author: Ruffin, Judge.

text:
    A01A0918.
    A01A0919, A01A0920.
    WILBANKS v. THE STATE. KOZACHYN v. THE STATE (two cases).
    (554 SE2d 248)
   Ruffin, Judge.

A jury found co-defendants Bobby Elwyn Wilbanks, Michael Kozachyn, and Paul John Kozachyn guilty of armed robbery, kidnapping, false imprisonment, burglary, and aggravated assault stemming from their invasion into the home of Sam and Georgia Thurmond. In these companion appeals, the three co-defendants enumerate numerous errors arising from various trial court rulings. For reasons which follow, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that the home invasion occurred on the evening of April 8, 1999. Shortly after 9:00 p.m., the Thurmonds were watching television when they heard a noise. They looked around and saw a man standing in a doorway pointing a shotgun at them. According to Sam Thurmond, the man “started screaming, [g]et down[,] police [,] get down.” Suddenly, another man appeared, tackled Mr. Thurmond, and, as the two struggled, the man with the shotgun struck Mr. Thurmond with the gun barrel.

After subduing Mr. Thurmond, the two intruders bound both his and his wife’s hands and feet with duct tape and taped a small pillow over Sam’s face. The men then asked Mr. Thurmond where his safe was located and “[w]here’s that $300,000 hid at?” When Mr. Thurmond said he did not have the money, the men threatened to shoot Mrs. Thurmond. One man then put the shotgun barrel to Mr. Thurmond’s neck and said, “[w]e’re going to blow your G — d— head off if you don’t tell us where that $300,000 is hid at.” Mr. Thurmond testified that, while the two men were threatening him and his wife, he heard another intruder in the back of the house “turning things over.” The men then took Mrs. Thurmond out of the room and forced her to reveal the combination to a gun safe in the bedroom. The safe contained guns, jewelry, and approximately $35,000 in $100 bills. After clearing out the safe, the men “rummaged through” the rest of the house looking for things to steal. After spending approximately 15 to 20 minutes in the house, the intruders pulled the phones out of the walls and, as they were leaving, warned the Thurmonds: “[d]on’t move for 15 minutes, or we’ll kill you. We’ve got a man up the road on a motorcycle. There’s a man going to stay here with you for 15 minutes.”

After they left, Mrs. Thurmond wrestled the bindings from her hands and freed her husband. Mrs. Thurmond testified that she told her husband one of the men “touched me on the back and said, ‘Georgialeen, we’re not going to hurt you.’... I thought I recognized [the voice of] my nephew.”

Using a cell phone, Mrs. Thurmond called 911. When the deputy sheriffs arrived, the Thurmonds described the intruders. According to Mr. Thurmond, he determined that there were at least four men in the house. The two men that the Thurmonds initially encountered did not have their faces concealed, and Mr. Thurmond testified that he got a clear look at the man carrying the shotgun. Mr. Thurmond saw a third man, who was wearing a ski mask, standing in the foyer. Mr. Thurmond farther testified that he heard the voice of a fourth man coming from the bedroom.

Mrs. Thurmond testified that she saw three men in the house that night. She stated that neither the man with the shotgun nor the other man they initially encountered had their faces concealed and that when she was taken down the hallway into the bedroom, she saw a third man standing in the foyer wearing a ski mask.

As part of their investigation, law enforcement officers searched for a light-colored, American Motors Concord that, on the night of the incident, was spotted near the Thurmonds’ home carrying four occupants. The day after the invasion, a deputy found the car, totally burned, in a wooded area. Investigators later determined that the car belonged to Randall Vaughn.

Vaughn eventually pled guilty to several offenses arising out of his participation in the home invasion and testified for the State at trial. Vaughn identified Wilbanks, Michael Kozachyn, and Paul Kozachyn as the other intruders. Vaughn testified that he had known the Thurmonds since approximately 1961 and did not want to rob them because they were good friends. Thus, when the four men arrived at the Thurmonds’ house that evening, Vaughn stayed in the car while Wilbanks and the Kozachyns went inside. Vaughn testified that when he heard a commotion in the house, he put on a ski mask and went inside to “make sure [the Thurmonds] didn’t get hurt.” According to Vaughn, who is not Mrs. Thurmond’s nephew, he was the individual who put his hand on her back and said, “Georgialeen, it’ll be all right.” At a bond hearing and at trial, Mr. Thurmond identified Paul Kozachyn as the assailant with the shotgun. Mr. Thurmond also identified Wilbanks at trial as the individual who tackled him. Mrs. Thurmond identified Paul Kozachyn as the man with the shotgun.

Case No. A01A0918 Wilbanks v. State

1. The record reflects that, prior to trial, Paul Kozachyn gave a statement to law enforcement officers in anticipation of a plea agreement. In the statement, Paul Kozachyn indicated that he and Michael Kozachyn were the two individuals who first encountered the Thurmonds and that he thought Michael had the shotgun. Wilbanks contends that this statement “directly contradicted that of Sam Thurmond with respect to the first two individuals who entered his residence.” Wilbanks argues that, if he and Paul Kozachyn had been tried separately, he would have used Kozachyn’s testimony “in [his] effort to demonstrate the lack of reliability in Thurmonds’ [sic] identification.” Accordingly, Wilbanks asserts that the trial court erred in denying his motion for severance.

To be entitled to severance, Wilbanks was required to demonstrate: “(1) a bona fide need for [Paul Kozachyn’s] testimony; (2) the substance of the testimony; (3) its exculpatory nature and effect; and (4) that [Paul Kozachyn] will in fact testify if the cases Eire severed.” We review a trial court’s ruling on a motion for severance using the abuse of discretion standard.

In this case, Wilbanks did not demonstrate that Paul Kozachyn would in fact testify if the cases were severed. Furthermore, without Paul Kozachyn’s testimony, his out-of-court statement to law enforcement officers would be inadmissible. “[I]t is an old and sound rule which excludes as incompetent any hearsay testimony relating statements attributed to an out-of-court declarant to the effect that the declarant, and not the accused, was the perpetrator of a crime.” Because Wilbanks wanted to use the statement to show that Paul Kozachyn, and not WilbEinks, was the intruder who attacked Mr. Thurmond, it would have been inadmissible hearsay in a separate trial. Accordingly, the trial court did not abuse its discretion in denying Wilbanks’ motion.

2. Wilbanks also asserts the trial court erred in denying his motion for change of venue. Again, we disagree.

A criminal defendant seeking a change of venue must establish: “(1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible.” Inherent prejudice may be shown by proof of numerous, widely circulated, emotional media reports about the crime and by “widespread community fear and bias.” A trial court has discretion in ruling on the motion, and we will not disturb the trial court’s ruling unless the court abuses that discretion.

In this case, Wilbanks argues that “[i]n view of the extensive publicity, the sensational nature of the crime, and the prominence of the victims, [he] was denied a fair trial by having his case heard in Banks County.” As evidence, Wilbanks cites six newspaper articles which recount the circumstances of the home invasion, the arrests of the defendants, and Vaughn’s plea bargain. However, Wilbanks has not pointed to any inflammatory language in the articles that rendered venue in Banks County inherently prejudicial, and our review of the articles reveals no such content. And, although Wilbanks asserts that numerous members of the venire acknowledged that they had read or heard something about the case, their mere familiarity does not equate to “widespread community fear or bias.”

Wilbanks also argues that the large percentage of the venire struck for cause established actual prejudice to a degree that rendered a fair trial impossible. According to Wilbanks, “[tjhirteen venire persons who had heard about the case or knew the Thurmonds were excused for cause.” Although the record confirms that the trial court excused 13 of the 60 venire members for cause, it belies Wilbanks’ assertion that all 13 were excused due to their familiarity with the case or with the Thurmonds. Rather, the record reveals that only seven of the panel members were excused due to preconceived notions about the case. Another member was excused because he knew the victims and was thus more inclined to believe their testimony. A ninth member of the venire, who knew the victims but stated that she was “completely impartial” and could decide the case based solely on the evidence and the law, was excused by the court in an “abundance of caution.” The other four members were excused for reasons totally unrelated to any prior knowledge about the case or the victims. Thus, only nine of sixty venire members, or fifteen percent, were excused for reasons related to their familiarity with the case or the victims. As for the remaining members, the record reveals that they were questioned about their familiarity with the case, and Wilbanks “has not shown that any of them were unable to lay aside their impressions and render a verdict based on evidence presented in court.” For these reasons, we conclude that the trial court did not abuse its discretion in denying Wilbanks’ motion for a change of venue.

3. The record shows that when the sheriff was escorting the defendants into the courtroom after a lunch break, ten prospective jurors who were sitting in a hallway saw them in handcuffs. Another prospective juror saw the defendants in a police patrol car in the parking lot. The defendants argued that these incidents tainted the entire panel and moved for a mistrial. The trial court denied the motion, but permitted defense counsel to thoroughly question each of the prospective jurors about the matter. All but one of the panel members who acknowledged that they saw the defendants in handcuffs said that it would not influence their verdict, and the trial court excused the one exception. On appeal, Wilbanks asserts that the trial court erred in denying his motion for mistrial. We disagree.

As a general rule, jurors should not be permitted to see a defendant handcuffed in the courthouse. However, where one or more of the jurors by chance sees a defendant in handcuffs, whether to grant a mistrial is within the trial court’s discretion. Here, Wilbanks has not shown how he was prejudiced by the viewing. Accordingly, we cannot say that the trial court abused its discretion in denying his motion for mistrial.

4. Wilbanks asserts that the trial court erred in denying his challenge to the State’s strike of the only African-American on the venire based on Batson v. Kentucky. In reviewing this assertion, we are mindful that “[t]he trial court’s decision on a Batson motion rests largely upon assessment of the prosecutor’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.”

