text:
    A91A1767.
    A91A1768.
    A91A1802.
    CREWS v. CISCO BROTHERS FORD-MERCURY, INC. et al. HOWARD v. CISCO BROTHERS FORD-MERCURY, INC. et al. FETTIG v. CISCO BROTHERS FORD-MERCURY, INC. et al.
    (411 SE2d 518)
   Birdsong, Presiding Judge.

Appellants are plaintiffs in suits for rescission of purchase contracts for fraud, fraudulent inducement to enter contract, breach of contract, and breach of warranty, all on account of appellants’ respective purchases from Cisco Brothers of used vehicles. After purchasing the vehicles, plaintiffs discovered either that the vehicle had been previously wrecked, or that the odometer had been rolled back. In each case the trial court granted partial summary judgment to Cisco Brothers et al. on grounds that except for a statement in the complaint, plaintiff did not tender or even offer to tender back the purchased vehicle to Cisco Brothers pursuant to OCGA § 13-4-60 and therefore could not maintain an action for rescission; and that in each contract the “merger clause” which stated that any verbal promises by a salesman were waived and were not a part of the contract, prohibits each plaintiff from claiming fraudulent inducement to enter the contract, according to Brown v. Ragsdale Motor Co., 65 Ga. App. 727 (16 SE2d 176) and other cases. The trial court ruled that plaintiff in each case is therefore prevented from seeking punitive damages for fraud. Crews, Fettig and Howard appeal. Held:

1. False and fraudulent representations as to an existing fact which induced the signing of a sales contract give the purchaser the right to rescind the contract. City Dodge v. Gardner, 130 Ga. App. 502 (203 SE2d 729); Sumner v. Gen. Motors Acceptance Corp., 53 Ga. App. 630 (186 SE 747). One who seeks rescission of a contract for fraud must restore or offer to restore the consideration received thereunder, as a condition precedent to bringing the action (see Condios, Inc. v. Driver, 145 Ga. App. 537 (244 SE2d 85)); however, restoration by the purchaser is not an absolute rule, and does not require that the defrauding party be placed in exact status quo, but only that he be placed substantially in his original position and that the party rescinding derives no unconscionable advantage from the rescission. Fletcher v. Fletcher, 158 Ga. 899 (124 SE 722); National Old Line Ins. Co. v. Lane, 172 Ga. App. 519, 522 (323 SE2d 707); accord Jones v. Gaskins, 248 Ga. 510, 512 (284 SE2d 398); Henderson Warehouse Co. v. Brand, 105 Ga. 217, 224 (31 SE 551); Rountree v. Davis, 90 Ga. App. 223 (82 SE2d 716); see Cobb & Eldridge, Ga. Law of Damages (2nd ed.), § 17-4. One seeking to rescind a contract for fraud must restore or tender back the benefits received under the contract, or show a sufficient reason for not doing so; he need not tender back what he is entitled to keep, and need not offer to restore where the defrauding party has made restoration impossible (Mutual Savings &c. Ins. Co. v. Hines, 96 Ga. App. 442 (100 SE2d 466)), or when to do so would be unreasonable. Smith v. McWhorter, 173 Ga. 255, 273 (160 SE 250); Berry v. Williams, 141 Ga. 642 (81 SE 881). Compare International Software Solutions v. Atlanta Pressure &c. Co., 194 Ga. App. 441 (390 SE2d 659).

Appellant Crews and appellant Fettig contended and showed evidence that they did not offer to return the vehicles to Cisco Brothers because the purchase of their respective vehicles was financed through Ford Motor Credit and they were required to continue making monthly payments to the third party, Ford Motor Credit. Appellant Howard gave evidence that when he discovered his vehicle had been previously wrecked and could not be repaired acceptably, he contacted Ford Motor Credit, and was told that Cisco Brothers had stated that Howard’s vehicle had been repaired and that the matter was settled; he was refused relief from his obligation to pay Ford Motor Credit.

It is clear that in the facts of all these cases, the defendant Cisco Brothers had been paid by Ford Motor Credit and appellants were obligated to pay this third-party creditor. In each case, a return of the vehicle or even an offer to return the vehicle to Cisco Brothers would not result in automatic absolution of the debt each appellant owed to this third-party creditor. Although defendants in affidavit say Cisco Brothers would have accepted the vehicles if appellants had offered to return them, it is not suggested that this would automatically relieve appellants of their separate obligation to pay the third-party creditor.

It may be that after much trouble and expense the plaintiffs might have convinced the third party to recover its money from Cisco Brothers and relieve them of their debt, but this is a patently unreasonable solution, for it gives Cisco Brothers an unconscionable advantage in having received money from a third party who, being itself not accused of any fraud or breach, is not obliged to relieve the purchasers of their obligations by the fact that the seller, for some reason, had accepted a return of the vehicles. On the face of things, if each appellant had returned the vehicles, the defrauding party would then have both the money paid by the third party and the vehicles; the purchasers would be put to trouble and expense, and as shown in the case of appellant Howard, great uncertainty of success, to try to get the third party to absolve their debts, meanwhile having neither the vehicle nor the money. The rule requiring return or tender of the goods can be applied only where it is equitable; it was not meant to give the defrauding party an advantage at the expense of the defrauded purchaser. The rule is in fact that neither the defrauding party nor the purchaser may retain an unfair advantage; there is no room for either party to “have its cake and eat it, too.” Corbitt v. Harris, 182 Ga. App. 81, 82 (354 SE2d 637).

Similar to this case in its facts is Rountree v. Davis, supra, where it was indicated that, restoration not being “an absolute rule” in the first place, there is no reason the defrauding party should get all the benefits of such a rule. Id. at 232. Appellants owed a debt to a third party on account of defendant’s alleged fraud; it was not within the defrauding party’s power to dissolve these obligations and place appellants in status quo merely by accepting a return of the vehicles. Moreover, as long as the purchasers were required to pay the third party they were entitled to keep the goods. Mutual Savings &c. Ins. Co., supra. To deprive the purchasers of their remedy for fraud in these circumstances would give the defrauding party an unconscionable advantage. Corbitt, supra at 82-83; see Bob Maddox Dodge v. McKie, 155 Ga. App. 263, 264 (270 SE2d 690). The trial court erred in granting partial summary judgment to appellee in these cases on grounds that appellants could not rescind the contracts and sue for fraud, including punitive damages (see Rustin Oldsmobile v. Kendricks, 123 Ga. App. 679, 680 (182 SE2d 178)) because they did not return or tender the vehicles to appellee.

2. As to the trial court’s holding that the “merger clause” in these purchase contracts prevented appellants from proving the necessary element of fraud, detrimental reliance, the Supreme Court has laid to rest the contention that a merger clause in a contract being attacked for fraud precludes proof that the contract was fraudulently induced. In City Dodge v. Gardner, 232 Ga. 766, 770 (208 SE2d 794), it was held that “the question of reliance on the alleged fraudulent misrepresentation in tort cases cannot be determined by the provisions of the contract sought to be rescinded but must be determined as a question of fact by the jury. It is inconsistent to apply a disclaimer provision of a contract in a tort action brought to determine whether the entire contract is invalid because of alleged prior fraud which induced the execution of the contract. If the contract is invalid because of the antecedent fraud, then the disclaimer provision therein is ineffectual since, in legal contemplation, there is no contract between the parties.” See Brown v. Techdata Corp., 238 Ga. 622, 627 (234 SE2d 787). The cases cited by the trial court for a contrary conclusion either were decided prior to the Supreme Court’s decision in City Dodge, supra, or, unlike this case as we held in Division 1, involved facts by which the purchaser was held to have affirmed the contract, so as to be bound by its terms and limited to recover for its breach, and estopped from asserting reliance on fraudulent inducement. See, e.g., Joseph Charles Parrish, Inc. v. Hill, 173 Ga. App. 97 (325 SE2d 595); Nixon v. Sandy Springs Fitness Center, 167 Ga. App. 272 (306 SE2d 362).

Decided September 30, 1991

Reconsideration denied October 23, 1991

Stein & Cauthen, James E. Stein, Robert H. Cauthen, for appellants.

Stephen L. Berry, for appellees.

Accordingly, the grant of partial summary judgment to defendant/appellee in each of these cases is reversed.

Judgments reversed.

Pope and Cooper, JJ., concur.


source: Caselaw Access Project

author: Sognier, Chief Judge. Andrews, Judge,

license: Public Domain

text:
    A91A0774.
    WALDRIP v. VOYLES.
    (411 SE2d 765)
   Sognier, Chief Judge.

Clemmer Hugh Voyles filed suit against Lamar Waldrip d/b/a Best Homes alleging various claims arising from real estate and retail installment contracts executed by the parties. Voyles received partial summary judgment as to liability on one of his claims, and the case was then tried before a jury, which awarded damages of $75,000. The trial court entered judgment on the verdict, and Waldrip filed this appeal.

On April 5, 1974, appellee, as buyer, and appellant, as seller, entered into a contract for the sale of real property (the “land contract”) and a concomitant retail installment contract for purchase of a mobile home located on the property. Both contracts provided for monthly payments by appellee to appellant, and the parties also agreed that appellee would make monthly payments of $6 to appellant for water and sewer service. Since the beginning of their contractual relationship, the parties have been mired in myriad disputes concerning appellant’s claims that appellee was in default on his payments under the contracts, appellant’s attempts to increase the amount to be paid by appellee for water and sewer service, and appellee’s complaints concerning the quality of the water service provided by appellant to the property. Appellee testified at trial that appellant raised the monthly rate for water and sewer service to $10 and later to $18, although the contract provision specifying a payment of only $6 was not amended by the parties. Appellee acknowledged that he paid the higher rates for a while, but testified he reduced his payments to $6 when he began to experience problems with the water and sewer service.

