author: McMURRAY, Presiding Judge.

text:
    A97A1272.
    JERUSHEBA v. THE STATE.
    (487 SE2d 465)
   McMURRAY, Presiding Judge.

Defendant Jerusheba appeals his conviction of the offense of stalking, OCGA § 16-5-90 (a). Held:

1. Defendant questions the sufficiency of the evidence at trial to authorize his conviction. Considered in the light most favorable to sustaining the verdict of the jury, the evidence at trial shows that defendant was known to the victim only because they were occasionally both passengers on a public transit bus. The 66-year-old victim had never initiated or held any conversation with defendant beyond an exchange of “good morning” greetings such as she customarily made to the driver and all present when she boarded the bus. The victim received a series of five sexually explicit letters which defendant admitted sending. She had no idea how defendant learned her last name and address. The first two letters were thrown awáy while the final three were presented in evidence at trial. Upon receipt of the third letter the victim complained to postal authorities and then to the police.

OCGA § 16-5-90 (a) provides that: “A person commits the offense of stalking when he or she follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person. For the purpose of this article, the term ‘place or places’ shall include any public or private property occupied by the victim other than the residence of the defendant. For the purposes of this article, the term ‘harassing and intimidating’ means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear of death or bodily harm to himself or herself or to a member of his or her immediate family, and which serves no legitimate purpose. This Code section shall not be construed to require that an overt threat of death or bodily injury has been made.”

In the case sub judice, the evidence shows that defendant contacted (that is, got in touch with or communicated with) the victim by mail at her home. Johnson v. State, 264 Ga. 590, 591 (1) (449 SE2d 94). The victim’s home is a “place or places” as defined in the statute. The victim testified that she did not consent to the contact. Defendant maintains that he met the victim through general conversations held on the bus and thought he had recognized signs of sexual interest from her. Defendant testified that he had written, stating his name and that he would like to call on her, and had undertaken to write the series of letters to give her “some idea as to where I’m coming from, what I’m about.”

Regardless of defendant’s explanation of his motives, we find that the jury was authorized to conclude that defendant engaged in a knowing and wilful course of conduct towards the victim which was intended to and did place her in reasonable fear of bodily harm. This emotional distress was reasonable in view of the content of the letters sent by defendant. The letters contained lurid, detailed, and graphic descriptions of defendant’s sexual aspirations concerning the victim with whom he had no prior relationship of any substance. Whether the explicit sexual references alone were threatening to a reasonable person need not be determined since they were combined with defendant’s statements that he had been recently present outside the victim’s home awaiting some signal that his overtures had been accepted or by expressions of his intent to return to the victim’s home at some specified time to fulfill his sexual desires. The jury could find that these circumstances combined to amount to a thinly veiled threat communicated without any legitimate purpose. That the defendant did not appear at the victim’s door does not abrogate the offense arising from the intentional infliction of emotional distress upon her. The evidence is sufficient to authorize a reasonable trier of fact to conclude that defendant was guilty beyond a reasonable doubt of the offense of stalking. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Adkins v. State, 221 Ga. App. 460 (471 SE2d 896).

Decided June 4, 1997

Before Judge Workman.

K. David-Glen R. Jerusheba, pro se.

Ralph T. Bowden, Jr., Solicitor, Noah H. Pines, W. Cliff Howard, Assistant Solicitors, for appellee.

2. Defendant’s remaining enumerations of error complain that his arrest was illegal in that the arrest warrant was invalid due to the insufficiency of the supporting affidavit. However, defendant does not seek the exclusion of any evidence obtained as a result of the arrest, and any illegal arrest, without more, would not amount to a bar to prosecution or a defense to a valid conviction. Ricks v. State, 204 Ga. App. 441, 442 (1) (419 SE2d 517).

Judgment affirmed.

Beasley and Smith, JJ, concur.


source: Caselaw Access Project

author: Per curiam.

license: Public Domain

text:
    A97A0076.
    A97A0124.
    SMITH v. ADAMSON et al. SMITH v. WINDER NEWS et al.
    (487 SE2d 386)
   Per curiam.