The transcript reveals that, during voir dire, one of the defendant’s attorneys asked if anyone knew Kirby Gary, the operator of a local used car lot. Five panel members responded affirmatively. Of those five, one was excused for an unrelated reason and two others, who were at the end of the panel list, were not reached when the jury was struck. Of the two remaining potential jurors who responded that they knew Gary, one was an African-American who stated: “I’ve just heard of him just in passing. I work over near there.” The other potential juror, who was white, stated: “I sold him a car . . . [a]nd I knew his mother.” During jury selection, the State struck both of these venire members. When the defendants objected to the State’s strike of the only African-American, the district attorney explained: “I’ve struck the only two people in the panel that had business dealings with Kirby Gary. Kirby Gary is a dope-dealing criminal who also happens to be a State’s witness. I want no one on the panel that knows him whatsoever, and I struck the only two people that indicated that they knew him.”

Wilbanks argues that “[t]he fact that [the African-American juror] “had heard of’ Gary ‘in passing' was not a valid reason to strike [him]” and that the trial court therefore erred in denying his motion. “Under existing precedent, a race-neutral explanation need not be persuasive, plausible or make sense, but is an explanation “based on something other than the race of the juror. Unless a discriminatory intent is inherent in the proponent’s explanation, the reason offered will be deemed race(-)neutral.’ ” Though the juror’s passing familiarity with Gary may be of questionable relevance, it is clearly a race-neutral explanation.

The remaining question, “whether [Wilbanks] carried his burden of showing the proffered reason [ ] [was] merely designed to ‘cover up’ purposeful racial discrimination,” was properly left for the trial court to resolve. Although Wilbanks argues on appeal that the State could have taken further steps to ensure that the other three potential jurors who knew Gary — the two at the end of the panel list and the one dismissed for cause — would not be impaneled, and that this constitutes evidence of discriminatory intent, these matters were properly left for the trial court to resolve. Moreover, because Wilbanks did not raise these arguments below, he has waived them for appeal. Accordingly, on the record before us, we conclude that the trial court’s determination that the State did not engage in purposeful racial discrimination is not clearly erroneous.

5. Wilbanks asserts two errors related to the trial court’s rulings allowing a witness to testify after the State removed him from its witness list. The transcript reveals that the witness, Jessie Roger Lord, was a lifelong acquaintance of Wilbanks and a career criminal. The day after the home invasion, Wilbanks contacted Lord and told him about the incident. Lord, who had been a Federal Bureau of Investigation (FBI) informant, contacted the FBI, and an agent equipped him with a recording device which, on April 13, 1999, he used to tape a conversation with Wilbanks.

At a motions hearing three and one-half weeks before trial, the State identified Lord as a witness and provided the defendants with copies of Lord’s criminal history. The court ordered “the State to make a good faith effort” to provide the defendants with certified copies of Lord’s criminal convictions prior to trial.

On the first day of jury selection, the State announced that it would not be calling Lord as a witness. After the announcement, Wilbanks’ attorney made “a motion in limine in case [the district attorney] tries to get those [tape-recorded conversations] in.” The district attorney responded, “I will not attempt to introduce the tapes unless I call Mr. Lord as a witness.” The court granted the motion. Wilbanks’ attorney then stated, “[s]o Mr. Lord will not testify in this trial,” and the trial judge responded, “[t]hat only the State can say for sure. I’ll not permit his statement to be introduced unless he testifies at trial.” A dispute then arose concerning the State’s failure to provide the defendants with certified copies of Lord’s criminal convictions, and the defendants continued to insist that the State definitively confirm whether Lord would testify, claiming that it affected trial strategy, such as whether they would move for a continuance based on the State’s failure to provide the certified copies. In resolving the controversy, the trial judge stated: “I don’t believe that we need to go into the efforts of the State to secure those prior convictions unless and in fact Mr. Lord testifies. . . . If Mr. Lord is called to testify, we’ll revisit all these issues.”

Contrary to its earlier announcement, the State called Lord as a witness and introduced a recorded conversation between Lord and Wilbanks. According to the district attorney, he previously did not believe Lord’s testimony would be necessary because the State had reached a plea agreement with Vaughn, in which Vaughn agreed to testify for the State. However, according to the district attorney, Vaughn did not testify as expected. In ruling that Lord could testify, the trial court found, that the State had identified him as a witness well before trial and that the district attorney was acting in good faith when he originally announced that Lord would not be called as a witness. The court, however, granted Wilbanks’ motion to continue the trial until the next day to provide the defendants time to prepare for Lord’s testimony.

(a) Wilbanks asserts that the trial court erred in permitting Lord to testify. We disagree. Georgia law requires the State to identify its witnesses to criminal defendants at least ten days before trial, but provides an exception where the trial judge finds “good cause.” When a trial court invokes the exception, our Code merely requires that defense “counsel shall be afforded an opportunity to interview such witnesses prior to the witnesses being called to testify.” “The witness list rule is designed to prevent a defendant from being surprised at trial by a witness that the defendant has not had an opportunity to interview,” and a trial court’s decision to allow a witness to testify will not be reversed on appeal absent an abuse of discretion.

In this case, we note initially that although the district attorney was steadfast in his representations before trial that he did not anticipate needing Lord’s testimony, the trial judge did not foreclose the possibility that Lord would be permitted to testify. Considering these circumstances, along with the trial court’s finding that the State was acting in good faith, the fact that the defendants were fully aware of the substance of Lord’s potential testimony, and the trial court’s grant of a continuance, we conclude that the trial court did not abuse its discretion in admitting the testimony.

(b) Wilbanks also asserts that the trial court erred in allowing the State to play to the jury the recorded conversation between Lord and Wilbanks. Wilbanks argues that the court’s admission of the tapes violated its earlier motion in limine to exclude the tapes from evidence.

Wilbanks has misconstrued the trial court’s ruling on his motion in limine. Motions in limine

may be used two ways: 1) The movant seeks, not.a final ruling on the admissibility of evidence, but only to prevent the mention by anyone, during the trial, of a certain item of evidence or area of inquiry until its admissibility can be determined during the course of the trial outside the presence of the jury; and 2) The movant seeks a ruling on the admissibility of evidence prior to the trial.

In this case, the transcript clearly reflects that Wilbanks did not seek an order on the admissibility of the tapes, but only a provisional order “in case [the district attorney] tries to get those [tape-recorded conversations] in.” Indeed, the court granted the motion only after the district attorney responded, “I will not attempt to introduce the tapes unless I call Mr. Lord as a witness.” Furthermore, before the court allowed the State to play the tapes, it entertained the defendants’ objections to their admissibility outside the presence of the jury. Under these circumstances, we find no error.

(c) Wilbanks argues that the trial court’s admission of the taped conversations violated his Fifth and Sixth Amendment rights. Specifically, Wilbanks argues that Lord was a State agent at the time he recorded the conversation and that in both Overby v. State and State v. Rogers, we ruled that a defendant in custody who is suspected of a crime must be informed of his rights against self-incrimination prior to being interrogated by such State agents. Wilbanks concedes, however, that at the time Lord taped the conversation, “the Appellant was not in custody.” Accordingly, this argument is without merit.

As for Wilbanks’ Sixth Amendment argument, it is clear that a person’s right to counsel attaches only “at or after the time that judicial proceedings have been initiated against him — whether by way of formal charge, preliminary hearing, indictment, information or arraignment.” It is undisputed that when Lord taped the conversations, judicial proceedings had not yet commenced against Wilbanks. Thus, this argument fails as well.

6. Wilbanks asserts that the trial court erred in denying his motion in limine to exclude hearsay testimony establishing a similar transaction. The similar transaction evidence showed that, in 1985, Wilbanks and an accomplice invaded a home in South Carolina. Wilbanks pled guilty to armed robbery and burglary charges arising from the invasion. In this case, the State sought to establish the similar transaction with copies of the indictment, guilty plea, and sentence, and through testimony from one of the investigating officers, Gene Stone. During the State’s proffer of Stone’s- testimony, Stone revealed that the victim was deceased, talked about the victim’s account of the invasion, and related statements made to Stone by Wilbanks’ co-defendant. The court admitted evidence of the indictment, plea, and sentence. As for Stone’s testimony, the trial judge stated: “I think it’s clear that Mr. Stone received all[, or most,] of this information from [the victim]. ... I think that . . . his being deceased is a necessity exception to the hearsay rule.”

On appeal, Wilbanks does not challenge the trial court’s ruling that the victim’s statements fell within the necessity exception to the hearsay rule, but argues that “the statements of the co-defendant were clearly hearsay and, as a matter of law, would lack the indicia of reliability required for the necessity exception to apply” We need not decide whether the trial court erred in admitting Stone’s testimony about the co-defendant’s statements because the purported hearsay was merely cumulative of evidence establishing the similar transaction, including the indictment and plea, and Stone’s other testimony. Under these circumstances, “it is highly probable that the court’s error[, if any,] did not contribute to the verdict, and was thus, harmless.”

7. At the sentencing hearing, the State introduced evidence, for recidivist punishment, of Wilbanks’ guilty plea to offenses arising out of the 1985 South Carolina home invasion. That evidence showed that Wilbanks, who was represented by counsel, signed a statement on the back of each indictment acknowledging that he pled “guilty to the charge in the indictment.” In addition, the State pointed to Stone’s testimony at the similar transaction hearing in which he stated that he was present when Wilbanks pled guilty. Although Stone did not recall everything that was said at the plea hearing, he heard the judge go over Wilbanks’ rights and specifically remembered the judge reviewing with Wilbanks his right to a jury trial and his right to not plead guilty. Stone further testified that he recalled the judge asking Wilbanks whether he was pleading guilty because “someone promised him something,” and Wilbanks responding that “he was pleading guilty because he was guilty of the crime.”

In response to the State’s evidence, Wilbanks testified that he did not knowingly and voluntarily enter the plea in the prior case because the trial judge did not inform him of his rights and that the only reason he pled guilty was because his appointed counsel “threatened [him] with the worst” if he did not enter the plea. Notwithstanding Wilbanks’ testimony, the trial court in this case found that Wilbanks’ prior plea was voluntary and considered it in sentencing him. On appeal, Wilbanks asserts that the trial court erred in sentencing him as a recidivist based on the prior plea. We disagree.