When appellee sent checks to appellant for payment of his various obligations, appellee designated on the face of the check the obligation to which the payment was to be applied, which he was entitled to do pursuant to OCGA § 13-4-42. Once the disagreement over the amount to be charged for water and sewer service arose, however, beginning sometime in 1986 appellant disregarded the designations made by appellee and applied some of the payments to the alleged arrearage in appellee’s water and sewer account. As a result, appellant claimed the land contract was in default and informed appellee he intended to exercise his right under the contract to repossess the land. In response, appellee filed this action seeking specific performance of the real estate contract and damages for breach of the contract. He subsequently amended his complaint to allege that appellant’s failure to honor the appropriation of payments appellee made pursuant to OCGA § 13-4-42 constituted an intentional tort, entitling appellee to compensatory and punitive damages. The trial court granted appellee’s demand for specific performance, and the Supreme Court affirmed without opinion. Waldrip v. Voyles, 259 Ga. XXXIII (1989). The trial court then ruled that appellant’s violation of OCGA § 13-4-42 did constitute a tort and that appellee was entitled to summary judgment on the issue of liability for this claim. The issues of breach of contract, attorney fees, and damages for the tort claim were tried to a jury, which awarded $2,000 for breach of contract, $17,000 in attorney fees under OCGA § 13-6-11, and on the tort claim awarded $16,000 in compensatory damages for mental distress and $40,000 in punitive damages.

1. In two enumerations of error, appellant challenges the trial court’s holding that a violation of OCGA § 13-4-42 constitutes a tort. He maintains that the statute merely creates an implied contractual condition, the breach of which has been held to entitle the debtor to extinguishment of the debt, see, e.g., Mayor &c. of Millen v. Clark, 193 Ga. 132 (3) (17 SE2d 742) (1941), and accordingly, he asserts the trial court erred by granting appellee’s motion for partial summary judgment and denying appellant’s motion for directed verdict. Conversely, appellee maintains that OCGA § 13-4-42 imposes a duty on appellant independent of the contract and thus provides a basis for a tort claim.

“It is axiomatic that a single act or course of conduct may constitute not only a breach of contract but an independent tort as well, if in addition to violating a contract obligation it also violates a duty owed to plaintiff independent of [the] contract to avoid harming him. [Cits.]” Orkin Exterminating Co. v. Stevens, 130 Ga. App. 363, 365 (203 SE2d 587) (1973). Such duties “ ‘may arise from statute, or flow from relations created by contract, express or implied. The violation of any such specific duty, accompanied with damage, gives a right of action.’ ” Mauldin v. Shaffer, 113 Ga. App. 874, 878 (150 SE2d 150) (1966). “[I]n order to maintain an action ex delicto because of a breach of duty growing out of a contractual relation the breach must be shown to have been a breach of a duty imposed by law and not merely the breach of a duty imposed by the contract itself. [Cits.]” Id. at 879-880.

OCGA § 13-4-42 provides in pertinent part: “When a payment is made by a debtor to a creditor holding several demands against him, the debtor shall have the right to direct the claim to which it shall be appropriated. If the debtor fails to do so, the creditor shall have the right to appropriate the payment at his election.” Our courts have held that if the debtor directs payments pursuant to this statute, the creditor is obligated to apply the payments in accordance with this direction and has no authority to appropriate them in a different manner. Mayor &c. of Millen, supra at 133; Roswell Bank v. Bearse, 118 Ga. App. 610 (164 SE2d 886) (1968). Since this requirement that the creditor honor the debtor’s allocation of payments on multiple obligations arises from OCGA § 13-4-42, not from a contract provision, it follows that this duty of the creditor is a “duty imposed by law and not merely ... a duty imposed by the contract itself.” Mauldin, supra. Accordingly, the breach of that duty gives rise to a cause of action in tort. See id. Accord Sheppard v. Yara Engineering Corp., 248 Ga. 147 (281 SE2d 586) (1981) (lessor under mining lease has tort claim for trespass and conversion against lessee who removed materials not authorized to be removed under the lease); Peters v. Imperial Cabinet Co., 189 Ga. App. 337, 338 (1) (375 SE2d 635) (1988) (where general contractor submitted affidavit of payment averring no outstanding indebtedness although subcontractor had not been paid, subcontractor has cause of action in tort for breach of legal duty to swear truthfully). As there was no dispute that appellant breached his duty to honor appellee’s direction of payments, we hold the trial court correctly awarded partial summary judgment to appellee on the issue of appellant’s liability for breach of his obligation under OCGA § 13-4-42.

2. Appellant next contends in five enumerations of error that the trial court’s submission to the jury of appellee’s claims for damages for mental anguish and for punitive damages was error because the evidence adduced at trial did not authorize such award and because the charge to the jury improperly allowed appellee a double recovery.

OCGA § 51-12-6 authorizes the recovery of damages in tort actions “in which the entire injury is to the peace, happiness, or feelings of the plaintiff.” Punitive damages are awardable under OCGA § 51-12-5, which provides that for “a tort action in which there are aggravating circumstances, in either the act or the intention, the jury may give additional damages to deter the wrongdoer from repeating the trespass or as compensation for the wounded feelings of the plaintiff.” In Westview Cemetery v. Blanchard, 234 Ga. 540, 543-546 (216 SE2d 776) (1975), the Supreme Court held that the recovery of damages under OCGA § 51-12-6 (former Ga. Code Ann. § 105-2003) bars additional recovery under OCGA § 51-12-5 (former Ga. Code Ann. § 105-2002). The court reasoned that because both statutes allow recovery for wounded feelings and have punitive elements, an award of damages under both provisions would constitute a double recovery. West-view, supra at 546.

(a) In the case at bar, appellee offered no evidence of physical injury or pecuniary loss alleged to result from appellant’s tortious misappropriation of appellee’s payments. Consequently, this action fell within the scope of OCGA § 51-12-6 because the entire injury was alleged to be to the peace, happiness, or feelings of appellee, and thus he could recover damages only under that statute. Brunswick Gas &c. v. Parrish, 179 Ga. App. 495, 497-499 (347 SE2d 240) (1986); accord Westview, supra at 544-546; compare Alford v. Oliver, 169 Ga. App. 865, 868-869 (7) (315 SE2d 299) (1984) (where plaintiff pleaded and proved actual damages, recovery for punitive damages available only under OCGA § 51-12-5). When the entire injury alleged is to the plaintiff’s peace, happiness, and feelings, “recovery is allowed only if the conduct complained of was ‘malicious, wilful, or wanton.’ [Cit.]” Westview, supra at 544; see Hamilton v. Powell, Goldstein, Frazer &c., 252 Ga. 149 (311 SE2d 818) (1984).

Contrary to appellant’s contentions, we do find evidence in the record to support an award of $16,000 in damages under OCGA § 51-12-6. Damages for mental pain and anguish are awardable for a violation of a legal right or duty which is an actionable wrong, for a legal wrong imputes damage. Stephens v. Waits, 53 Ga. App. 44, 46-47 (184 SE 781) (1936). Since we held in Division 1, supra, that appellee was entitled to recover for appellant’s intentional tortious conduct, appellee was authorized, upon proper proof, to recover special damages for mental pain and anguish. At trial, appellee’s wife testified tbat as a result of appellant’s tortious conduct over a two-year period, appellee’s “nerves are shot, I mean emotionally. It’s drained both of us. [Appellee does not] sleep. . . . He’s worried about it.” The measure of mental anguish damages is the enlightened conscience of impartial jurors, OCGA § 51-12-6, and we cannot conclude that the verdict was so unreasonable or the result of gross mistake, undue bias, or prejudice, or passion that it should be set aside as excessive. See Calloway v. Rossman, 150 Ga. App. 381, 386 (8) (257 SE2d 913) (1979). Thus, we find no merit in appellant’s contention that the award of $16,000 was excessive.

(b) We do agree, however, with appellant’s argument that since appellee proved mental anguish damages under OCGA § 51-12-6, he was not entitled to the additional award of $40,000 in punitive damages because of the rule set forth in Westuiew, supra at 545-546. Accordingly, we affirm the award of $16,000 in damages under OCGA § 51-12-6 on the condition that the $40,000 punitive damages award is written off; otherwise, appellant is entitled to a new trial on damages for the tort claim. See Alford, supra at 869 (8).

3. Appellant’s contention that $5,000 of the attorney fees award should be stricken because of insufficient evidence is without merit. The jury indicated on the verdict form that this portion of the award was for fees incurred during the trial. Evidence was adduced that each of appellee’s two counsel charged $75 per hour for trial work and that such a charge was reasonable. Since the jury was present for the three-day trial, the jurors were amply qualified to calculate attorney fees for that period.

4. We find no reversible error in the trial court’s decision to admit into evidence orders entered by the court in the instant case and in another case between appellant and another homeowner involving the same misappropriation issue, as these orders were relevant to show the intentional nature of appellant’s tortious conduct, which related to the issue of tort damages, and his stubborn and litigious behavior, which was relevant to appellee’s claim for attorney fees under OCGA § 13-6-11.

Judgment affirmed on condition.

McMurray, P. J., Carley, P. J., Pope, and Cooper, JJ., and Judge Arnold Shulman concur. Birdsong, P. J., Beasley and Andrews, JJ., dissent.

Andrews, Judge,

dissenting.

I respectfully dissent from the majority opinion because I do not believe that OCGA § 13-4-42 creates a duty which exists independently of contract and therefore, the trial court erred in holding that a violation of that statute constitutes a tort. OCGA § 13-4-42 creates an implied contractual condition regarding application of payments which applies only if the parties have not otherwise contracted. “Where the parties have made an agreement respecting the application of payments, it must be observed.” Citizens Bank, Vienna v. Bowen, 169 Ga. App. 896, 899 (3) (315 SE2d 437) (1984). In other words, the purpose of OCGA § 13-4-42 is to provide implied terms to contracts which are silent regarding payment application.

A violation of the implied contractual condition provided for by OCGA § 13-4-42 by definition cannot be a tort. OCGA § 51-1-1 provides: “A tort is the unlawful violation of a private legal right other than a mere breach of contract, express or implied.” It is fundamental that for a breach of contract to constitute a tort there must be a duty breached which is independent of the contract. Sheppard v. Yara Engineering Corp., 248 Ga. 147, 148 (281 SE2d 586) (1981). See also AAA Parking v. Bigger, 113 Ga. App. 578 (149 SE2d 255) (1966). The fact that this statute, instead of the contract itself, supplied the particular contract terms which were breached here does not alter the fact that the duties between the parties arose solely from contract. Therefore, the majority’s premise that because OCGA § 13-4-42 supplies the additional terms, the duties imposed thereunder are no longer contractual in nature, is misplaced.