Case No. A97A0076

Mrs. Jimmy Smith sued judges Robert Adamson and T. Penn McWhorter, two of the three superior court judges in the Piedmont Judicial Circuit. She alleged that Judges Adamson and McWhorter should have recused themselves in prior cases involving her and her family; challenged decisions the judges made in those cases; and sought to impeach the judges, void their decisions in past cases, and enjoin them from sitting on future cases. The case was assigned to Judge T. David Motes, who dismissed the case sua sponte. The trial court then assessed a monetary sanction against Smith, and also imposed injunctive sanctions limiting Smith’s ability to file future pro se lawsuits. As we agree with the trial court that the action had to be dismissed and that the sanctions imposed were warranted, we affirm.

1. The case was properly assigned to Judge Motes, the only judge in the circuit not a defendant in the case. See Uniform Superior Court Rule 25.4. And Smith’s motion to recuse Judge Motes was properly denied without a hearing before another judge, since Smith’s supporting “affidavit,” which was not signed or notarized, was in any case legally insufficient to give rise to reasonable doubts about Judge Motes’ impartiality. See USCR 25.2 and 25.3; In re Shafer, 215 Ga. App. 520 (451 SE2d 121) (1994); Penney v. State, 157 Ga. App. 737 (1), 738 (2) (278 SE2d 460) (1981).

2. The sua sponte dismissal of the case was also clearly proper. See Ga. Receivables v. Williams, 218 Ga. App. 313 (461 SE2d 280) (1995) (trial court has inherent authority to dismiss a complaint sua sponte in an appropriate case). The courtroom is not the proper forum to initiate or try impeachment proceedings. See Ga. Const. 1983, Art. Ill, Sec. VII, Pars. I & II. Moreover, judgments in prior actions cannot be collaterally attacked by bringing a separate action in another court. OCGA § 9-11-60. And equitable relief to enjoin defendants from sitting in future cases is not available because an adequate legal remedy is; Smith can bring motions for recusal to be decided on a case-by-case basis. See Page v. Grady, 788 FSupp. 1207, 1212, n. 8 (N.D. Ga. 1992). Cf. also Page, 788 FSupp. at 1211-1212 (although a federal court can grant injunctive relief against an “inferior” state court judge to prevent a violation of a person’s civil rights, it cannot review the actions or practices of a co-equal court).

3. The trial court ordered Smith to pay defendants $5,000 for attorney fees expended in defending this frivolous action. The court found that Smith had filed at least 25 lawsuits in the prior 18 years, most of which were against public officials, entities, and employees. None had been successful, and at least one had resulted in award of attorney fees against her for filing a frivolous suit. But this sanction was apparently insufficient to prevent her from filing this frivolous suit. The court therefore went on to order that any future suits filed by Smith pro se in the Piedmont Judicial Circuit would have to (1) be accompanied by an affidavit from Smith that the suit is not frivolous, malicious, or vexatious, and is substantially justified; (2) be accompanied by an affidavit from the clerk of the court stating that the $5,000 sanction in this case has been paid in full; and (3) be approved by the judge assigned to hear the case, who will dismiss the suit sua sponte if it is found to lack substantial justification.

This limitation on Smith’s ability to file pro se lawsuits does not totally deprive her of meaningful access to the courts and is reasonable under the circumstances. See, e.g., Urban v. United Nations, 768 F2d 1497, 1499-1500 (D.C. Cir. 1985); Morgan County v. Winslow, 862 P2d 921, 923-924 (Colo. 1993). Cf. Howard v. Sharpe, 266 Ga. 771 (470 SE2d 678) (1996) (when a prisoner repeatedly files frivolous habeas petitions, his access to the courts may be limited by an order imposing reasonable restrictions on his right to file future suits).

Case No. A97A0124

When Judge Adamson was running for Superior Court Judge, Smith wrote a letter to the editor of The Winder News (“The News”), accusing him of improperly using his influence with Judge McWhorter, one of Adamson’s former law partners. Before publishing Smith’s letter, The News contacted Adamson and asked if he wished to respond. He did respond, in a letter in which he pointed out that Smith had brought numerous unsuccessful lawsuits in which she accused numerous judges and other public officials of wrongdoing. The letter also urged those who did not know Smith to “check with almost any sheriff, school official, or court official to find out more about her.” Adamson delivered the letter August 4, 1992, and on August 5, 1992, The News printed the letters together in the “Editor’s Mailbox” section of the “Opinion” page. Unhappy with Adam-son’s response, Smith brought this action for libel against both Adamson and The News. Judge Adamson’s motion for summary judgment was granted based on the statute of limitation, and although Smith at first appealed from this decision, she eventually dismissed her appeal. The News’ motion to dismiss for failure to state a claim was denied.