In determining whether recidivist punishment is appropriate in a nondeath penalty case, the initial

burden is on the State to prove both the existence of the prior guilty pleas and that the defendant was represented by counsel. . . . Upon such a showing, the presumption of regularity is then applied and the burden shifts to the defendant to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. Defendant can attempt to meet his burden of production with a transcript, with testimony regarding the taking of the plea, or with other affirmative evidence. A silent record or the mere naked assertion by an accused that his prior counseled plea was not made knowingly and intelligently is insufficient. If the defendant is able to present evidence that a constitutional infirmity exists, then the burden of proving the constitutionality of the plea shifts to the State.

In a case like this, where the burden shifts back to the State, and the State attempts to meet its burden with less than a “ ‘perfect’ transcript of the taking of the guilty plea,. . . the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.”

In this case, the State met its initial burden with proof of the guilty pleas and proof that Wilbanks was represented by counsel. Thus, a presumption of regularity applied to the plea hearing. Wilbanks’ only evidence of procedural irregularities was his own self-serving testimony that the South Carolina trial court did not advise him of any of his rights and that the only reason he pled guilty was because his attorney “threatened” him. Wilbanks’ testimony, however, was contradicted, in part, by Stone’s testimony that he heard the judge going over Wilbanks’ rights, that he specifically recalled the trial judge reviewing Wilbanks’ right to a jury trial and to not plead guilty, and that Wilbanks acknowledged that he pled guilty because he was guilty. The sentencing judge in this case, who was charged with weighing this evidence and assessing the credibility of the witnesses, was authorized to dismiss Wilbanks’ self-serving, impeached testimony that the South Carolina court totally disregarded his rights, in favor of the State’s conflicting evidence and the presumption of regularity. Under these circumstances, the trial court did not err in finding that Wilbanks’ plea was knowing and voluntary and in considering the plea for recidivist sentencing.

Case No. A01A0919 Kozachyn v. State

8. Michael Kozachyn asserts that the evidence was insufficient to support his conviction because the only evidence of his guilt was the testimony of an accomplice, Vaughn, which was not sufficiently corroborated. We disagree.

Initially, we note that in reviewing Kozachyn’s assertion, we review the evidence presented at trial in the light most favorable to support the jury’s verdict and determine whether this evidence is sufficient to authorize a rational trier of fact to find Kozachyn guilty of the crimes charged beyond a reasonable doubt. Although Kozachyn is correct that he could not be convicted based solely on Vaughn’s uncorroborated testimony,

the sufficiency of the corroboration evidence is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting a defendant with the crime, the verdict is legally sufficient. The necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime.

An accomplice’s testimony may be corroborated by the testimony of a second accomplice.

In this case, Vaughn testified that Michael Kozachyn and Paul Kozachyn were brothers and that both participated in the home invasion. Mr. and Mrs. Thurmond partially corroborated this testimony by identifying Paul Kozachyn as one of the intruders. More significantly, however, during Wilbanks’ recorded conversation with Lord about the home invasion, Lord asked Wilbanks, “how many did it take[,]” and Wilbanks responded, “the two brothers. They’re good for what they do, now. I mean, I’m telling you the truth.”

In addition to this evidence, Vaughn testified that immediately after the robbery, they all went to Wilbanks’ house where they split up the money, and he then accompanied the Kozachyn brothers back to the house where the three men lived with Michael and Paul’s mother. This testimony was corroborated by the mother’s testimony that, the following day, Friday, April 9, she saw Michael stash what she assumed was his paycheck money in a cookie box. The mother apparently assumed that this was Michael’s paycheck money because he was paid on Fridays and by the end of the weekend he was always broke. However, Michael’s employer testified that Michael quit his job the day before the home invasion and that he did not pick up his paycheck that Friday. While this evidence is circumstantial, it sufficiently corroborates Vaughn’s testimony that Michael Kozachyn participated in the home invasion.

9. Michael Kozachyn asserts that the trial court erred in denying his motion for severance. In ruling on a motion for severance, a trial court must consider: “(1) [w]hether a joint trial will create confusion of evidence and law; (2) whether there is danger that evidence implicating one defendant will be considered against the other, despite cautionary instructions to the contrary; and (3) whether the co-defendants will press antagonistic defenses.” To support his assertion that the trial court erred in denying his motion, Kozachyn must “do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.”

(a) To meet this burden, Michael Kozachyn first argues that he should have been tried separately because there was only slight evidence of his guilt, and his conviction therefore likely resulted from a spillover of the substantial evidence of his co-defendants’ guilt. Specifically, Kozachyn points to Mrs. Thurmond’s testimony that she thought she recognized the voice of the person who told her not to worry as that of her nephew, who was not charged with the crime. According to Kozachyn, this evidence shows that the nephew was, in fact, the fourth intruder, thus establishing his innocence. In addition, Kozachyn contends that the jury would likely have acquitted him, but for Mr. Thurmond’s identification of Paul Kozachyn and Wilbanks, the taped conversation between Lord and Wilbanks, Lord’s testimony about Wilbanks’ admission of guilt, and evidence of Wilbanks’ similar transaction.

While we do not dispute that “ ‘the state submitted more evidence against [Wilbanks and Paul Kozachyn] than against [Michael Kozachyn], we do not believe it highly probable that [Michael Kozachyn] was convicted as the result of a spillover of the greater volume of evidence adduced solely against [his co-defendants].’ ” As for Kozachyn’s assertion that the nephew’s presence precluded a finding that he, Kozachyn, was one of the four intruders, Vaughn testified that he was the one who patted Mrs. Thurmond on the back and told her not to worry. Thus, the evidence shows that Mrs. Thurmond was mistaken about the presence of her nephew in the house that evening. Furthermore, while the evidence corroborating Vaughn’s testimony was arguably slight, the recorded conversation and the mother’s testimony circumstantially informed the jury that the Kozachyn brothers participated in the home invasion and that Michael Kozachyn was seen hiding his share of the theft proceeds in a cookie box the day after the incident.

Moreover, the circumstantial nature of this corroborating evidence does not necessarily diminish the probative value of Vaughn’s unequivocal identification of Michael Kozachyn as a participant in the home invasion. And, while Mr. Thurmond was unable to identify Michael Kozachyn as a participant in the invasion, this is not necessarily a testament of Kozachyn’s innocence. Rather, it is likely attributable to the fact that Thurmond heard, but did not see, Kozachyn during the invasion. Finally, the transcript shows that, prior to the State introducing the similar transaction evidence against Wilbanks, the trial court instructed the jury that the evidence “is not to be considered by you for any purpose regarding Michael Kozachyn or Paul Kozachyn. The evidence you’re about to hear has nothing at all to do with either of those two defendants.” Although Wilbanks’ prior act was similar to the instant home invasion, the similar crime evidence in no way implicated Michael Kozachyn as a participant in that crime, and he has not shown why the jury would consider the evidence against him, despite cautionary instructions to the contrary. Accordingly, we conclude that the trial court did not abuse its discretion in denying Kozachyn’s motion to sever based on a possible spillover of evidence against his co-defendants.

(b) Kozachyn also contends that the trial court should have granted a severance because he and his co-defendants presented antagonistic defenses and trial strategies. The only purportedly antagonistic tactic raised by Kozachyn relates to the Thurmonds’ identification of Wilbanks and Paul Kozachyn as two of the intruders. Michael Kozachyn contends that, during cross-examination, his co-defendants vigorously attacked the Thurmonds’ identification testimony, while he never disputed that the two co-defendants were guilty. Thus, Kozachyn asserts, his strategy was to not challenge the Thurmonds’ identification testimony during cross-examination.

The record belies Kozachyn’s assertion. During his cross-examination of Mr. Thurmond, Kozachyn’s trial counsel challenged his recollection of the physical characteristics of Paul Kozachyn, the shotgun wielding intruder, and pointed out that Mr. Thurmond was unable to identify Paul Kozachyn in a photo lineup. Although it appears that Michael Kozachyn attempted to establish that he was not one of the two unmasked initial intruders in the home, and that Mrs. Thurmond’s nephew was in the home, he has not shown how such strategy conflicted with the tactics of his co-defendants, or how he was prejudiced by the court’s refusal to sever the trial on this ground. Accordingly, this enumerated error is without merit.

10. Michael Kozachyn asserts that the trial court erred in overruling his objection to an improper comment by the prosecutor. The comment was made during the district attorney’s direct examination of the Kozachyns’ mother, Anna Walker, who testified that she was having financial difficulty. Nonetheless, Walker acknowledged that eight days after the home invasion she purchased a car with $4,500 in $100 bills. While on the witness stand, Walker asked the district attorney: ‘Would you like to know where it came from?” The district attorney responded: “I know where it came from. Thank you.” The court overruled a defense objection to the prosecutor’s response, but later acknowledged that “the District Attorney’s response was improper.” Although the trial court agreed to give a curative instruction, the jurors had already been excused for the day, and when they returned the following day, the court did not give an instruction. Kozachyn, however, never brought the matter to the court’s attention. Under these circumstances, Kozachyn cannot now complain of the court’s failure to instruct the jury on the matter.

11. Michael Kozachyn asserts that the trial court erred in denying his motion to remain in the county jail while his appeal is pending. The court denied the motion, finding that “the Banks County Jail is an insecure and unsafe facility to house the Defendant during the appeals process.” On appeal, Kozachyn generally argues that “he was not able to assist his attorney in his appeal. . . [or] articulate arguments which could have led to a reversal of his convictions.” Thus, Kozachyn argues, because OCGA § 42-5-50 (c) required the court to grant his motion, his convictions should be reversed. We disagree.