Decided October 23, 1991.

Troy R. Millikan, for appellant.

Cliff L. Jolliff, Mark Fockele, for appellee.

Because of my conclusion with respect to Division 1 of the opinion, I dissent also from Divisions 2 (a), 3 and 4.

I am authorized to state that Presiding Judge Birdsong and Judge Beasley join in this dissent.


author: Sognier, Chief Judge.

text:
    A91A1001.
    FLOYD v. CHAFFIN et al.
    (411 SE2d 570)
   Sognier, Chief Judge.

David Floyd, a deputy sheriff of Henry County, brought suit against Donald Chaffin, individually and as Sheriff of Henry County, the Henry County Board of Commissioners, individually and in their official capacities, and Henry County, alleging his demotion and suspension without pay for ten days violated his state and federal due process rights. Floyd also asserted a claim for intentional infliction of emotional distress. The trial court granted the defendants’ motion for summary judgment, and Floyd appeals.

1. We find no error in the trial court’s grant of summary judgment in favor of appellees Henry County and its Board of Commissioners (hereinafter “Henry County”) and the denial of appellant’s motion to compel Henry County to respond to discovery. The record establishes that at no time since the effective date of OCGA § 36-1-21, Ga. L. 1986, p. 764, § 1, has Henry County enacted an ordinance or resolution pursuant to OCGA § 36-1-21 (b) providing that employees of the Henry County Sheriff, an elected official, could be subject to the Henry County civil service system. See generally Burbridge v. Hensley, 194 Ga. App. 523 (391 SE2d 5) (1990). We do not agree with appellant that under the law that existed prior to the enactment of OCGA § 36-1-21, see Pettus v. Smith, 174 Ga. App. 587, 588 (2) (330 SE2d 735) (1985); Keener v. Kimble, 170 Ga. App. 674, 675 (1) (317 SE2d 900) (1984); Drost v. Robinson, 194 Ga. 703, 710-711 (3) (22 SE2d 475) (1942), any attempt by Henry County and Sheriff Chaffin to make Sheriff’s Department employees subject to the Henry County civil service system was valid. Accordingly, appellant was an employee of the Henry County Sheriff, not a Henry County employee, and thus cannot rely upon the disciplinary procedures set forth in Henry County’s employee policy manual. Since Henry County was not a proper party, it follows that the trial court did not err by denying appellant’s motion to compel Henry County to respond to his discovery motions.

2. Appellant contends that with regard to his claim of damages for violation of his procedural due process rights, the trial court erred by granting summary judgment to appellee Chaffin. The record reveals that on August 1, 1989, appellant was notified in writing by Captain Kenny Lee Smith, Chief of Detectives, that a hearing had been scheduled to hear evidence concerning a report alleging that appellant had violated the Henry County Sheriff’s Department Rules of Conduct and Discipline Section 1.53: Wrongful Arrest, Search and Seizure based on appellant’s entry of a suspect’s home on June 14, 1989 without a search warrant. The writing informed appellant that he had the right to present testimony, evidence, and witnesses in his behalf and to cross-examine any complaining witnesses at the hearing. The parties agree that Section 1.53 provided that “[d]eputies shall not make any arrest, search, or seizure which they know or should know is not in accordance with law and departmental procedures.”

At the date specified on the notice, a hearing was held before the disciplinary review board (“board”) composed of five officers, including Captain Smith, who did not vote, two uncertified officers, and two certified officers, including one chosen by appellant. A transcript of the tape-recorded hearing reveals that the board heard testimony by the owners of the residence entered by the officers as well as statements made by appellant and the other officer, and that appellant was allowed to question the witnesses. In appellees’ statement of undisputed material facts it was alleged that the board’s decision was unanimous. That decision, set forth in the violation report, reflects that the board determined that appellant had violated Section 1.53 and recommended demotion. Although appellant had not been notified of any other charges, the board also found appellant had violated two other minor rules of conduct and recommended a five day suspension without pay for each of the two minor violations. The board’s recommendation was then forwarded to Chief Deputy James Chaffin. In his affidavit, Chief Deputy Chaffin averred that he was not bound to follow or apply the board’s recommendation, but makes an independent assessment of each case. Based upon his review of the investigation of appellant, he averred that he decided to demote appellant, but that because it appeared appellant had not received notice of the two minor charges, he disregarded the board’s finding on those violations and based the disciplinary action solely on the Section 1.53 violation. Chief Deputy Chaffin’s decision is now uncontrovertedly part of appellant’s permanent record.

We need not address the issue whether certain language in the Sheriff’s Standard Operating Procedures regarding dismissals for cause gave appellant a property interest in his job sufficient to invoke minimum due process protection because appellee Chaffin concedes for purposes of this appeal alone the finding of the trial court that it did. We find no error in the trial court’s grant of summary judgment in favor of appellee Chaffin on appellant’s claim of violation of his procedural due process rights. The evidence was uncontroverted that appellant received notice of the charge against him and was afforded a full predeprivation evidentiary hearing, which accorded him all the procedural safeguards to which the state and federal constitutions entitled him. See Nix v. Hardison, 712 FSupp. 185, 189 (3) (N.D. Ga. 1989).

Next, although the record reveals that appellant was not notified of the two charges for violating rules for which the board recommended he be suspended without pay, the record does not support appellant’s contention that Chief Deputy Chaffin authorized disciplinary action for those infractions. Compare Sheppard v. DeKalb County &c. Council, 144 Ga. App. 115, 116 (2) (240 SE2d 316) (1977). The violation report cited by appellant as evidence that the chief deputy did authorize the suspension based on the two minor charges does not require a contrary conclusion, as that document reveals on its face that the disciplinary actions set forth by the board were only recommendations, and the chief deputy’s signature thereon merely reflected that the chief deputy counselled appellant concerning the offenses and showed appellant a copy of the document.

We do not agree with appellant that Captain Smith’s position as chief investigator of the matter and chairman of the disciplinary review board constituted a denial of appellant’s due process rights under Brownlee v. Williams, 233 Ga. 548, 555-556 (3) (212 SE2d 359) (1975). The record is uncontroverted that Smith did not participate when the board voted to recommend that appellant be demoted and suspended without pay for ten days. While the transcript of the hearing does not show bias or prejudice sufficient to result in a denial of due process to appellant, see RTC Transp. v. Ga. Public Svc. Comm., 165 Ga. App. 539, 542 (4) (301 SE2d 896) (1983), there was no transcript of the board’s deliberations to indicate what position, if any, Captain Smith assumed therein. “The [U. S.] Supreme Court has indeed expressed the need for an impartial decision-maker in order to satisfy the due process requirements of a hearing. [Cits.] These decisions involved judges whose alleged lack of impartiality was the result of a financial conflict of interest. If instead the alleged lack of impartiality arises because a decision-maker is involved in both the investigation and the adjudication of a dispute, the Court has held that the decision-maker may not be presumed to be unconstitutionally biased. [Cit.] Rather, the plaintiff must overcome the presumption that the decision-maker is ‘(a person) of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.’ [Cit.] [Appellant] has not offered any evidence that [Captain Smith] failed to meet this standard; therefore this argument must fail. [Cits.]” Panozzo v. Rhoads, 905 F2d 135, 140 (III) (7th Cir. 1990).

Decided October 23, 1991.

Johnnie L. Caldwell, Jr., for appellant.

Barnhart, O’Quinn & Williams, Michael O’Quinn, for appellees.

Finally, appellant argues that his procedural due process rights were violated because the hearing was not conducted in accordance with the Sheriff’s Department rules of procedure in that the board was not composed of five certified police officers. We find no merit in this argument because no copy of the Sheriff’s Department rules is contained in the record to establish that the composition of the board violated any written procedure, and there is no evidence to rebut statements in appellee Chaffin’s deposition indicating that the board is appointed at the Sheriff’s discretion rather than pursuant to any written policy.

3. We find no error in the trial court’s grant of summary judgment to appellee Chaffin on appellant’s claims of violation of his substantive due process rights and intentional infliction of emotional distress. The personnel action taken by appellee was not such to shock the conscience or offend hardened sensibilities so as to violate substantive due process rights, see Henderson v. Sherrington, 189 Ga. App. 498, 499-500 (3) (376 SE2d 397) (1988), nor did it constitute the kind of egregious conduct necessary to state a claim for intentional infliction of emotional distress. Id. at 498-499 (1); Southern General Ins. Co. v. Holt, 200 Ga. App. 759 (5) (409 SE2d 852) (1991).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Judge Arnold Shulman.

text:
    A91A1083.
    LOVELACE v. THE STATE.
    (411 SE2d 770)
   Judge Arnold Shulman.

The appellant was tried by a jury and convicted of selling cocaine in violation of the Georgia Controlled Substances Act. She appeals from the judgment of conviction.

1. The appellant, a black woman, complains that the state was improperly allowed to use its peremptory challenges in a racially discriminatory manner, in violation of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). The record shows that the panel from which the jury was selected was 45 percent black, and the jury itself was 75 percent black. Based on these statistics, the trial court correctly concluded that the appellant had failed to establish a prima facie showing of discrimination and accordingly did not err in failing to require the state to explain the reasons for each of the peremptory challenges which it used to strike blacks from the jury. Accord Williams v. State, 258 Ga. 80 (3) (365 SE2d 408) (1988); Aldridge v. State, 258 Ga. 75 (365 SE2d 111) (1988). See also Jones v. State, 196 Ga. App. 877 (1) (397 SE2d 303) (1990).

2. The appellant contends that the contraband which she was convicted of selling should have been suppressed as evidence on the ground that the undercover operation which led to the transaction violated the Posse Comitatus Act, 18 USCA § 1385, which reads as follows: “Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two years, or both.”

