (1996). The purpose of entering an order nunc pro tunc

Decided January 19, 2001

Reconsideration denied March 30, 2001

Ronald S. Iddins, for appellants.

Hatcher, Stubbs, Land, Hollis & Rothschild, Gregory S. Ellington, J. Barrington Vaught, for appellees.

is to record some previously unrecorded action actually taken or judgment actually rendered. It may not be used to supply an order not yet made by the court. A nunc pro tunc entry is an entry made now of something actually previously done to have effect of former date; . . . not to supply omitted action, but to supply omission in the record of action really had but omitted through inadvertence or mistake. The general rule is that nunc pro tunc entries are proper to correct clerical errors but not judicial errors.

(Citations and punctuation omitted.) In the Interest of H. L. W., 244 Ga. App. 498-499 (535 SE2d 834) (2000).

Accordingly, the trial court’s judgment vacating its order entered on May 28, 2000, must be vacated, and the case stands dismissed without prejudice.

Judgment vacated.

Blackburn, C. J., and Eldridge, J., concur.

Reid & Morgan, George C. Reid, for appellants.

David G. Crockett, Douglas L. Brooks, for appellees.