Pretermitting whether the trial court erred in denying the motion, OCGA § 42-5-50 (c) does not provide for reversal of a conviction if a trial court refuses to keep a convicted defendant in the county jail, and we decline to create such a remedy. Furthermore, notwithstanding Kozachyn’s general assertion that the court’s ruling prevented him from assisting in his appeal, he has not shown how his assistance would have resulted in a reversal. Under these circumstances, we find no grounds for reversal.

12. Michael Kozachyn asserts that the trial court erred in: denying his motion for change of venue; denying his motion for mistrial after numerous members of the jury venire saw him in handcuffs; denying his Batson challenge to the State’s strike of the ónly African-American on the venire; and allowing Lord to testify after he was removed from the State’s witness list. Kozachyn’s arguments in support of these asserted errors are identical to those raised by Wilbanks, which we addressed and rejected above. Accordingly, we conclude that the arguments are without merit.

Case No. A01A0920 Kozachyn v. State

13. As with the other two defendants, Paul Kozachyn asserts that the trial court erred in denying his motion for severance. Kozachyn argues that the trial court should have severed the trial because most of the evidence implicated Wilbanks, and this evidence likely spilled over against him. Upon reviewing the evidence, we “do not believe it highly probable that [Paul Kozachyn] was convicted as the result of a spillover of the greater volume of evidence adduced solely against [Wilbanks].” In addition to Vaughn’s testimony describing Kozachyn’s participation in the invasion, both Sam and Georgia Thurmond positively identified him at trial as the assailant with the shotgun. Thus, we find no abuse of discretion in the court’s denial of the motion.

14. During voir dire, potential jurors were asked whether they knew or had heard of Vaughn, who the district attorney stated “was originally a co-defendant in this case, . . . and he will be testifying. . . . He’ll be receiving, after he testifies, a prison sentence of fifteen years, five years to be served in confinement.” The trial court overruled a defense objection to the district attorney’s disclosure of Vaughn’s plea bargain. On appeal, Kozachyn argues that “[a] mistrial was absolutely necessary at that point to protect Appellant’s Constitutional rights!,] and the denial of such mistrial is certainly grounds for reversal of his subsequent conviction.” We find no error.

Despite Kozachyn’s assertion in his brief, he has not shown on the record that he ever moved for a mistrial based on the statement. Accordingly, he has waived the right to assert that issue on appeal. Furthermore, even if Kozachyn had raised the issue, “the prosecutor’s reference did not violate OCGA § 24-3-52, which prohibits the confession of one joint offender from being admissible in evidence against another joint offender.” Finally, “[a]ny prejudice which might have resulted from the statement was nullified when [Kozachyn’s] co-defendant, who had entered a plea of guilty, was called as the state’s witness; the jury learned nothing more by inference from the [prosecutor’s] statement than it later learned directly from the state’s witness himself.”

15. In two enumerations of error, Paul Kozachyn asserts that the trial court erred in admitting testimony concerning the Thurmonds’ out-of-court identification of him as the intruder with the shotgun and in failing to hold an evidentiary hearing on his motion to suppress the out-of-court identification. According to Kozachyn, the Thurmonds were unable to identify him during a photographic lineup, and their identification of him at a bond hearing, in which he was the only defendant present, was impermissibly suggestive. However, Kozachyn has not cited to that portion of the record containing his motion to suppress and has not otherwise shown how he preserved these enumerated errors for appellate consideration. Indeed, in violation of Court of Appeals Rule 27 (a) (1), Kozachyn has not included a statement establishing how he preserved the error.

Furthermore, the transcript reveals that, on direct examination, when the prosecutor asked Sam Thurmond whether he was able to identify any of the intruders at a bond hearing, Kozachyn’s counsel posed only the following objection: “If your Honor, please, that’s — I would object to that at this point in time. What he testifies to what he knows at this point in time and what he did after the incident occurred and out of court — I mean, out of the area over there is certainly not admissible.” The court overruled the objection.

We are unable to decipher the precise grounds raised by Kozachyn in his objection, and it appears that, on appeal, he may be relying on Wilbanks’ motion in limine, and extensive argument before the trial court, seeking to exclude evidence of the victims’ out-of-court identification of Wilbanks. Although the trial court permitted Paul Kozachyn to “adopt all of the motions” of his co-defendants, such ruling did not excuse Kozachyn from articulating, to the trial court, the specific reasons why the court should have excluded the victims’ testimony concerning their out-of-court identification of him. Moreover, because Paul Kozachyn failed to raise these specific arguments, the trial court never had the opportunity to rule upon them. Accordingly, Kozachyn has waived consideration of these enumerated errors on appeal.

16. In two separate enumerations of error, Paul Kozachyn asserts that the trial court erred in admitting the Thurmonds’ trial testimony identifying him as one of the assailants and in denying him “the opportunity to voir dire [Sam Thurmond] on the basis of his identification of [Kozachyn].” Again, however, Kozachyn has not shown how he preserved these arguments for appellate review. Under these circumstances, Kozachyn has waived review of the asserted errors.

17. When the State identified Lord as a witness three and one-half weeks before trial, the district attorney provided defendants with copies of Lord’s criminal history, which showed that, on twenty-four occasions over thirty-four years, he had been charged with committing crimes throughout the country and that he had been convicted of most of the offenses. The court ordered the State to make a good faith effort to provide the defendants with certified copies of the convictions prior to trial. It appears, however, that the State only obtained a certified copy of one of Lord’s many convictions. Paul Kozachyn asserts that the trial court erred in allowing Lord to testify because the State did not make a good faith effort to obtain copies of the other convictions.

In response to the defendants’ objections, the State proffered the testimony of William Filson, an FBI special agent working on the matter for the State. Filson testified that he was able to obtain a copy of Lord’s conviction on the most serious charge, kidnapping, and that he made “several phone calls,” but was unable to obtain certified copies of the remaining convictions. According to Filson, many of the people he contacted about obtaining copies informed him that, because most of the convictions were from the 1960s, it was going to require a significant amount of time and research to locate the documentation. Filson was also informed that, due to the age of some of the convictions, the records had been destroyed. Based on this testimony, the trial court found that “Agent Filson’s efforts were made in good faith” and ruled that Lord would be permitted to testify.

The trial court’s “enforcement of its [discovery] directives is a matter committed primarily to the . . . court’s sound exercise of discretion.” Considering Filson’s testimony, we conclude that the court did not abuse its discretion in allowing Lord to testify. Furthermore, in light of the fact that Lord was extensively cross-examined about his criminal history at trial, the trial court’s decision did not constitute harmful error requiring reversal.

18. Paul Kozachyn asserts that the trial court erred in admitting into evidence the tape-recorded conversation between Lord and Wilbanks. The transcript shows that, in admitting the recorded conversation, the trial court found

that in this case the co-Defendants were still at large, that there was a conspiracy to commit this crime and a conspiracy to cover up the crime. The conspiracy to cover up the crime was still ongoing when Mr. Wilbanks made those statements to Mr. Lord. And I think because they were made during the conspiracy to conceal the crime they’re admissible.

We agree with the trial court.

OCGA § 24-3-5 provides that “[a]fter the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.” Under this Code section, “[t]he declarations of a conspirator, made during the course of a conspiracy, including the concealment stage, are admissible against co-conspirators.”

In this case, the evidence showed that the defendants were together prior to the home invasion, that they participated in the home invasion together, and that after leaving the Thurmonds’ home, they stayed together to divide the proceeds of their criminal enterprise. “The concerted actions of [the co-defendants] were sufficient to establish a prima facie case of conspiracy to commit the [offenses].” Furthermore, inasmuch as it is evident from the recorded conversation that the co-conspirators were intent on concealing the crime, the trial court correctly found that the concealment phase of the conspiracy was ongoing. Under these circumstances, the recording was properly admitted into evidence.

19. Paul Kozachyn asserts that the trial court erred in “repeatedly admitting improper character evidence.” We review the trial court’s rulings on these matters for abuse of discretion.

(a) During the State’s direct examination of Lord, the district attorney questioned Lord about his relationship with Wilbanks. The district attorney asked Lord: “Is [Wilbanks] comfortable around you, as far as talking about things with you?” Lord responded: “All thieves is comfortable around each other, yes.” The trial court denied Kozachyn’s motion for mistrial based on the response and his request for curative instructions. On appeal, Kozachyn asserts the court erred because the response improperly placed Wilbanks’ character into evidence and also improperly tainted the jury’s view of him.

Inasmuch as Lord’s comment did not concern Kozachyn, it is difficult to discern how the statement tainted the jury’s view of him. Furthermore, an unresponsive answer, such as the one at issue here, “does not improperly place the defendant’s character in issue.” Finally, even if Lord’s answer did improperly imply that Wilbanks was a thief, the testimony was merely cumulative of other evidence already before the jury which established that, in 1985, Wilbanks pled guilty to armed robbery and burglary charges.

(b) Paul Kozachyn also argues that the trial court erred in failing to grant a mistrial due to the State’s failure to redact inadmissible character evidence from Lord’s tape-recorded conversation before it was played to the jury. This enumeration of error is without merit.

Kozachyn generally argues the tape contained inadmissible character evidence, but has failed to identify which statements constitute such evidence or where they are located in the transcript. It appears that Kozachyn expects the Court to search the transcript for evidence supporting his assertion and to advance the appropriate legal argument on his behalf. However, “[i]t is a sound rule of appellate practice that the burden is always on the appellant in asserting error to show it affirmatively by the record. [Paul Kozachyn] has not met his burden and it is not the function of this court to cull the record on behalf of a party in search of instances of error.”

(c) Paul Kozachyn similarly argues that a limiting instruction given by the court after the tape was played to the jury was insufficient to remove the taint on his character. However, the transcript shows that, after the court instructed the jury, Kozachyn never raised the argument he raises here. Under these circumstances, Kozachyn’s assertion that the trial court’s instruction was insufficient has been waived.