The appellant contends that the Harris County Sheriff’s Department violated this prohibition by requesting and utilizing the assistance of the U. S. Army Criminal Investigation Division (the “Army CID”) in its undercover operation against drug dealers in Harris County. It was shown that Army CID agents Jolley and Turner were introduced to an informant who had been assisting the sheriff’s department and that Turner and the informant, traveling in a vehicle supplied by Jolley, thereafter proceeded together to a location where the informant, in Turner’s presence, purchased the cocaine in question from the appellant. The informant then gave the cocaine to Turner, who gave it to Jolley, who turned it over to the sheriff’s department the next day.

In a case involving very similar facts, the United States Court of Appeals for the Eleventh Circuit held that such assistance by military investigators did not constitute a violation of the Posse Comitatus Act since it “did not pervade the activities of civilian officials, and did not subject the citizenry to the regulatory exercise of military power.” United States v. Bacon, 851 F2d 1312, 1313 (11th Cir. 1988). The Court further held in that case that even if the participation by military personnel in the drug investigation were considered a violation of the Posse Comitatus Act, “it was not a willful violation of the spirit of the Act; nor did it demonstrate any aggravated or repeated instance of violations that would require or even justify the application of the exclusionary rule.” Id. Accord United States v. Wolffs, 594 F2d 77 (5th Cir. 1979). Applying these principles to the present case, we hold that the trial court correctly denied the appellant’s motion to. suppress.

Decided October 23, 1991.

Franklin H. Thornton, for appellant.

Douglas C. Pullen, District Attorney, J. Gray Conger, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


text:
    A91A1098.
    ANSA MUFFLERS CORPORATION v. WORTHINGTON et al.
    (411 SE2d 573)
   Sognier, Chief Judge.

Ansa Mufflers Corporation appeals from the trial court’s denial of its motion for judgment notwithstanding the verdict on the Yost counterclaim filed by Joe Worthington and Worthington and Casper, Certified Public Accountants.

Appellant brought suit against appellees seeking damages for penalties and excess taxes it paid allegedly as the result of appellees’ negligent handling of an ad valorem freeport exemption form on behalf of appellant. Appellees answered denying they had received the form or been asked to complete it. Appellees also counterclaimed in counts 1 and 2 seeking damages for appellant’s alleged abusive litigation under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986) and in count 3 seeking sums past due for services they had rendered appellant. Appellees moved for summary judgment asserting the runping of the statute of limitation and appellant’s failure to attach an expert’s affidavit to its complaint pursuant to OCGA § 9-11-9.1. Their motion and a cross motion by appellant were denied by the trial court.

Upon trial of the case, the trial court granted appellees’ motion for a directed verdict on count 3 of their counterclaim but reserved ruling on appellees’ motions for a directed verdict on appellant’s claims, stating that it would have granted the motion except for testimony by appellant’s bookkeeper, who had testified that she sent the freeport exemption form to appellees and that appellee Joe Worthington had told her he would complete it. In entering judgment on the jury’s verdict, the trial court accepted the jury’s finding in favor of appellees on appellant’s claims, but did not direct a verdict in that regard, as it had done on count 3 of appellees’ counterclaim. After noting that the jury had reconvened after rendering its verdict on the main claim to consider the Yost counterclaim and had awarded appellees $15,000 against appellant on that counterclaim, the trial court accepted that verdict and made it the judgment of the court, subsequently denying appellant’s motion for judgment n.o.v.

Appellant contends that the trial court erred by denying its motion for judgment n.o.v. because the trial court’s earlier rulings denying appellees’ motions for summary judgment and directed verdict constituted “binding determinations” that appellant’s complaint was substantially justified, citing Felker v. Fenlason, 197 Ga. App. 476, 477 (2) (398 SE2d 754) (1990), Bouchard v. Fowler, 193 Ga. App. 697 (388 SE2d 874) (1989), and Biosphere Indus. v. Oxford Chemicals, 190 Ga. App. 613, 614-615 (379 SE2d 555) (1989). The Supreme Court recently overruled the principle enunciated in those cases that earlier rulings by a trial court can constitute a “binding determination” that a plaintiff’s complaint did not lack substantial justification so as to bar a defendant from recovering damages for abusive litigation under OCGA § 9-15-14. Porter v. Felker, 261 Ga. 421, 422 (2), (3) (405 SE2d 31) (1991). See Seckinger v. Holtzendorf, 200 Ga. App. 604 (409 SE2d 76) (1991) (Porter applicable to both Yost and OCGA § 9-15-14 counterclaims). However, the Supreme Court in Porter stated that “a trial court’s award [of damages for abusive litigation] to a party whose motion for summary judgment [on the other party’s claim] was denied must be vacated except in unusual cases where the trial judge could not, at the summary judgment stage, foresee facts authorizing the grant of [damages for abusive litigation.]” Id. at 422 (3).

Looking to the facts of this particular case to see whether it comes within the “unusual” category of cases referenced in Porter, supra at 422 (3), the record establishes that appellees’ motion for summary judgment did not challenge the merits of appellant’s negligence claim but rather addressed two matters raised by appellees, one a procedural ground and the other an affirmative defense. Accordingly, the trial court’s denial of the motion was not a determination whether the suit appellant brought lacked substantial justification, as the trial court was never required to address or otherwise foresee facts authorizing the grant of attorney fees under Yost regarding the merits of the complaint. Given the subject matter of the summary judgment motion in issue here, we find that the record demonstrates the “unusual” situation contemplated by the Supreme Court in Porter, supra, so that the trial court’s denial of appellees’ motion for summary judgment does not require reversal of the trial court’s judgment awarding appellees damages under Yost. Compare Felker v. Fenlason, 201 Ga. App. 207 (5) (410 SE2d 326) (1991).

Decided October 23, 1991.

Hall, Bloch, Garland & Meyer, Benjamin M. Garland, Duncan D. Walker III, for appellant.

Nor does the ruling on appellees’ directed verdict motion require reversal of the Yost award. In Porter, the Supreme Court noted that “[a] motion for summary judgment is analogous to a motion for a directed verdict. [Cit.] The function of the trial court in ruling on either requires the trial court to determine whether the movant is entitled to a judgment as a matter of law on the facts established and whether there is a genuine issue as to any material fact.” Id. at 421 (1). “[I]n a close case, a trial court may deny summary judgment and anticipate a second opportunity to consider its ruling on a subsequent motion for directed verdict.” Id. at 422 (2). The facts in the case sub judice do not require us here to decide whether the reasoning in Porter regarding rulings on motions for summary judgment is likewise applicable to rulings on motions for directed verdict because the trial court here reserved its ruling on appellees’ motions for directed verdict not merely until the jury returned a verdict on the main claim, but until the jury had reconvened and returned a verdict on the Yost counterclaim. Thus, although the trial court effectively denied appellees’ motion by not directing the verdict on the “close case” presented in the main claim, the trial court, by waiting to accept the jury’s award on the Yost counterclaim, basically accorded itself a “second opportunity” to consider its ruling. Given that the transcript of the proceedings before the jury on the Yost counterclaim is not included in the record on appeal, nor does the record disclose any effort by appellant to have the transcript corrected to reflect the omitted material, OCGA § 5-6-41 (f), we must assume as a matter of law that the evidence adduced at trial supported the judgment below. Campbell v. Crumpton, 173 Ga. App. 488, 489 (2) (326 SE2d 845) (1985). Accordingly, we assume that facts were adduced during the Yost proceedings which the trial court could not have foreseen at the directed verdict stage and which the trial court, upon accepting the jury’s verdict, concluded authorized the jury’s award of abusive litigation damages. Given this conclusion, it follows that the trial court properly denied appellant’s motion for judgment n.o.v.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

Jay, Sherrell & Smith, Robert E. Sherrell, for appellees.


author: Sognier, Chief Judge. Cooper, Judge,

text:
    A91A1304.
    BALEST v. SIMMONS et al.
    (411 SE2d 576)
   Sognier, Chief Judge.

Tony Balest d/b/a Balest Construction Company brought suit against Kelvin J. Simmons and Audrey C. Simmons to recover a sum allegedly owed under a residential construction contract. The trial court granted summary judgment to the Simmonses on the ground that Balest executed an affidavit of final payment and therefore was precluded from recovering any additional payments. Balest appeals.

The contract at issue, executed on July 11, 1988, by appellant as contractor and appellees as owner, provided that appellant would construct a house for appellees in exchange for payment for all labor and materials (“estimated” to total $96,996) plus $15,000. The contract also obligated appellant to provide lien waivers from all subcontractors and suppliers prior to receipt of final payment.

During the course of construction, appellees paid appellant $110,600. A certificate of occupancy was issued on December 21, 1988. Appellant testified by deposition that a few days before the closing of appellees’ permanent loan, he informed them that he was owed approximately $18,000 for extra work performed pursuant to change orders issued during the project. At the January 4, 1989 closing, appellant executed a “Construction Loan Contractor’s Affidavit of Completion” which provided, inter alia, that appellant agreed “that all improvements on [appellees’] real estate are fully completed”; that “there are no unpaid bills of any nature for any improvements ... or any other work, labor or materials [provided to the project] at the direction of [appellant] or any agent of [appellant] except as disclosed below” (and nothing was disclosed in the space provided); and that “[appellant] makes this affidavit for the purpose of inducing [appellees’ lender] to disburse the balance of the loan heretofore granted to [appellees] . . . and for the purpose of inducing [appellees] to pay to [appellant] the balance due upon the contract price.” The lender then issued to appellees a check for $1,396 denominated as “final construction proceeds,” which appellees endorsed to appellant.

Two months later, appellant filed a claim of lien against appellees’ property and, within the statutory time limit, filed suit seeking to recover damages for breach of contract and to foreclose on the lien. The trial court granted appellees’ motion for summary judgment, ruling that appellant, by executing the affidavit providing that no bills remained unpaid without indicating that any additional payment was due and by receiving a check represented as final payment, waived any right to recover under the statutory lien provisions.