The News and Smith entered into settlement negotiations, and a dispute arose regarding whether a settlement agreement had been reached: The News said it had, but Smith denied it. The News therefore filed a motion to enforce the settlement agreement, and further moved to take Smith’s deposition even though the discovery period was closed. The court reopened discovery for this purpose, but Smith refused to cooperate in scheduling a deposition and filed a motion for a protective order. The court denied the motion for a protective order, denied Smith’s request for a certificate of immediate review, and informed Smith that the deposition had to go forward in the absence of a court order to the contrary. Smith then agreed to make herself available June 3, 1996, at 10:00 a.m. She nonetheless filed a notice of appeal from the denial of the protective order, and even though counsel for The News informed her that the notice of appeal was void because the order was not appealable without a certificate of immediate review, she did not appear for her scheduled deposition.

When the court received a copy of Smith’s notice of appeal, it sua sponte dismissed the invalid appeal and ordered Smith to appear for a deposition June 6, 1996. The court subsequently received The News’ motion for sanctions, and scheduled a hearing on the motion for June 10, 1996. On June 6, 1996, Smith again failed to appear, saying she had a doctor’s appointment. And on June 10, the day the trial was scheduled to begin, she filed a motion to recuse Judge Richard Story (the judge from another circuit to whom the case had been assigned after Judge McWhorter recused himself). Judge Story denied the motion to recuse and granted The News’ motion for sanctions, dismissing the libel case with prejudice.

4. Smith’s appeal from the denial of her protective order was properly dismissed, as it was an interlocutory order which cannot be appealed without a certificate of immediate review. Smith’s reliance on R. J. Reynolds Tobacco Co. v. Fischer, 207 Ga. App. 292 (427 SE2d 810) (1993), an opinion involving a discovery order issued by a Georgia court in a case from another state, is frivolous.

5. The court did not abuse its discretion in denying the motion to recuse, as the motion was untimely and the supporting affidavit was legally insufficient. See USCR 25.2. Contrary to Smith’s apparent belief, a ruling against her is not an indication of bias.

6. Nor did the court abuse its discretion in dismissing the case with prejudice when Smith twice failed to attend her scheduled deposition — at least one of which was clearly court-ordered. See OCGA § 9-11-37 (b) and (d); Jarallah v. Pickett Suite Hotel, 193 Ga. App. 325 (388 SE2d 333) (1989). Unlike the trial court in Loftin v. Gulf Contracting Co., 224 Ga. App. 210 (480 SE2d 604) (1997), the trial court here gave Smith a meaningful opportunity to explain, but then rejected her explanation, explicitly finding that her failure to cooperate was intended to defeat the discovery process and delay trial of the case. The trial court repeatedly gave Smith the benefit of the doubt as a pro se litigant, but properly noted that such litigants cannot be allowed to take advantage of their pro se status to the point that their adversaries are effectively penalized for being represented.

7. Smith also enumerates as error the trial court’s grant of summary judgment for defendant Judge Adamson. As she fails to support this enumeration with any argument, we consider it abandoned. See Court of Appeals Rule 27 (c) (2). In any case, the grant of summary judgment based on the statute of limitation was proper, since Judge Adamson’s only publication of the letter was when he delivered it to The News on August 4, 1992, and this action was filed on August 5, 1993, more than one year later. See OCGA § 9-3-33 (action for injury to reputation must be brought within one year).

Decided May 22, 1997

Reconsideration denied June 5, 1997

Before Judge Motes.

Mrs. Jimmy H. Smith, pro se.

Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, John C. Jones, Senior Assistant Attorney General, David J. Marmins, Assistant Attorney General, for Adamson et al.

Long, Aldridge & Norman, Bruce P. Brown, Blasingame, Burch, Garrard, Bryant & Ashley, E. Davison Burch, for Winder News et al.

8. We have reviewed Smith’s remaining enumerations and conclude they are meritless.

Judgments affirmed.

All the Judges concur.


author: Andrews, Chief Judge.

text:
    A97A0197.
    CHEMIN et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (487 SE2d 638)
   Andrews, Chief Judge.

The Chemins, the insureds of State Farm Mutual Automobile Insurance Company (State Farm) under an automobile policy, appeal from the trial court’s grant of summary judgment to State Farm on their claim for the return of monies paid to State Farm. State Farm asserted and the trial court granted summary judgment to State Farm on its voluntary payment defense pursuant to OCGA § 13-1-13.