(d) During Sam Thurmond’s direct examination, the prosecutor asked him how long he had known Wilbanks and if he knew whether Wilbanks lived in the area his whole life. Thurmond responded: “I don’t know. I lost track of him. I went in the Navy when I was 19 and ... I lost track of him. I read about him in the paper a few times.” Wilbanks objected on the ground that the response improperly placed his character in evidence, and the trial court denied the motion. On appeal, Paul Kozachyn merely argues that the trial court’s ruling was error. Presumably, Kozachyn contends that the statement somehow tainted his character. Inasmuch as he never raised any objection before the trial court, he has waived any alleged error on appeal.

Decided August 17, 2001

Healy & Svoren, Timothy P. Healy, for appellant (case no. A01A0918).

William D. Hedían III, for appellant (case no. A01A0919).

(e) During the State’s direct examination of Walker, Kozachyn’s mother, the district attorney asked if she knew where Vaughn and Michael Kozachyn worked. Walker responded: “When they worked, it was sporadic. You have to understand, they were on drugs.” Kozachyn objected to the statement and moved for a mistrial. Finding the answer unresponsive, the triál court denied the motion for mistrial, but stated that it would give a curative instruction if the defendants requested one. After the colloquy, the court adjourned for the day, and none of the defendants followed up with the court on the instruction. As stated above, “[a] party cannot during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later.” Accordingly, Paul Kozachyn has waived appellate review of this assertion.

20. A few days after the home invasion, Sam Thurmond described his assailants to Deputy Sheriff Mickey Watkins, who created a report. The transcript reflects that, while cross-examining the Banks County Sheriff about the descriptions, defense counsel asked the sheriff about the contents of the report, but the trial court ruled the testimony was hearsay. On appeal, Kozachyn asserts that the ruling was erroneous. Inasmuch as the trial court correctly ruled that the testimony was inadmissible hearsay, we find no error.

21. Paul Kozachyn asserts that the trial court erred in failing to grant a mistrial based on the district attorney’s statement to Walker that he knew where she got the money to purchase her car. We addressed this argument above, and for the reasons discussed there, we conclude that Paul Kozachyn waived appellate review.

22. Finally, Paul Kozachyn asserts that the trial court erred in denying his motion for mistrial after numerous members of the jury venire saw him in handcuffs. For the reasons stated above, we conclude that this enumeration of error is without merit.

Judgments affirmed.

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

Thomas M. Strickland, for appellant (case no. A01A0920).

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

       Evidently, Mrs. Thurmond was mistaken, and her nephew was not charged with the crime.

       (Punctuation omitted.) Keener v. State, 215 Ga. App. 117, 118 (1) (449 SE2d 669) (1994).

       See id.

       See id.

        Grant v. State, 212 Ga. App. 565, 566 (1) (a) (442 SE2d 898) (1994).

       (Citations and punctuation omitted.) Morrill v. State, 216 Ga. App. 468, 470 (3) (454 SE2d 796) (1995).

       (Punctuation omitted.) Id.

       See id.

       See id. at 471 (3) (finding that record of media reports did not “show a ‘barrage of inflammatory publicity immediately prior to trial amounting to a huge wave of public passion!, and that t]here [was] no evidence of total inundation of the judicial process by the media at. . . trial’ ”).

       (Punctuation omitted.) Id. at 470 (3).

       Cf. id. at 471 (3) (19 of 115, or 16.5 percent, of potential jurors struck for cause relating to bias from pretrial publicity).

       Id.

       See id.

       See Casey v. State, 237 Ga. App. 461 (1) (515 SE2d 429) (1999).

       See id. at 462; Howard v. State, 144 Ga. App. 208, 213 (8) (240 SE2d 908) (1977).

       See id.

       476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       (Punctuation omitted.) Byron v. State, 229 Ga. App. 795, 797 (5) (495 SE2d 123) (1997).

       Because the State proffered a purportedly race-neutral explanation for the strike, we need not address whether Wilbanks established a prima facie case of discrimination. See id. at 798 (5).

       Id.

       See id. (concluding that a juror’s relationship with an individual who is in trouble with the law is a race-neutral reason for striking the juror).

       (Punctuation omitted.) Id.

       See id.

       See Zant v. Moon, 264 Ga. 93, 94 (1) (440 SE2d 657) (1994).

       See Byron, supra.

       Although it is unclear exactly why the district attorney considered Vaughn’s testimony deficient, the transcript reveals that he had a serious drinking problem and that during the week of the home invasion he “would drink, then . . . go to sleep!,]. . . wake up and . . . drink some more.” Vaughn conceded that he was in a drunken stupor on the evening of the home invasion and that the only reason he was testifying is because he “didn’t want to go to prison the rest of [his] life.”

       OCGA § 17-16-8 (a).

       Id.

        Mize v. State, 269 Ga. 646, 653 (7) (501 SE2d 219) (1998).

        Malaguti v. State, 273 Ga. 398, 402 (2) (543 SE2d 1) (2001).

       See id. at 402-403.

       (Punctuation and emphasis omitted.) Gaston v. State, 227 Ga. App. 666, 669 (2) (490 SE2d 198) (1997).

       See id.

       160 Ga. App. 537, 538 (1) (287 SE2d 568) (1981) (physical precedent only).

       173 Ga. App. 653, 654 (327 SE2d 782) (1985) (physical precedent only).

       See Guess v. State, 264 Ga. 335, 336 (2) (443 SE2d 477) (1994).

       (Punctuation omitted.) State v. Simmons, 260 Ga. 92, 93 (390 SE2d 43) (1990).

       See Parser a State, 244 Ga. App. 419, 421 (3) (535 SE2d 795) (2000) (“[h]earsay testimony to establish the similarity of other transactions is allowed when given by a law enforcement official who actually investigated and has personal knowledge of the other transactions”); but see Grano v. State, 265 Ga. 346, 347 (3) (455 SE2d 582) (1995) (holding that “[elvidence of prior violent acts . . . may not be established by hearsay testimony”).

        Jones a State, 272 Ga. 154, 157 (4) (527 SE2d 543) (2000).

       (Citations and punctuation omitted.) Nash v. State, 271 Ga. 281, 285 (519 SE2d 893) (1999).

       Id. See also Parke v. Raley, 506 U. S. 20, 37 (113 SC 517, 121 LE2d 391) (1992) (ruling that it is appropriate for trial court to consider a “defendant’s prior experience with the criminal justice system [,] . . . [his] admission that he understood the charges against him and his self-serving testimony that he simply could not remember whether the trial judge advised him of other rights”).

       See Nash, supra.

       See id.; In the Interest of T B. R., 224 Ga. App. 470, 475-476 (1) (c) (480 SE2d 901) (1997) (holding that trial court, sitting as factfinder, was required to assess witness credibility and was authorized to disregard witnesses’ self-serving testimony).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Citations and punctuation omitted.) Bradford v. State, 262 Ga. 512, 513 (421 SE2d 523) (1992).

        See Barnett v. State, 244 Ga. App. 585, 587-588 (2) (536 SE2d 263) (2000).

       See Bradford, supra.

        Dennard v. State, 263 Ga. 453, 455 (5) (435 SE2d 26) (1993).

       Id.

       See Price v. State, 155 Ga. App. 844, 846 (1) (273 SE2d 225) (1980).

       Kozachyn argues that the evidence showed the four intruders were the nephew, Paul Kozachyn and Wilbanks, who were both positively identified by Mr. Thurmond, and Vaughn, who confessed.

        Henderson v. State, 162 Ga. App. 320, 326 (6) (292 SE2d 77) (1982).

       Cf. Price, supra (in light of the fact that eyewitnesses saw both perpetrators of the crime, but were able to select only one out of a photo hneup, and the minimal evidence against the unidentified perpetrator, it was highly probable that the unidentified perpetrator’s conviction was the result of some spillover of the evidence).

       See Dennard, supra.

       See id.

       See Hall v. State, 259 Ga. 243, 244 (2) (378 SE2d 860) (1989). See also Dennard, supra at 456 (6).

       It is unclear why Kozachyn raised the trial court’s ruling as error in his appellate brief rather than by motion to this Court. Although we expedite consideration of appeals in cases where a criminal defendant is incarcerated, see OCGA § 5-6-43 (c), a party is permitted to file a motion with the Court “whenever counsel wish the Court to take any action,” and the Court generally “acts on motions quickly.” Court of Appeals Rule 41 (a), (d).

       See Demetrios v. State, 246 Ga. App. 506, 511 (4) (541 SE2d 83) (2000).

       We note initially that, in considering Paul Kozachyn’s appeal, we are cognizant of the trial court’s ruling that permitted him to “adopt all of the motions of all of the co-counsel.” Notwithstanding the trial court’s ruling, however, Paul Kozachyn has not established that, at trial, he raised many of the arguments he asserts on appeal. We will address each such circumstance in our review of the asserted errors.

       (Punctuation omitted.) Henderson, supra at 326.

       See id.

       See Zehner v. State, 241 Ga. App. 345, 346 (1) (525 SE2d 416) (1999).

        Welch v. State, 207 Ga. App. 27, 28 (5) (427 SE2d 22) (1992) (physical precedent only).

        Boggus v. State, 136 Ga. App. 917 (1) (222 SE2d 686) (1975).

       See Williams v. State, 244 Ga. App. 26, 27 (2) (535 SE2d 8) (2000); Jackson v. State, 222 Ga. App. 843, 845 (1) (476 SE2d 615) (1996).

       See id.; Court of Appeals Rule 27 (a) (1).

        Hightower v. State, 259 Ga. 770, 771 (2) (386 SE2d 509) (1989).

       See id.

       See id.

        Jones v. State, 265 Ga. 84-85 (2) (453 SE2d 716) (1995).

       Id.

       See Cromwell v. State, 218 Ga. App. 481, 483 (2) (462 SE2d 388) (1995).

       See id.

       See Davis v. State, 272 Ga. 327, 334 (7) (538 SE2d 800) (2000); Hansley v. State, 267 Ga. 48, 49 (3) (472 SE2d 305) (1996).

       Id.