1. In his first enumeration of error, appellant maintains the trial court erred by concluding that appellant, by executing the affidavit of payment, waived or dissolved his statutory lien rights. OCGA § 44-14-361 (a) (2) grants to general contractors a special lien on the real estate for which they furnish labor, services, or materials. This special lien may be dissolved under OCGA § 44-14-361.2, which provides in pertinent part:

(a) The special lien specified in [OCGA § 44-14-361 (a)] shall be dissolved if the owner, purchaser from owner, or lender providing construction or purchase money or any other loan secured by real estate shows that:
(1) The lien has been waived in writing by lien claimant; or
(2) (A) They or any of them have obtained the sworn written statement of the contractor . . . that the agreed price or reasonable value of the labor, services, or materials have [sic] been paid or waived in writing by the lien claimant; and
(B) When the sworn written statement was obtained or given as a part of a transaction:
(i) Involving a conveyance of title in a bona fide sale;
(ii) Involving a loan in which the real estate is to secure repayment of the loan; or
(iii) Where final disbursement of the contract price is made by the owner to the contractor
there was not of record, at the time of the settlement of the transaction a valid preliminary notice or claim of lien which had not been previously canceled, dissolved, or expired.

(a) OCGA § 44-14-361.2 authorizes an owner, seller, or lender to dissolve a lien upon showing either that (1) the contractor gave a written lien waiver; or (2) the contractor provided a sworn statement that the agreed price or reasonable value was paid or waived in writing, and at the time such a statement was given in connection with any of the transactions listed in (a) (2) (B) (i)-(iii) the contractor had not previously filed a valid preliminary notice or claim of lien. Accord Star Mfg. v. Edenfield, 191 Ga. App. 665-667 (2) (382 SE2d 706) (1989) (contractor’s affidavit held sufficient to dissolve subcontractor’s lien because affidavit had been given in conjunction with contractor’s receipt of final payment (OCGA § 44-14-361.2 (a) (2) (B) (iii)) and no lien had been filed at the time of payment to contractor). This court’s recent decision in Drywall Supply &c. v. Diversified Shelter &c., 198 Ga. App. 549, 550-551 (2) (402 SE2d 321) (1991) incorrectly construed OCGA § 44-14-361.2 (a) (2) (B) to apply only “when the [contractor’s] affidavit is given in connection with the three transactions enumerated” in subparagraphs (2) (B) (i)-(iii). The panel held that since none of the enumerated transactions had occurred the requirement in (2) (B) of no prior recorded liens was not applicable, and the lien could be dissolved solely upon a showing of the requirements in (2) (A) even though the affidavit was made by the owner/contractor in response to a summary judgment motion and filed two years after the claim of lien was recorded.

This construction improperly ignored the word “and” that appears at the end of subparagraph (a) (2) (A) in derogation of the basic rule that a statute should be construed to “make all its parts harmonize and to give a sensible and intelligent effect to each part[, as i]t is not presumed that the legislature intended that any part would be without meaning. [Cit.]” Houston v. Lowes of Savannah, 235 Ga. 201, 203 (219 SE2d 115) (1975). The interpretation in Drywall Supply also is inconsistent with the obvious legislative intent of the 1983 amendments to the statutory lien laws, Ga. Laws 1983, pp. 1450, 1455-1456, which enacted a new Code section, OCGA § 44-14-361.2, incorporating a variation of former OCGA § 44-14-361 (b) into paragraph (a) (2) (A) of the new Code section and adding new language denominated as paragraph (a) (2) (B). Given the principle that “ ‘[a] legislative body should always be presumed to mean something by the passage of an act,’ [cit.]” Wilson v. Bd. of Regents, 246 Ga. 649, 650 (272 SE2d 496) (1980), we will presume from the addition of the new language in paragraph (a) (2) (B) that the General Assembly intended by its enactment to make some change in the existing law. See C. W. Matthews &c. Co. v. Capital Ford Truck Sales, 149 Ga. App. 354, 356 (254 SE2d 426) (1979). The addition in paragraph (a) of the requirement that, to be effective, a contractor’s affidavit must have been obtained by an “owner, purchaser ... , or lender” together with the new requirements in subparagraph (a) (2) (B) compels the conclusion that the purpose of OCGA § 44-14-361.2 (a) is to enable owners, purchasers, and lenders to clear property titles in order to complete closings of the transactions enumerated in (B) (i)-(iii). We conclude the proper construction of paragraph (2) of OCGA § 44-14-361.2 (a) is that a contractor’s affidavit will dissolve a lien only if the conditions in both subparagraphs (A) and (B) are met, and accordingly we overrule the contrary holding in Drywall Supply.

(b) In the case at bar, appellant proffered a contractor’s sworn statement as defined in OCGA § 44-14-361.2 (a) (2) (A) at a loan closing when no lien claim or preliminary notice had been filed. See OCGA § 44-14-361.2 (a) (2) (B) (ii). He contends, however, that the language in the affidavit did not meet the standard set forth in (a) (2) (A) because he averred only that he had paid the bills owed on the project and was giving the affidavit to induce final payment, but did not state that he received final payment of the full contract price.

While this court has not been called upon to address the effect of such language on the general contractor’s rights in the cases decided since the 1983 legislative amendments, we have construed similar language in general contractor’s affidavits to be sufficient to dissolve a subcontractor’s or supplier’s lien rights. See Walk Softly, Inc. v. Hyzer, 188 Ga. App. 230 (372 SE2d 500) (1988) (general contractor averred there were no outstanding bills or liens); Dixie Concrete Svcs. v. Life Ins. Co. of Ga., 174 Ga. App. 866 (331 SE2d 889) (1985) (contractor executed affidavit stating he had “ ‘paid in full or . . . otherwise satisfied all obligations for all materials and equipment furnished’ ” to the project); accord Star Mfg., supra at 665-667 (2) (contractor averred all materialmen had been paid).

As appellant notes, the affidavit he executed recited only that it was made for the purpose of “inducing” the lender to disburse the final construction proceeds and “inducing” appellees to make final payment. Nonetheless, it is undisputed that the lender did make such a disbursement, that appellees paid the entire proceeds to appellant, and that upon receiving this payment appellant had been paid the entire sum contemplated by the construction contract. Moreover, the clause averring that there were “no unpaid bills ... of any nature” provided for exceptions to be made for any items left unpaid, and at the time he executed the affidavit, appellant listed no such exceptions. Although he subsequently testified at his deposition that he had not been paid for change orders and that he had so informed appellees prior to the closing, we find this and other deposition testimony that he had not received final payment contradicted his prior affidavit testimony. No reasonable explanation for the contradiction was offered, so the favorable portion of the deposition testimony must be construed against him. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28-30 (1, 2) (343 SE2d 680) (1986). While we do not condone the imprecision of the affidavit language, following the rule in Prophecy together with the well-established rule that an affidavit purporting to dissolve lien rights must be construed strictly against appellant, the creditor, and in favor of appellees, the debtors, Dixie Concrete, supra, we conclude that under the circumstances of this case the affidavit as a whole was sufficient under OCGA § 44-14-361.2 (a) (2) to dissolve the lien rights of appellant as general contractor.

2. In his remaining enumerations, appellant contends the trial court erred by concluding that the affidavit barred his breach of contract claim. We do not agree, as we find appellant is estopped from asserting a claim in contravention of the sworn admission in his affidavit. Similar to the plaintiff in Hill v. Brooks, 133 Ga. App. 138 (210 SE2d 176) (1974), appellant is estopped because the lender would not have released the balance of the loan proceeds and appellees would not have tendered those proceeds to appellant but for his admission under oath that all bills had been paid and that final payment was to be made. OCGA § 24-4-24 (b) (8) (estoppel includes presumptions in favor of “[a]dmissions upon which other parties have acted, either to their own injury or to the benefit of the persons making the admissions”). Moreover, appellant’s failure to disclose exceptions in the space provided when by his own admission he was aware of the alleged additional obligations compels application of the rule of estoppel by silence, as appellant’s silence when he was offered an opportunity to raise his claim for additional payment was tantamount to an admission that no such exceptions existed. See C & S Nat. Bank v. Yeager Enterprises, 247 Ga. 797, 799 (279 SE2d 674) (1981).

Decided October 23, 1991.

Hartness, Link & Hardman, William B. Puryear, for appellant.

Burroughs, LeFevre & Wynne, J. David Burroughs, for appellees.

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Carley, P. J., Pope, Beasley, Andrews, JJ., and Judge Arnold Shulman concur. Cooper, J., concurs specially.

Cooper, Judge,

concurring specially.

Upon further review, I conclude that the affidavit submitted by the appellee in Drywall Supply &c. v. Diversified Shelter &c., 198 Ga. App. 549 (402 SE2d 321) (1991), who was the owner of the property, was in effect an owner’s affidavit. As such, the affidavit could only be utilized in the context of a sale or a loan on the property. OCGA § 44-14-361.2 (a) (2) (A). Since neither of these situations was involved in Drywall, the affidavit should not have been considered.


text:
    A91A1349.
    HADFIELD v. THE STATE.
    (411 SE2d 580)
   Judge Arnold Shulman.

The appellant pled guilty to one count of aggravated assault and one count of robbery and was sentenced to 20 years imprisonment on each count, to be served concurrently. At the time he entered the pleas, the appellant was represented by the public defender. However, he filed his notice of appeal pro se; and after the case was docketed in this court, the trial court appointed other counsel to represent him on appeal. Said counsel sought and obtained from the trial court leave to file an out-of-time motion for new trial challenging the effectiveness of the representation provided by the public defender and thereafter filed a motion in this court requesting that the case be remanded to the trial court for a ruling on the motion for new trial. We denied the motion for remand, based upon the principle that “ ‘a defendant who files a guilty plea cannot move for a new trial since there has been no verdict. [Cit.]’ [Cit.]” Bowens v. State, 194 Ga. App. 391 (1) (390 SE2d 634) (1990). The appellant contends in the present appeal that the record fails to establish that he received effective assistance of counsel in the court below or that he entered his pleas intelligently and voluntarily.