The following facts are not disputed. The Chemins were both injured in an automobile accident on August 13, 1992, and Mrs. Chemin was injured in another accident on July 28, 1993. The Chemins contended that third parties Tucker and Morgenstern, respectively, were liable to them for the injuries suffered, but they also made a claim under their State Farm policy Medical Payments provisions.

State Farm claims agents sent numerous letters through 1994 to the Chemins and their counsel after he was retained asserting State Farm’s right to reimbursement for these medical payments from any third-party recovery pursuant to the policy. On November 29, 1994, the Chemins’ counsel sent their checks totaling $4,587 reimbursement for the Tucker claim to State Farm “[p]ursuant to State Farm’s demand letter.” The letter further stated that the Chemins “deny that you are entitled to these payments. These payments in response to your demand are made under protest, and [the Chemins] reserve all rights they may have under applicable law.” A similar letter was sent on December 30, 1994, with a check reimbursing State Farm $2,261 for the Morgenstern claim.

These sums represented portions of the settlements negotiated by the Chemins’ attorney with Tucker’s and Morgenstern’s insurers. As part of these settlements, both of those insurers required the Chemins to indemnify and hold them harmless from any State Farm claims for reimbursement of medical costs.

The Chemins then filed this suit against State Farm seeking to recover these payments, contending that the reimbursement provision of the policy was invalid or, alternatively, was improperly applied to them.

OCGA § 13-1-13 provides that “[p]ayments of claims made through ignorance of the law or where all the facts are known and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party are deemed voluntary and cannot be recovered unless made under an urgent and immediate necessity therefor or to release person or property from detention or to prevent an immediate seizure of person or property. Filing a protest at the time of payment does not change the rule prescribed in this Code section.”

The Chemins contend that the payments were made under a mistake of law and are therefore refundable, relying on, e.g., Emond v. State Farm &c. Ins. Co., 175 Ga. App. 548, 550 (2) (333 SE2d 656) (1985). Emond, however, dealt with a pre-Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 712 (300 SE2d 673) (1983), payment of PIP benefits and whether the payment of medical benefits could be reallocated toward additional PIP coverage claimed by the insured. The Supreme Court found that State Farm’s payment of $5,000 in excess medical payment benefits was properly allocable to State Farm’s obligation to pay additional PIP under Flewellen, and not precluded by OCGA § 13-1-13, because of the uncertainty of the interpretation of statutes in this area of the law “by the bench, bar, insurers and insureds.” Emond, supra at 550 (2). The Court found this to be, not ignorance of the law, but a mistaken interpretation of the law which entitled State Farm to the reallocation.

The Chemins’ situation, on the other hand, involves contract language known to both parties and their respective counsel. No mistakes as to the contract language or the facts of this situation are put forth by the Chemins. Either the contract of insurance did or did not require the Chemins to reimburse medical payments. Rather than pay the contested funds into the registry of the court and file a declaratory judgment action, OCGA § 9-4-1 et seq., the Chemins chose to pay State Farm “voluntarily, however unwisely.” Knight v. Dept. of Transp., 239 Ga. 368, 371 (4) (236 SE2d 826) (1977).

Decided June 5, 1997

Before Judge Weeks.

Ragsdale, Beals, Hooper &. Seigler, David K. Beals, Gary W. Hatch, for appellants.

Powell, Goldstein, Frazer & Murphy, Dean S. Daskal, Linda G. Birchall, Samuel R. Mansbach, for appellee.

In support of its motion for summary judgment, State Farm submitted the affidavits of the claims adjusters who worked the medical payments claims, including copies of the demand letters.

In response, only the affidavit of the Chemins’ attorney was submitted, in which he states that, prior to sending the checks to State Farm, he settled the Chemins’ claims against third parties, negotiated the settlement checks, and then sent the reimbursement checks to State Farm. There is no showing made concerning any factual mistake or legal mistake on the part of the Chemins, only counsel’s attempted reservation of rights in his letters transmitting the checks. They have therefore failed to fulfill their obligation as respondent to the motion under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In re Estate of Edith Brown Brannon, 264 Ga. 84 (441 SE2d 248) (1994).