       See Malone v. State, 219 Ga. App. 728, 730 (3) (466 SE2d 645) (1995) (purportedly improper character evidence deemed harmless because it was cumulative of other evidence before the jury).

       (Citations and punctuation omitted.) Millis v. State, 196 Ga. App. 799, 800-801 (4) (397 SE2d 71) (1990). See also Court of Appeals Rule 27 (c) (3) (i).

       See Snow v. State, 228 Ga. App. 649, 651 (3) (492 SE2d 564) (1997).

       See Williams, supra at 27.

       (Punctuation omitted.) Dennard, supra at 456.

       See Brown v. State, 274 Ga. 31, 32 (1) (549 SE2d 107) (2001).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A01A1152.
    KAYLOR v. ATWELL et al.
    (553 SE2d 868)
   Mikell, Judge.

Plaintiff Ted G. Kaylor, Jr., who began teaching in the Rome City School System (“Rome”) in 1972, was suspended without pay for 23 days beginning on November 10, 1992, after making an inappropriate sexual remark to a female high school student. An investigation ensued. On September 28, 1993, defendant Larry B. Atwell, Rome’s superintendent, sent a letter to Kaylor notifying him that Atwell intended to terminate Kaylor’s employment contract pursuant to the Fair Dismissal Act, OCGA § 20-2-940 (a). Kaylor agreed to resign in lieu of termination. The settlement agreement he entered into with Rome provided that Atwell and defendant Pamela Hamilton, Rome’s director of personnel, “will agree to respond to any future requests for references by providing only Mr. Kaylor’s dates of employment with the system and the fact that he resigned. If asked, they will indicate that they have agreed to provide no additional information.” The agreement also stated that Atwell’s letter to Kaylor and all references to the termination procedure would be removed from his file and replaced with his letter of resignation. Kaylor subsequently tendered his resignation.

In July 1994, Kaylor applied for a teaching position with the Polk County School System (“Polk”) but was turned down. Kaylor deposed that Polk refused to hire him because of a negative recommendation given by Atwell and by Rome’s assistant superintendent, Gayland Cooper, who is not party to this litigation. In October 1994, Kaylor applied for unemployment compensation benefits, which were denied. Kaylor deposed that the denial was based on information Hamilton provided to the state Department of Labor concerning the circumstances surrounding his resignation.

On February 13, 1998, Kaylor filed the instant action against Atwell, Hamilton, and “Rome City Schools,” asserting four causes of action: breach of contract, intentional infliction of emotional distress, tortious interference with business relations, and invasion of privacy. The defendants, who were served on February 16, filed their answer on March 19, asserting, inter alia, that the statute of limitation had expired on the tort claims and that “Rome City Schools” was not a proper party defendant. Defendants propounded discovery, to which Kaylor failed to respond. On September 17, 1998, the trial court, in response to defendants’ motion to compel, dismissed the complaint. Kaylor filed discovery responses and a motion to vacate the dismissal order. Further, Kaylor informed the court that he would agree to pay the defense $500 in attorney fees. The trial court granted Kaylor’s motion to vacate on October 26, reserving the issue of attorney fees to a later date.

Kaylor then refused to sign a consent order for attorney fees. On December 1, Kaylor moved for the entry of default judgment, showing that the defendants filed their answer one day late and failed to file a motion to open default or to pay costs, as required by OCGA § 9-11-55. The trial court entered a default judgment as to liability. Defendants moved to open the default and set aside the judgment, attaching the affidavit of a paralegal who averred that she had inadvertently miscalculated the filing deadline by one day. Defense counsel Phillip L. Hartley tendered an affidavit for the purpose of setting forth a meritorious defense. Counsel also averred that he was unaware that the answer had been untimely filed until December 4, when he was served with Kaylor’s motion for a default judgment. The defendants paid court costs. After a hearing the court vacated its prior order, holding, inter alia, that Kaylor had waived his right to the entry of a default judgment.

Kaylor next filed a motion to recuse attorney Hartley, contending that certain of Hartley’s averments in his affidavit showed that he was a material witness. The motion was denied. All defendants then moved for summary judgment, which was granted. Kaylor appeals. We affirm.

1. Kaylor first asserts that the trial court erred in setting aside the default judgment. Although Kaylor has abandoned this enumerated error by failing to support it with citation to the record or reasoned argument, we will address it nevertheless. “The rule permitting opening of default is remedial in nature and should be liberally applied, for default judgment is a drastic sanction that should be invoked only in extreme situations. Whenever possible cases should be decided on their merits for default judgment is not favored in law.” OCGA § 9-11-55 (b) “plainly gives the trial judge the discretion to open a default when he considers,” based upon all the facts, that a proper case has been made. The trial judge’s exercise of his discretion will not be overturned on appeal absent manifest abuse.

No such abuse of discretion occurred in the case at bar. The tardiness of the answer was due to a one-day mathematical miscalculation; Kaylor did not assert the default within the fifteen-day period during which it could have been opened as a matter of right pursuant to OCGA § 9-11-55 (a), but waited instead eight months to do so after he had been compelled to provide discovery; the defense asserted in the answer was meritorious; the defendants filed their motion to open the default shortly after receiving notice of the judgment; and Kaylor has demonstrated no prejudice to his case by the opening of the default. Accordingly, the trial court did not abuse its discretion in determining that this was a proper case for opening default.

2. In his third enumeration of error, Kaylor attacks the grant of summary judgment to the defendants on his breach of contract claim. This Court conducts a de novo review of the law and the evidence when reviewing the grant of a motion for summary judgment. To prevail on summary judgment, a defendant must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the plaintiff, warrant judgment as a matter of law. A defendant may discharge his burden by demonstrating an absence of evidence to support the plaintiffs case. If the defendant discharges this burden, the plaintiff cannot rest on his pleadings, but rather must point to specific evidence giving rise to a triable issue.

In the instant case, the trial court ruled that defendants Atwell and Hamilton were not parties to Rome’s agreement with Kaylor and thus were not bound by its terms. We find it unnecessary to address this ruling, however, as we find that the individual defendants sustained their burden of demonstrating the nonexistence of genuine issues of material fact. A summary judgment right for any reason will be affirmed. We therefore affirm the grant of summary judgment to defendants Atwell and Hamilton on Kaylor’s breach of contract claim.

(a) Defendant Hamilton. Kaylor produced no evidence showing that Hamilton breached her agreement not to provide third parties with information concerning his resignation. The only reference to Hamilton in Kaylor’s deposition is his “understanding” that Hamilton disclosed the reasons for his resignation to the state Department of Labor, resulting in the denial of his unemployment compensation benefits. Even if this allegation were true, it could not result in Hamilton’s liability. We have previously held that a personnel director’s communication to the labor department of the reasons for discharging an employee was absolutely privileged under OCGA § 34-8-122 (a). Here, too, any communication Hamilton may have made to the department in connection with Kaylor’s claim for benefits was absolutely privileged.

(b) Defendant Atwell. Atwell’s affidavit, submitted in support of defendants’ motion for summary judgment, averred that he never received a request for a reference concerning Kaylor from Polk, its superintendent, or any administrator employed by Polk; that he never provided any information to Polk about Kaylor; and that the only request for a reference to which he responded came from the Floyd County Sheriff’s Department. In the letter, Atwell divulged only the dates of Kaylor’s employment and the fact that he resigned. The letter further stated: “Based on the advice of our attorney and in accordance with our agreement with Mr. Kaylor, we are providing no other information.”

In opposition to the defendants’ summary judgment motion, Kaylor tendered the affidavits of Byron Nix, a Polk high school principal, and Richard Carlisle, who was the principal of Rome High School during Kaylor’s tenure. Nix’s affidavit contains a conclusory allegation that Kaylor was not hired to fill an available teaching position at Rockmart Middle School “because of a negative recommendation given by [Atwell].” However, it is apparent from Kaylor’s deposition testimony that Nix’s statement is based on hearsay. Kaylor deposed that Nix had never suggested that he had spoken with any person employed by Rome. Rather, Kaylor claimed that Nix reported to him that Atwell had had a conversation with Polk’s superintendent. Moreover, Kaylor deposed that the alleged conversation took place after Cooper, Rome’s assistant superintendent, had already provided a negative recommendation to the principal of Rockmart Middle School, Jerry Buttrum. The record contains no affidavit from Polk’s superintendent. “It is well-established that all hearsay evidence, unsupported conclusions, and the like, must be stricken or eliminated from consideration in a motion for summary judgment.” Nix’s allegation lacks probative value and cannot rebut Atwell’s affidavit that he gave no information to Polk. Additionally, Carlisle’s affidavit attests to matters that occurred prior to Kaylor’s resignation and is thus irrelevant to his breach of contract claim. It follows that Atwell and Hamilton have carried their burden of demonstrating that there was no genuine issue of fact requiring jury resolution.

Decided August 17, 2001.

Bruce A. Kling, for appellant.

Harben & Hartley, Phillip L. Hartley, Steven M. Tapper, for appellees.

(c) Defendant Rome City Schools. In its answer and motion for summary judgment, Rome asserted that it was not a proper party defendant and that the correct governmental entity was the Rome City School District. Kaylor never sought to amend his pleadings to correct the misnomer, as permitted by OCGA §§ 9-10-132 and 9-11-15. The trial court ruled that “Rome City Schools” is not a legal entity capable of being sued and granted it summary judgment on that basis. Because Kaylor has not enumerated this ruling as error, he has waived appellate review of the issue.

3. Finally, Kaylor enumerates as error the denial of his motion to disqualify defense counsel. However, our affirmance of the grant of summary judgment to all defendants renders this issue moot.

Judgment affirmed.

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

       Court of Appeals Rule 27 (c) (2).

       (Citations omitted.) Ewing v. Johnston, 175 Ga. App. 760, 764 (1) (c) (334 SE2d 703) (1985).

       (Punctuation omitted.) Miller v. Tranakos, 198 Ga. App. 668, 670 (1) (402 SE2d 772) (1991).