A “pre-trial conference” was held in open court on March 15, 1991, for the purpose of assisting the appellant and other criminal defendants in determining whether they wanted to plead guilty to the charges against them. During this proceeding, the state’s attorney outlined the facts which it expected to prove in the appellant’s case and-made certain disclosures to the court concerning the appellant’s prior criminal record. The trial court then advised the appellant as follows: “Well, Mr. Hadfield, I don’t know anything about the facts of this case other than what [the state’s attorney] has just told me, and so anything I say depends upon his being able to prove that or your acknowledgement that you are guilty of something. If he is able to prove all he has told to me of those two incidences, and probably whether it comes as a result of a plea or a jury trial, my conclusion is going to be that someone who did that with that record is the reason we have prisons. . . . And so I am telling you that if you are convicted in this courtroom for these offenses or you enter a guilty plea to those offenses, your sentence is going to be very lengthy, and I am probably not going to go along with the state’s recommendation to make all the sentences concurrent.”

Four days later, the appellant pled guilty to the two offenses at issue. Immediately prior to doing so, he was advised by the court that by pleading guilty he was giving up his right to a jury trial at which he would have the right to be represented by an attorney, to be presumed innocent until proven guilty, to testify or not testify according to his wishes, and to subpoena witnesses to testify on his behalf. The appellant acknowledged that he understood this, denied that anyone had made any threats or promises to induce him to plead guilty, and affirmed that he was entering his pleas freely and voluntarily. He then admitted that he was in fact guilty of the offenses at issue. Asked if he wanted to say anything before sentence was imposed, he replied, “I would like to apologize to the victims.”

After announcing the sentence, the judge advised the appellant as follows: “I want to make sure that you understand that as of this moment right now, you’ve got the right to withdraw your plea if you want to do so and we’ll have a jury trial. I don’t want you to feel any undue pressure, any pressure from me or anybody else in the system. If you have any questions about whether this is what you want to do, now is the time to let us know because we’ll start your trial right away.” The appellant responded by asking to confer with his attorney, and following an off-the-record discussion, his attorney informed the court that the appellant desired “to go ahead with the plea as it is right now.”

1. The appellant complains that the trial court failed to advise him that he would have the right to confront and cross-examine the witnesses against him if he went to trial, failed to make an affirmative finding that his pleas were knowingly and voluntarily entered, and failed to state on the record that there was a factual basis for the entry of the pleas. Notwithstanding these omissions, it is clearly apparent from the record both that a factual basis existed for the pleas and that the appellant was entering them freely and voluntarily, with a full understanding of the nature of the charges and the consequences of pleading guilty. See generally Haggins v. State, 259 Ga. 188, 189 (380 SE2d 711) (1989); Goodman v. Davis, 249 Ga. 11, 13 (287 SE2d 26) (1982). Accordingly, these asserted deficiencies establish no ground for reversal. Accord Scurry v. State, 194 Ga. App. 165 (390 SE2d 255) (1990).

2. The appellant contends that his trial counsel rendered ineffective assistance by not filing pre-trial motions, not giving him a copy of his file, and not objecting or filing a motion for recusal in response to the trial judge’s statement at the pre-trial conference that if the state was able to prove its factual allegations, then “probably whether it comes as a result of a plea or a jury trial, my conclusion is going to be that someone who did that with that record is the reason we have prisons. . . .” We are at a loss to understand how the judge’s disclosure that he intended to impose a lengthy sentence in the event the state was able to prove its factual allegations could be considered an expression of bias or prejudice against the appellant. With respect to counsel’s failure to file pre-trial motions, the record reflects that counsel did file a motion to suppress identification testimony, and the appellant’s counsel on appeal has not suggested what additional motions would have been appropriate. With respect to the appellant’s failure to receive a copy of his file, there is no suggestion that the file contained anything which might have militated against his decision to plead guilty. Moreover, the record shows that when this matter was raised at the pre-trial conference, the appellant’s counsel responded as follows: “The file that I have is essentially what [the state’s attorney] was kind enough to let me go through and get the statements and things like that, and [the appellant] had the time to read over that, and I sat there and basically occupied myself while [he] read over that at quite some length. I guess I was there at least two hours the last time I talked with him when he went over the file.” It is thus apparent that the appellant’s decision to plead guilty in this case was not attributable to ignorance concerning the contents of his attorney’s file.

Decided October 23, 1991.

Mark W. Hadfield, pro se.

William T. Hankins III, for appellant.

Robert E. Wilson, District Attorney, Gregory A. Adams, Barbara B. Conroy, Assistant District Attorneys, for appellee.

3. We have carefully considered the appellant’s remaining contentions, and to the extent they are not fully covered by the foregoing, we have found them also to be without merit.

Judgment affirmed.

Carley, P. J., concurs and Beasley, J., concurs in judgment only.


text:
    A91A1368, A91A1369.
    SARTIN v. THE STATE (two cases).
    (411 SE2d 582)
   Sognier, Chief Judge.

Dale Lamar Sartin was convicted in a nonjury trial of cocaine trafficking, possession of cocaine with intent to distribute, and possession of cocaine. In addition, the State obtained civil forfeiture of a truck and $423 in cash seized from Sartin at the time of his arrest. We have consolidated Sartin’s appeal in Case No. A91A1368 from the judgment of conviction and his appeal in Case No. A91A1369 from the denial of his motion to set aside the judgment of forfeiture.

1. In his first two enumerations in Case No. A91A1368, appellant contends the trial court erred by rejecting the plea bargain he entered into with the State. The record reveals that after appellant’s arrest in May 1989, law enforcement authorities induced him to assist their efforts to apprehend a major drug trafficker. As a result of appellant’s cooperation in this ultimately successful endeavor, his counsel and the prosecutor agreed to recommend to the trial court that a nolle prosequi be entered on the two more serious charges pending against appellant, and that in exchange for a guilty plea on the possession charge appellant should receive a probated sentence. The trial court, however, refused to consider the proposed plea agreement and proceeded with a trial.

It is well established that a trial court is not required to accept a plea of guilty. E.g., Echols v. State, 167 Ga. App. 307, 308 (306 SE2d 324) (1983). Nor is a court compelled to accept a plea agreement which has been reached by the State and the defendant. See State v. Germany, 246 Ga. 455, 456 (1) (271 SE2d 851) (1980). Appellant effectively concedes these principles, arguing instead that under the circumstance of this case the court’s refusal to accept the plea agreement after appellant had enabled law enforcement authorities to capture a major criminal suspect was a manifest injustice. Given that there is no constitutional right to plea bargain, Harris v. State, 167 Ga. App. 153, 155 (6) (306 SE2d 79) (1983), we find no authority to support appellant’s theory that the trial court should be compelled to accept the plea agreement.

2. Appellant next contends the trial court erred by declining to entertain his motion to suppress on the ground it was untimely filed. The record reveals that appellant was indicted on June 1, 1989, and on July 21 he, through counsel, waived arraignment, entered a plea of not guilty, and filed demands for a witness list and production of exculpatory evidence and other discoverable material. Appellant recites in a pleading filed below that the trial court was advised of the plea agreement as early as July 1990. Appellant was first tried by the court on November 19, 1990 without benefit of counsel, evidently as a result of confusion concerning the reason for counsel’s absence (he was trying a criminal case in another county), but appellant’s motion for new trial was granted three weeks later. He was then scheduled for trial on January 4, 1991, but the trial was continued until March because appellant was ill. Appellant filed his motion to suppress on March 8, 1991, the Friday before his second trial was scheduled to begin.

Although OCGA § 17-5-30, which governs the filing of motions to suppress, does not specify a time limit for the filing of such motions, our courts have held that a motion to suppress must be filed before the defendant enters a written plea. Waller v. State, 251 Ga. 124, 127 (5) (303 SE2d 437) (1983), rev’d on other grounds sub nom. Waller v. Georgia, 467 U. S. 39 (104 SC 2210, 81 LE2d 31) (1984). Under this rule, appellant’s motion to suppress was filed 19 months late. Moreover, even assuming, without deciding, that appellant’s delay was somehow excused or encouraged by the State because of the plea bargaining discussion, appellant was on notice at least by January 1991 — and possibly as early as July 1990 — that the trial court had rejected the plea agreement, but appellant still waited until March 1991 to file his motion. Under these circumstances, we find no error in the trial court’s refusal to entertain the motion. See Van Huynh v. State, 258 Ga. 663, 664 (2) (373 SE2d 502) (1988).

3. In Case No. A91A1369, appellant challenges the trial court’s denial of his motion to set aside the judgment of forfeiture. OCGA § 5-6-35 (a) (8) provides that appeals from orders denying motions brought under OCGA § 9-11-60 (d) to set aside judgments must be made by application, not by direct appeal. Although the instant motion did not expressly pray for relief under OCGA § 9-11-60 (d), the motion clearly was based on that statute and sought the relief provided thereunder. Accordingly, this direct appeal must be dismissed. See State Farm Mut. Auto. Ins. Co. v. Yancey, 258 Ga. 802 (375 SE2d 39) (1989).

Decided October 23, 1991.

John E. Sawhill III, for appellant.

Stephen F. Lanier, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

Judgment affirmed in Case No. A91A1368. Appeal dismissed in Case No. A91A1369.

McMurray, P. J., and Andrews, J., concur.


author: Beasley, Judge.

text:
    A91A1103.
    HAMMOCK v. THE STATE.
    (411 SE2d 743)
   Beasley, Judge.

Two indictments were returned against Hammock. The first charged him with aggravated anal sodomy of L. S., OCGA § 16-6-2 (a), and child molestation by fondling the penis of L. S., a boy less than 14 years of age, OCGA § 16-6-4 (a). The second charged him with child molestation by fondling the genital area of R. W., a boy less than 14 years of age, OCGA § 16-6-4 (a). Hammock was also cited as a recidivist in both indictments, OCGA § 17-10-7. A jury convicted him of both charges in the first indictment and found him guilty of attempted child molestation, OCGA § 16-4-1, under the second indictment.