        Pleats, Inc. v. OMSA, Inc., 211 Ga. App. 643, 645 (440 SE2d 214) (1993).

        Whitley v. Bank South, 185 Ga. App. 896, 898 (2) (366 SE2d 182) (1988). See also West v. Smith, 196 Ga. App. 69, 70 (395 SE2d 302) (1990) (“Generally, a default should be set aside where the defendant acts with reasonable promptness and alleges a meritorious defense.”) (punctuation omitted).

       Kaylor has not assigned error to the trial court’s ruling that his tort claims are barred by the expiration of the two-year statute of limitation. OCGA § 9-3-33.

        Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

       OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       OCGA § 9-11-56 (e); Richard Haney Ford, Inc. v. Ford Dealer Computer Svcs., 218 Ga. App. 315, 318 (2) (a) (461 SE2d 282) (1995).

        Nairon v. Land, 242 Ga. App. 259 (529 SE2d 390) (2000).

        Davis v. Copelan, 215 Ga. App. 754 (452 SE2d 194) (1994).

       Kaylor deposed that the sheriff’s department hired him in October 1997 and he remains employed there as a deputy sheriff.

       (Punctuation omitted.) State Farm &c. Ins. Co. v. Swetmon, 228 Ga. App. 538, 539 (492 SE2d 678) (1997).

       See Cook v. Colquitt County Bd. of Ed., 261 Ga. 841 (412 SE2d 828) (1992).

        Tidwell v. Coweta County Bd. of Ed., 240 Ga. App. 55, 56 (2) (521 SE2d 889) (1999).


author: Barnes, Judge.

text:
    A01A1196.
    HENG v. THE STATE.
    (554 SE2d 243)
   Barnes, Judge.

Pip Heng appeals his convictions for aggravated assault and two counts of armed robbery, contending that insufficient evidence supports his aggravated assault conviction. Heng also alleges the trial court erred by denying his motion to suppress identification testimony and denying his request for a new jury panel. For the reasons that follow, we affirm.

1. We view the evidence on appeal in the light most favorable to the verdict and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997).

Viewed in the light most favorable to the verdict, the evidence at trial established that late in the evening on July 31,1999, the Clarkston police received reports of two separate armed robberies that took place within a short period of time and within blocks of each other. Both victims reported that two Asian teenage boys robbed them, and that one of the two pointed a 9 mm handgun at them while demanding money. The gunman was described as between five feet two inches and five feet four inches tall, weighing 120 to 130 pounds, with hair closely shaved to above his ear and long hair on top, wearing an orange sleeveless shirt or jacket.

The first victim handed over his money clip, which contained a $100 bill on which someone had written “800.” The victim had noticed the number written on the bill when he got it from the bank and described it to the police when he reported the robbery. The second victim gave up his leather bag, and the gunman fired his weapon at the victim after discovering that it had nothing of value in it.

The next day, a detective searched the area where the gun had been fired and recovered one 9 mm Fiocchi shell casing. He remembered seeing a report of a burglary from the day before, which listed a box of Fiocchi ammunition and a Glock semi-automatic handgun among the stolen items, so he interviewed the burglary victim and obtained the gun’s serial number.

That evening, the day after the armed robberies, another police officer radioed the detective who found the spent shell and reported he saw four teenage Asian males standing outside an apartment complex, one of whom was wearing a sleeveless orange jacket as had been described by the victims. The detective drove up in his unmarked Crown Victoria, wearing his uniform, and asked the boy in the orange jacket if he could talk to him for a minute. The boy, who was Heng, put his hands to his waistband, and the detective got out of the car with his service weapon drawn but not pointed. He ordered Heng to stop and show his hands, but Heng started jogging away while tugging at something in his waistband. Heng finally pulled a Glock 9 mm semi-automatic handgun from his pants and threw it into the bushes about three yards from the detective, who subsequently caught and restrained Heng, then retrieved the gun.

The officers handcuffed Heng and took him and the other three teenagers to the police station. A search uncovered a $100 bill in Heng’s wallet, with the number “800” written on one side. The detective contacted the first victim at that time, who came to the station within a few minutes. In the parking lot outside, the victim identified the Glock as similar to the one used to rob him and identified the $100 bill as his. Acting on the detective’s instructions, he opened the door to the station, looked at the four boys standing in front of a bench, and nodded that he recognized one of them. They closed the door, and the victim identified Heng as the gunman who robbed him.

The detective contacted the second victim two days later, who came to the station to view a photo array of five young Asian males. This victim also identified Heng as the boy who robbed him at gunpoint and fired the gun afterward and the Glock as similar to the one used against him.

The victim whose home was burglarized the night before the robberies identified as his the Glock Heng threw in the bushes, based on the weapon’s serial number, and confirmed that someone had also stolen 50 rounds of Fiocchi ammunition from his home. An expert firearms examiner from the state crime lab testified that the Fiocchi shell casing the detective found at the scene of the second robbery was fired by the Glock Heng threw in the bushes before his arrest.

2. Heng argues that the trial court should have granted his motion to suppress testimony regarding his pre-trial identification as the robber in the lineup and the photo array and his in-court identification by the two victims. The trial court held that neither the lineup nor the photo array was impermissibly suggestive. We disagree.

In both pre-trial situations, Heng was the only person in the group wearing orange, in fact an orange sleeveless jacket as both victims had described to the police. Further, the first victim identified the stolen bill and handgun before looking at the four teenagers, so he knew the police had a suspect in custody. While some of the photos shown to the second victim were closely cropped so their clothes were not visible, Heng’s photo revealed more of his upper body and showed his orange jacket clearly. Finally, while both victims identified Heng at trial as the person who robbed them, Heng was the only Asian in the courtroom at the time.

The test for determining whether a due process violation occurred in cases like this “is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Citation and punctuation omitted.) Randolph v. State, 246 Ga. App. 141, 147 (4) (538 SE2d 139) (2000). We have found that a photo array was not impermissibly suggestive when the defendant was heavyset and some of the men pictured were not. Green v. State, 219 Ga. App. 878 (467 SE2d 203) (1996). Nor was an array impermissibly suggestive when the defendant had the darkest skin and the witness had described him as having a very dark complexion. Smith v. State, 209 Ga. App. 540, 543 (4) (433 SE2d 694) (1993). Further, we have found photo arrays or lineups not impermissibly suggestive when the defendant’s clothing differed from the others’ in some respect, because in those cases, the witnesses had not described their assailants as wearing the clothing the defendant wore when he was identified. Jackson v. State, 209 Ga. App. 53, 54 (1) (432 SE2d 649) (1993); Denegal v. State, 193 Ga. App. 238 (1) (387 SE2d 434) (1989); James v. State, 157 Ga. App. 645, 646 (2) (278 SE2d 187) (1981).

However, in this case, Heng was wearing an orange, sleeveless jacket which both victims had described the gunman as wearing. The police stopped to talk to Heng because he was Asian and was wearing such a jacket, and Heng was the only person wearing orange in both the physical lineup and the photo array. While Heng otherwise matched the description the victims gave — his age, ethnicity, hair, and stature — so did everyone else in the lineups. Simply having him remove his jacket before including him in a lineup or taking his picture for the photo array would have cured this problem, but we find that placing Heng in the lineup and photo array wearing an unusual jacket exactly matching the victims’ description was impermissibly suggestive. “An identification procedure is impermissibly suggestive when it leads the witness to an ‘all but inevitable identification’ of the defendant as the perpetrator.” Miller v. State, 270 Ga. 741, 743 (2) (512 SE2d 272) (1999). See Smith v. State, 244 Ga. App. 165, 166 (1) (534 SE2d 903) (2000) (A lineup showing a shirtless man when the attacker was shirtless “is far less suggestive than, for example, one in which the suspect is shown wearing the same clothing worn by the attacker.”).

We must next consider whether, considering the totality of the circumstances, the impermissibly suggestive identification procedures led to a substantial likelihood of irreparable misidentification. Jones v. State, 273 Ga. 213, 216 (2) (539 SE2d 143) (2000). In determining whether there was a substantial likelihood of misidentification, we consider these factors:

(1) the witness’s opportunity to view the accused at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the accused; (4) the witness’s level of certainty at .the confrontation with the accused; and (5) the length of time between the crime and the confrontation. The ultimate question is, whether under the totality of the circumstances, the identification is reliable.

Id.

Applying these factors, we find there was not a substantial likelihood of irreparable misidentification. The first victim testified that Heng put a 9 mm handgun to his head and did all the talking, speaking very good English. The victim remembered well “the fire” in Heng’s eyes, the way he was looking at him, and further described “the rage in [Heng’s] eyes when he looked at me, when he asked for what I had, and I gave it over to him.” After the victim gave up his money, Heng said, “I don’t want to see you around here any more.” The victim looked right into Heng’s eyes and responded, “Whatever you say.” The following day, the victim was “very certain” when he identified Heng in a lineup. He did not remember that Heng wore orange in the lineup and said he did not identify Heng because the police had shown him the marked $100 bill and the gun beforehand. Rather, he identified Heng because it was “the night right after, I remembered the face, I remembered the terror in his eyes when he looked at me, the way he demand [sic] and everything.” The victim identified Heng at trial as the boy who robbed him.

The second victim’s encounter with Heng lasted around 45 seconds, and during that time, Heng pointed a gun at the victim and shouted at him to get on his knees. Heng became angry when the victim refused to kneel, and, as he circled the victim, the victim turned to keep his face toward Heng’s. Two days later, the victim identified Heng in the photo lineup “immediately” after “just a second” and was “very certain” of his identification. He testified that he identified Heng because he knew and recognized his face. The second victim also identified Heng in the courtroom as the man who robbed him.

While the lineup and photo array were impermissibly suggestive because Heng was the only person wearing an orange jacket, we find that there was no substantial likelihood of irreparable misidentification, and evidence of the pre-trial identifications was properly admitted. Gresham v. State, 246 Ga. App. 705, 706 (1) (541 SE2d 679) (2000).