New counsel filed a motion for new trial asserting the general grounds. Approximately three months later during the following term of court, counsel filed a motion in arrest of judgment attacking the second indictment as void and also an amended motion for new trial asserting that trial counsel was ineffective for, inter alia, failing to object to the allegedly defective indictment.

The trial court dismissed the motion in arrest of judgment as untimely filed and denied the amended motion for new trial after concluding that the challenged indictment was sufficient.

1. Appellant contends that the second indictment for child molestation was defective and void in that it failed to allege an essential element of the crime, that the touching was done with the intent to arouse or satisfy the sexual desires of either the child or the appellant.

(a) An appropriate vehicle for attacking a criminal judgment after it has been rendered on the basis of a void indictment is a motion in arrest of judgment, made during the term of court at which the judgment was obtained. OCGA § 17-9-61.

Although new counsel entered the case during the term in which the judgments of conviction were rendered, the motion in arrest of judgment was not filed until the following term of court. Dismissal for untimeliness was proper.

Appellant nevertheless urges that this Court should consider the substance of his attack on the indictment because (1) his motion for new trial was filed within the same term of court and the amended motion for new trial should relate back to that term of court, and (2) this Court can construe the motion in arrest of judgment as a petition for a writ of habeas corpus.

The untimely motion cannot be treated as a petition for writ of habeas corpus. The motion was filed in Chatham County, where appellant was convicted. There has been no showing that appellant is incarcerated in Chatham County, nor was the motion filed against the warden of the county in which appellant is incarcerated. See OCGA §§ 9-14-43; 9-14-45; Lacey v. State, 253 Ga. 711 (324 SE2d 471) (1985).

Appellant provides no authority for his proposition concerning relation back of the amended motion for new trial. Regardless of the timing of the amended motion for new trial (within or without the term in which the judgments were rendered), it was the appropriate vehicle for raising the claim of ineffective assistance of trial counsel. See Thompson v. State, 257 Ga. 386, 387 (2) (359 SE2d 664) (1987). In this case it also raised the issue of the validity of the second indictment.

(b) The indictment accused Hammock “with the offense of: CHILD MOLESTATION ‘SPECIAL PRESENTMENT’ for that said accused, in the County of Chatham and State of Georgia, on or about the period between March 1, 1989 and April 30, 1989, the exact date being unknown, did perform an immoral and indecent act to and upon [R. W.], a child under 14 years of age, to wit: did touch said child’s genital area, contrary to the laws of the State of Georgia, the good order, peace and dignity thereof; . . .”

As restated in State v. Howell, 194 Ga. App. 594 (391 SE2d 415) (1990): “ ‘(I)t is an elementary rule of criminal procedure that an indictment should contain a complete description of the offense charged, and that there can be no conviction unless every essential element thereof is both alleged in the indictment and proved by the evidence. (Cit.)’ [Cit.] . . . [However], ‘ “[a]n indictment substantially in the language of the Code is sufficient in form and substance.” (Cit.)’ (Emphasis supplied.) [Cit.] . . . ‘(W)here the indictment alleges an “offense,” and names and describes the offense in terms of the penal statute, and alleges that the act was “unlawfully” committed, and that it was “contrary to the laws” of the State, and employs language from which it must necessarily be inferred that the criminal intent existed, it is not void because it fails to expressly allege the criminal intent. (Cits.)’ (Emphasis in original.) [Cit.]”

Hammock’s indictment alleges the offense of child molestation in the caption. Although the Code section was not cited, there is only one offense in the state penal code entitled “child molestation.” Appellant was familiar with the offense, having been previously convicted of it. The indictment tracks the statutory language in stating that the offense was allegedly committed by an “immoral” or “indecent” act to the less-than-14-year-old child victim. These words are within common understanding. See McCord v. State, 248 Ga. 765 (285 SE2d 724) (1982). As to the word “indecent,” see Scarborough v. State, 231 Ga. 7, 8 (200 SE2d 115) (1973), where it is examined as part of another crime. In the context of “child molestation,” the word would alert a defendant that he or she was being charged with committing an unlawful act with a lustful intent against a child. Such an act would inherently be for someone’s sexual gratification. The only parties involved in the act of child molestation, i.e., those who could receive gratification from the act, would be the perpetrator or the child victim. Lastly, the language that the act was contrary to state law and its good order, peace and dignity makes clear that the act was committed unlawfully.

From the indictment as a whole, the existence of the requisite criminal intent is implicit. The indictment was not void as a matter of law.

2. Appellant’s contention that the failure of his trial counsel to contest the validity of the second indictment amounted to ineffective assistance of counsel under the United States Constitution fails. Its standard requires defendant to show counsel’s deficient performance as well as prejudice from the deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Inasmuch as the indictment was not void, see Division 1, supra, appellant was not prejudiced by the failure of trial counsel to challenge it.

3. Appellant’s contention that his conviction under the first indictment was tainted because it was tried together with the void second indictment likewise fails. See Division 1, supra.

4. Appellant urges error in the admission of evidence of his acts of child molestation and sodomy against four other boys. He maintains that there was no logical connection between the independent crimes and the charged offenses because none of the independent transactions involved forcible or aggravated sodomy as was charged in the first indictment on trial and because some of them occurred more than eight years prior to the trial on the present charges.

“ ‘The sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts perpetrated upon them is of sufficient similarity to make the evidence admissible.’ [Cit.]” Daniel v. State, 194 Ga. App. 495, 496 (1) (391 SE2d 128) (1990). In addition, there was similarity in fact between the independent transactions and the crimes on trial, as testified to at trial by the victims. Compare Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991).

The independent transactions all involved acts of molestation and sodomy against young boys ranging in age from not quite six to thirteen. In each instance, as in those on trial, the victim’s parent or parents were acquainted with appellant or had a family tie with him. The incidents all transpired in either the victims’ homes, to which appellant had ready access, or at appellant’s residence, often when appellant was babysitting for the victim.

An absence of the element of force in the independent acts is immaterial. “[A]n act of sodomy perpetrated upon a child who has not attained the age of 13 constitutes aggravated sodomy because the act done to a child of that age is automatically done with force and against the child’s will.” Huggins v. State, 192 Ga. App. 820, 821 (1) (386 SE2d 703) (1989).

The time gap between the similar acts and the offenses on trial did not preclude the similar acts. “Mere lapse of time between the commission of any prior similar crimes and the commission of the offenses currently at trial does not render the evidence automatically inadmissible. See Rich v. State, 254 Ga. 11, 14 (325 SE2d 761) [(1985)] (evidence eleven years old not inadmissible). Rather, lapse of time is a factor to be taken into consideration when balancing the probative value of the evidence against its potentially prejudicial impact.” Oller v. State, 187 Ga. App. 818, 820 (2) (371 SE2d 455) (1988). See also Landers v. State, 194 Ga. App. 329, 330 (2) (390 SE2d 302) (1990) (physical precedent); Ortiz v. State, 188 Ga. App. 532, 536 (5) (374 SE2d 92) (1988); Luckey v. State, 185 Ga. App. 262, 263 (3) (363 SE2d 791) (1987); Smith v. State, 182 Ga. App. 740, 742 (1) (356 SE2d 723) (1987); Cox v. State, 173 Ga. App. 422 (1) (326 SE2d 796) (1985).

The independent acts demonstrated a continuing, in fact almost annual, pattern of conduct. Their probative value outweighed the prejudicial impact and admission was not error.

5. Next is whether the trial court erred in denying appellant’s motion to sever trial on the two indictments.

“ ‘In Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975), (the Supreme C)ourt adopted ABA Standards of severance which provide that a defendant is entitled to severance if offenses are joined simply because they are similar in nature.’ Cooper v. State, 253 Ga. 736 (3) (325 SE2d 137) (1985). However, ‘(o)nly when the offenses have been joined solely because they are of the same or similar character shall the accused have a right to severance of the offenses. (Cits.)’ Jordan v. State, 172 Ga. App. 496 (1) (323 SE2d 657) (1984). Offenses are not joined solely because they are of the same or similar character where the similarity reaches the level of a pattern evincing a common motive, plan, scheme or bent of mind. Cooper v. State, supra at 737. ‘ “Where the modus operandi of the perpetrator is so strikingly alike, that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined — subject to the right of the defendant to a severance in the interests of justice. (Cits.)” ’ Jordan v. State, supra at 497. ‘[S] ever [a] nee in this particular kind of circumstance lies within the sound discretion of the trial judge. . . .’ Dingler, supra, 233 Ga. at 463.” Wilson v. State, 188 Ga. App. 779, 780 (1) (374 SE2d 325) (1988).

The joined offenses were not similar merely because they were sexual crimes against young boys but because they allegedly were committed in a similar manner, i.e., fondling of the genital areas. Moreover, the crimes were part of a pattern of appellant’s sexual abuse of young boys. Severance was not demanded.

6. State’s witness psychologist Brandt was permitted to testify about the child sexual abuse or accommodation syndrome. Citing Allison v. State, 256 Ga. 851 (353 SE2d 805) (1987), appellant maintains that evidence regarding the syndrome has been held inadmissible in this State over objection at the time of trial.

First, contrary to appellant’s interpretation, in Allison no objection was made at trial to the scientific reliability of the syndrome; therefore, any deficiency which might have been urged under the principles of Harper v. State, 249 Ga. 519 (292 SE2d 389) (1982) was waived. Allison, supra at 852 (1). The Supreme Court concluded that, there being no objection under Harper, the court did not err in holding that expert testimony of a child sexual abuse syndrome was competent evidence under OCGA § 24-9-67. Allison, supra at 852 (2).

Second, expert testimony regarding the syndrome has been permitted at trials for the sexual abuse of children. See, e.g., Braggs v. State, 189 Ga. App. 275, 276 (2) (375 SE2d 464) (1988); Keri v. State, 179 Ga. App. 664, 665 (1) (347 SE2d 236) (1986).

Lastly, the psychologist testified only generally about the characteristics of the syndrome. She offered no opinion about whether or not the alleged sexual abuse had occurred. Compare Allison, supra; State v. Butler, 256 Ga. 448, 449 (1) (349 SE2d 684) (1986); Landers v. State, supra at 329 (1).

7. Appellant contends that the trial court erred in allowing the district attorney to engage in prosecutorial misconduct by commenting in the jury’s presence on the necessity of appellant to take the witness stand to rebut the State’s case.

The objected-to comment occurred during the defense’s cross-ex-animation of State’s witness, Sergeant Branson. Defense counsel attempted to elicit from the witness that appellant’s behavior and response during questioning indicated his innocence of the charges. The State interjected: “Now at this point, Judge, I’m going to object. If Mr. Hammock wants to come into this court and deny it, then we’ll let him, but self-serving declarations out of court are hearsay, and I’m going to object at this point.”

Following some argument by both sides, the State reiterated its objection. The jury was sent out, there was further argument by counsel, and defense counsel moved for a mistrial. The court denied a mistrial but offered to give instruction to the jury to the effect that the State had the total burden of proof and that the defense had no burden to put up any evidence whatsoever. Defendant accepted the offer but stated that he did not wish to abandon his motion.

The jury returned and was instructed and the defense continued its cross-examination of Branson. In the closing jury charge, the court reaffirmed the State’s burden and elaborated: “[T]he defendant in a criminal case is under no duty to present any evidence tending to prove his innocence. He is not required to take the stand and testify in the case. If he elects not to testify, no inference hurtful, harmful, or adverse to the Defendant shall be drawn by the jury, nor shall such fact be held against him in any manner whatsoever.”

Appellant relies on the two-prong test derived from United States v. Rochan, 563 F2d 1246 (5th Cir. 1977): “ ‘[R]eversal for improper prosecutorial conduct requires a finding that (1) “the prosecutor’s manifest intention was to comment upon the accused’s failure to testify” or (2) the comment was “of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” Ranger, supra at 319.’ [Cits.]” Turner v. State, 258 Ga. 97, 101 (4) (365 SE2d 822) (1988).

The record does not show a manifest intention on the prosecutor’s part to comment on appellant not testifying. It reflects instead the State’s frustration with repeated attempts by defendant to elicit from State’s witnesses self-serving declarations allegedly made by the appellant. See Grude v. State, 189 Ga. App. 901, 902 (2) (377 SE2d 731) (1989).

Lack of prosecutorial intent ends appellant’s claim of reversible error.

8. Another claim of prosecutorial misconduct is described as the district attorney’s injecting appellant’s character in issue and again commenting on his failure to testify.

The comment at issue occurred during the State’s redirect examination of Sergeant Branson. See Division 7, supra. The prosecutor asked: “Based on your training and experience in this area of investigations, is it uncommon for a convicted child molester to deny molesting new victims?” The witness responded, “Oh, no, sir, not at all.” Defendant objected without giving any basis but the court sustained the objection. Defense counsel thanked the court and the State’s redirect concluded. In a bench conference defendant then moved for a mistrial on the basis of the objected-to exchange but again provided no legal basis.

Whether or not the motion for mistrial was timely, the failure to raise either the character objection or the complaint of improper comment on the failure to testify precludes appellate review. “[I]t is well-settled that this court will not consider issues raised for the first time on appeal. [Cit.]” Cooper v. State, 173 Ga. App. 254, 256 (1) (325 SE2d 877) (1985).

9. Appellant enumerates error in the court’s failure to grant a continuance of trial based on certain newly discovered inculpatory evidence.

During jury selection, a former Department of Family & Children’s Services (DFACS) employee who was testifying as a State’s witness was permitted to review her DFACS file for the first time since leaving the agency. She discovered an entry recorded contemporaneously with a telephone conversation with appellant to the effect that appellant admitted the charged molestation of R. W. and that he retained the potential to molest. She disclosed the discovery to the State during the lunch recess of jury selection.

The State prepared a disclosure form containing this new information and served defense counsel with it less than an hour later. The following morning and prior to the swearing of the jury, the Court held a brief hearing on the matter. While the defense mentioned a foreign case allegedly calling for either the exclusion of such late appearing evidence or a continuance, the defense did not move for a continuance. The State read the subject file entry into the record and the court gave defendant the opportunity to interview the witness and inspect the file at the lunch recess. He did not inspect the file.

After the trial resumed, defendant moved for a continuance on the basis that the DFACS file needed to be examined. The court denied the continuance after finding that the defense had had the opportunity at the lunch recess and that it failed to see how the defense would benefit from a continuance in regard to examination of the file. Prior to the witness’ testimony, defense counsel examined the notation in the file.

“ ‘All applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require.’ OCGA § 17-8-22. ‘The grant or denial of a continuance is within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of discretion. (Cit.) . . .’ [Cit.]” Graham v. State, 171 Ga. App. 242, 255 (16) (319 SE2d 484) (1984).

Decided October 15, 1991

Reconsideration denied October 24, 1991

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

Appellant and counsel had a timely opportunity to examine the file and in fact examined the only cited material from the file, i.e., the alleged statement by appellant, prior to any relevant testimony. Moreover, appellant has not demonstrated how he was harmed in regard to admission of evidence of the statement by being denied a continuance ostensibly to further examine the DFACS file or take steps after learning its content. No abuse of discretion is shown. See Satterfield v. State, 256 Ga. 593, 599 (10) (351 SE2d 625) (1987).

10. The evidence was sufficient to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgments affirmed.

Carley, P. J., and Judge Arnold Shulman concur.

       The statement was non-custodial, so OCGA § 17-7-210 is not applicable. Johnson v. State, 177 Ga. App. 705 (1) (340 SE2d 662) (1986).


text:
    A91A1375.
    STITH v. THE STATE.
    (411 SE2d 532)
   Beasley, Judge.

Following denial of his motion for new trial, Stith appeals his convictions for kidnapping, OCGA § 16-5-40 (a), armed robbery, OCGA § 16-8-41 (a), aggravated assault, OCGA § 16-5-21 (a), hindering the apprehension of a criminal, OCGA § 16-10-50, and possession of firearm during commission of a crime, OCGA § 16-11-106.

1. The first question is whether the trial court erred in denying the motion for mistrial and allowing the State to re-open its case so the victim could make an in-court identification based on the sound of appellant’s voice as listened to by the victim while appellant was testifying. The complaint is that the procedure violated the rule of sequestration, was an improper re-opening of the case rather than rebuttal, and was unduly suggestive.

First, “OCGA § 24-9-61 provides: ‘In all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other. The court shall take proper care to effect this object as far as practicable and convenient; but no mere irregularity shall exclude a witness.’ The rule as expressed in the statute plainly allows latitude in its application. Furthermore, the trial court is vested with the discretion to make exceptions to this rule; and unless the discretion is abused, the decision will not be reversed on appeal. [Cit.]” Chastain v. State, 255 Ga. 723, 724 (2) (342 SE2d 678) (1986).

Discretion was not abused because the purpose of the rule was not compromised. “ ‘The purpose of the rule of sequestration (OCGA § 24-9-61), is to prevent a witness who has not testified, or who has not completed his or her testimony, from overhearing and having his or her testimony affected by the testimony of another witness. . . .’ [Cit.]” Almond v. State, 173 Ga. App. 423, 424 (1) (326 SE2d 798) (1985). Here, the victim was not recalled following appellant’s testimony in order to further or alter the substance of his own recounting of the incident in light of the substance of appellant’s testimony. He was recalled merely to testify about the similarity of the sound of the witness’ voice to the sound of the gunman’s voice during commission of the crimes. Identification was the issue, not the content of appellant’s overheard testimony.

Second, assuming the additional testimony by the victim was a re-opening of the State’s case rather than a rebuttal, “[t]he trial court is vested with broad discretion in allowing a party to reopen its case and present evidence. [Cits.]” Aikens v. State, 194 Ga. App. 195, 196 (2) (390 SE2d 102) (1990).

Lastly, the contention that the voice identification was unduly suggestive under a Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972) analysis is unavailing. There has been no showing of a substantial likelihood of irreparable misidentification. See Martin v. State, 193 Ga. App. 581, 582 (1) (388 SE2d 420) (1989). Moreover, such an in-court voice identification in and of itself is no more or less suggestive than the common visual identification of a criminal defendant by a victim as the defendant sits at the defense table.

There was no error in allowing the victim to hear the appellant’s testimony, in permitting the State to recall the victim, and in admitting the victim’s identification of the appellant by his voice.

2. Appellant contends that no rational trier of fact could have found proof of his guilt beyond a reasonable doubt because there was insufficient evidence identifying him as the perpetrator.

Appellant raises the objected-to in-court voice identification, which has been ruled on in Division 1. Even were such voice identification excluded, there was other evidence linking appellant to the crimes.

Decided October 2, 1991

Reconsideration denied October 24, 1991.

John H. Tarpley, for appellant.

Paul N. Stith, pro se.

Robert E. Wilson, District Attorney, Barbara B. Conroy, J. Michael McDaniel, Nelly F. Withers, Assistant District Attorneys, for appellee.

Appellant’s co-defendant, who had already pled guilty to some of the charges, testified against appellant. In addition, during the victim’s abduction and armed robbery, the victim was able to observe other distinguishing features of the gunman. The victim, who was held at gunpoint on the floorboard of his car during the 15 or 20-minute ride, saw that the gunman wore distinctive clothes, a red tee shirt with writing and dark blue jeans with holes in the right leg, which were distinguishable in size and location. Appellant was seen and photographed wearing similar clothes. Such clothes were later recovered at a vacant apartment where appellant was living.

The victim was further able to discern the man’s race, approximate height, weight, age, and hair length even though during the incident, the man kept a nylon mask over his face. In addition, the victim testified about the calm and mellow nature of the gunman’s verbal exchange with him. Appellant himself testified as to his ability to calm a situation with speech.

The victim’s stolen car was located the day after the abduction and it led police to appellant and the co-defendant asleep in a nearby vacant house which the two had broken into. During the arrests, nylon stockings were found in appellant’s pockets.

The evidence that appellant was the gunman was sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley, P. J., and Pope, J., concur.