Further, Heng did not object to the in-court identifications and has, therefore, waived objection to it on appeal. Furlow v. State, 272 Ga. 795, 796 (2) (537 SE2d 61) (2000); Clark v. State, 236 Ga. App. 153, 155 (2) (510 SE2d 907) (1999).

3. We conclude that the evidence as outlined above was sufficient for a rational trier of fact to find Heng guilty beyond a reasonable doubt of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The police found a $100 bill belonging to the first victim in Heng’s wallet, and forensics matched the shell casing at the scene of the second victim’s robbery to the gun Heng possessed. Huff v. State, 239 Ga. App. 83, 86 (1) (519 SE2d 263) (1999).

4. Heng asserts that the trial court erred in denying his motion to strike the jury panel. Voir dire was not transcribed for the record. After voir dire was completed, the parties met in chambers and Heng moved to strike the entire panel based on remarks by one juror that Heng looked like a punk. The venireman also said his grandparents had come over from Germany and made something of themselves, while Heng “comes over here and commits crimes.” The trial court struck the juror for cause but declined to strike the entire panel, explaining that the court could not hear everything the juror said and therefore the entire panel could not have heard everything he said either. The court further explained:

Decided August 17, 2001.

Demetria N. Gibson, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Jeanne M. Canavan, Assistant District Attorneys, for appellee.

I am not going to remove the entire panel, because I don’t think he tainted the panel, especially in light of the additional questions that were asked by all the other jurors when they were asked certain questions, primarily by the State, is there anything else that could cause you not to be fair and impartial. And so everybody was given an opportunity at different times.

The conduct of voir dire is within the trial court’s sound discretion, which we will not disturb unless that discretion is abused. Hughey v. State, 180 Ga. App. 375, 377 (2) (348 SE2d 901) (1986). Here, the trial court dismissed the juror for cause, and nothing in the record disputes the trial court’s conclusion that the remaining jurors indicated that they could be fair and impartial. “Although the comments were clearly directed at appellant, . . . they did not necessarily imply guilt of the offense under consideration,” they did not link Heng to other crimes, and they were not inherently prejudicial. Callaway v. State, 208 Ga. App. 508, 512 (2) (431 SE2d 143) (1993). “There is no reason to conclude that any juror was prejudiced by the statement, which was one of personal opinion based on observation of the defendant and was not related to the charges for which he was being tried.” Butts v. State, 198 Ga. App. 368, 370 (3) (401 SE2d 763) (1991), overruled on other grounds, 266 Ga. 417, 418 (467 SE2d 574) (1996). The trial court did not abuse its discretion in denying Heng’s motion to strike the jury panel.

Judgment affirmed.

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


author: Miller, Judge.

text:
    A01A1215.
    PRESCOTT v. BUILDERS TRANSPORT, INC.
    (554 SE2d 241)
   Miller, Judge.

The question on appeal is whether the trial court abused its discretion in granting a new trial where the court found that the defendant did not receive notice of the first trial. We hold that evidence supported the court’s finding that notice was lacking and therefore affirm.

Builders Transport, Inc. (BTI) operated a truck that injured Donna Prescott. Prescott sued BTI and its excess insurance carrier, Reliance National Indemnity Company. While the case was pending, BTI filed for Chapter 11 bankruptcy, which stayed the action until the bankruptcy court granted relief from the stay. On Thursday, October 28, 1999, BTI’s counsel moved to withdraw because he was not being paid. The next day Prescott mailed a letter to that counsel and to the court requesting that the case be placed on the January 5, 2000 trial calendar. On Monday, November 1, the court signed an order allowing the withdrawal.

BTI’s counsel did not notify BTI of the calendaring request. The court later scheduled a pre-trial conference for January 5, but sent the scheduling notice to BTI’s now-withdrawn counsel rather than to BTI directly, which was unrepresented. BTI’s counsel did not forward the notice to BTI. Prescott forwarded this notice to Reliance’s counsel, even though Prescott had already dismissed Reliance from the case, but not to BTI. Unaware of the conference, BTI did not appear and therefore did not receive the oral notice given at the conference that trial was scheduled for January 20 at 9:00 a.m.

Two days before trial, Prescott faxed a notice of the trial date to BTI’s former counsel, who did not forward the notice to BTI until the day of trial at 2:03 p.m. Until that point, BTI was unaware of the trial date. The trial took place at 9:00 a.m. in BTI’s absence and resulted in a verdict of $3,000,000 against BTI. BTI moved for a new trial and to set aside the judgment on the ground that it had not received notice of the trial. BTI announced its desire to defend the case based on its contributory negligence and minimal damages defenses as set forth in the consolidated pre-trial order.

The court found that its clerk had mistakenly 'sent notice of the pre-trial conference to BTI’s withdrawn counsel rather than to BTI directly. Even though Prescott’s request for a trial date of January 5 may have reached BTI’s counsel just before his withdrawal request was granted, the court noted that historically it did not grant every trial-setting request and that BTI was entitled to receive notice of the actual setting of the January 5 pre-trial conference from the court, which BTI had not received. Accordingly, the court exercised its discretion to grant a new trial, which trial resulted in a much smaller verdict of $23,756.40 for Prescott. Prescott appeals, arguing that the court erred in granting the new trial.

1. The grant of a new trial “will not be disturbed if there is any evidence to authorize it.” OCGA § 5-5-25 provides that “[i]n all motions for a new trial on other grounds, not provided for in this Code, the presiding judge must exercise a sound legal discretion in granting or refusing the same according to the provisions of the common law and practice of the courts.” Interpreting this Code section, we have held that “the non-appearance of a party or his counsel for good cause may be raised in a motion for new trial and the grant of such a motion will not be controlled unless manifestly abused.”

OCGA § 9-11-40 (c) (2) provides that a court may place a case on the trial calendar “[u]pon request of a party and notice to the other parties.” Interpreting this Code section, the Supreme Court of Georgia in Randall v. Randall recently held that receiving notice that another party was requesting a December 13 trial date was insufficient. “Under this statute, the trial court was required to notify [the defendant] that it was granting [plaintiff’s] request and placing the hearing on its calendar for December 13. Failure to provide such notice is reversible error.” Thus, “[i]n the absence of any notice to [defendant] that the trial court intended to hear the matter on December 13, ... a judgment rendered as a result of a hearing on that day cannot stand.”

Here the evidence showed that at most BTI received notice that Prescott was requesting a January 5 trial date. Testimony showed and the court found that the notice of the actual setting of January 5 as a pre-trial conference date was not sent to BTI but to BTI’s former counsel, whom the court had allowed to withdraw and who did not forward the notice to BTI. Notice to withdrawn counsel is ineffective. The only notice of the trial date was given at the conference, from which BTI was absent.

Curiously, two days before trial Prescott sent a trial notice to the former counsel, even though Prescott acknowledged in the notice that she recognized this counsel had withdrawn and even though BTFs address was a matter of record. As this notice was not forwarded to BTI until five hours after the short trial had begun, the trial court was authorized to disregard it.

Decided August 17, 2001

Smith, Wallis & Scott, Kenneth A. Smith, James W. Wallis, Jr., Christopher B. Scott, Doffermyre, Shields, Canfield, Knowles & Devine, Robert E. Shields, Samuel W. Wethern, for appellant.

Page, Scrantom, Sprouse, Tucker & Ford, James C. Clark, Jr., James A. Balli, for appellee.

Prescott argues that notice to Reliance of the pre-trial conference constituted notice to BTI. Although Reliance as BTFs insurance company may have shared common interests with BTI, it bore no obligation as a former co-defendant to notify BTI of the pre-trial conference. Prescott’s citation to Wilkinson v. Vigilant Ins. Co. is unavailing, for Wilkinson pertains only to uninsured motorist cases. Once again, it is curious that Prescott would notify Reliance (a former defendant) of the pre-trial conference but not BTI, even though BTI’s address was a matter of record and even though Prescott’s counsel expressly discussed BTFs unrepresented status with Reliance’s counsel.

We hold that evidence authorized the court’s finding that BTI received no notice of the pre-trial conference or of the trial.

2. Prescott next argues that in addition to showing no notice, BTI was obligated to make two other showings to be entitled to a new trial: (1) BTI had meritorious defenses, and (2) BTI was without fault regarding the lack of notice. The court’s findings as to whether these two showings were made are subject to an abuse of discretion standard.

Here evidence showed that BTI set forth its contributory negligence and minimal damages defenses at the time it moved for a new trial. BTI further showed that it had no reason to believe that the request for a trial setting had been granted or that a pre-trial conference was scheduled. We hold that the court did not abuse its discretion in concluding that the requisite showings were made.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       (Citation and punctuation omitted.) Wheat Enterprises v. Redi-Floors, 231 Ga. App. 853, 858 (3) (501 SE2d 30) (1998).

       (Citations omitted.) Vaughan v. Car Tapes, 135 Ga. App. 178, 180 (4) (217 SE2d 436) (1975).

       (Emphasis supplied.)

       274 Ga. 107 (549 SE2d 384) (2001).

       (Citations and punctuation omitted.) Id. at 109. Cf. Redding v. Raines, 239 Ga. 865 (2) (239 SE2d 32) (1977) (calendar request was sufficient notice where it was merely a formalization of court’s announcement of trial date); compare Potter v. Wal Computers, 220 Ga. App. 437, 440 (3) (469 SE2d 691) (1996) (party had actual notice of trial).

       Id., citing Taylor v. Chester, 207 Ga. App. 217, 219 (427 SE2d 582) (1993).

        Ga. Hwy. Express v. Whaley, 166 Ga. App. 662 (305 SE2d 411) (1983).

       236 Ga. 456 (1) (224 SE2d 167) (1976).

       See Newman v. Greer, 131 Ga. App. 128, 132 (205 SE2d 486) (1974).

       See Vaughan, supra, 135 Ga. App. at 180-181 (4); Newman, supra, 131 Ga. App. at 132.