The trial court properly granted summary judgment to State Farm, the Chemins having failed to show a mistake of fact or law that would negate the voluntary payment defense. Cotton v. Med-Cor Health &c., 221 Ga. App. 609, 611 (2) (472 SE2d 92) (1996); Rod’s Auto Finance v. The Finance Co., 211 Ga. App. 63 (1) (438 SE2d 175) (1993).

Judgment affirmed.

Beasley and Smith, JJ, concur.

       No copy of the policy at issue or the medical payments provision is included in the record before us, although a letter from State Farm quotes this provision.

       The enforceability of such clauses was acknowledged in Duncan v. Integon Gen. Ins. Corp., 267 Ga. 646 (482 SE2d 325) (1997), finding, as a matter of public policy, that the complete compensation rule limits the applicability of such a reimbursement provision, at least where the insurance contract does not contain an express provision to the contrary.


author: Ruffin, Judge.

text:
    A97A0316.
    A97A0317.
    MAXWELL v. MAYOR & ALDERMEN OF THE CITY OF SAVANNAH et al. GELLATLY v. MAXWELL.
    (487 SE2d 478)
   Ruffin, Judge.

James Maxwell, a former police officer for the City of Savannah (“the City”), sued, among others, the Mayor and Aldermen as the City’s governing body, and the City’s Chief of Police, David Gellatly. In his complaint, Maxwell alleged, inter alia, that the defendants wrongfully terminated him from his employment as a police officer and that Gellatly defamed him in connection with the termination. Maxwell alleged that these actions constituted violations of his due process rights to property and liberty under 42 USC § 1983 and state law. These appeals follow the trial court’s order disposing of the defendants’ motion for summary judgment. In Case No. A97A0316, Maxwell appeals the trial court’s grant of summary judgment against him on his § 1983 claims, and in Case No. A97A0317, Gellatly appeals the trial court’s denial of his motion on Maxwell’s defamation claim. For reasons which follow, we affirm in part and reverse in part the trial court’s judgment in Case No. A97A0316, and we affirm the trial court in Case No. A97A0317.

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

Viewed in a light most favorable to Maxwell, as the respondent to the defendants’ motion, the record shows that in 1992 Maxwell was the subject of a federal investigation involving illegal drug activity. Maxwell was subsequently charged in a criminal indictment with conspiracy to possess with intent to distribute and conspiracy to distribute a controlled substance. Following Maxwell’s arrest, Gellatly immediately terminated his employment with the police department.

The termination notice, which Gellatly issued to Maxwell on May 22, 1992, provided that “[effective 5-26-92, your employment with the City of Savannah is terminated for . . . ‘[cjonduct unbecoming of an officer.’ ” The notice further provided that ££[w]ithin 24 hours following suspension prior to dismissal, you may respond in a written appeal to the superior of the supervisor who initiated the termination action if you feel the action is unjustified.” Finally, the notice informed Maxwell that he had a right to initiate an appeal to the Civil Service Board by filing a notice of appeal within ten days from his receipt of the termination notice. Despite these appeal provisions, and others contained in an employee handbook and the department’s Standard Operating Procedures, Maxwell did not appeal his termination. A subsequent trial on the charges against Maxwell resulted in a mistrial, and the indictment was eventually dismissed with prejudice.

In the instant complaint, Maxwell alleged That his termination was in violation of the City’s employee handbook and Standard Operating Procedures which were provided to him during his employment. A page from the employee handbook attached to Maxwell’s affidavit provides that ££[t]he Rules and Regulations provide that department heads may take certain disciplinary action against employees whose conduct or performance is not satisfactory. This action may take the form of a reprimand, demotion, suspension, or dismissal for good cause. . . .” The Standard Operating Procedures attached to Maxwell’s affidavit provide that ££[f]inal departmental disciplinary authority and responsibility rests with the Chief of Police. For disciplinary purposes, the Chief of Police has authority to . . . dismiss the employee from the Department, subject to review by the City Manager.” Maxwell contends that because he could be terminated only “for cause,” he had a protected property interest in continued employment which could not be terminated without due process. In granting the defendants summary judgment, the trial court found that because “[tjhere is no statement in any of the documents produced that an employee of the police department may only be fired Tor cause[,]’ ” they did “not confer upon [Maxwell] a legitimate claim of entitlement to continued employment with the police department.” (Emphasis in original.)

Case No. A97A0316

1. Maxwell asserts that the trial court erred in granting summary judgment on his § 1983 property claim because he had a property interest in continued employment and because it is an “essential principle] of due process that such a property right shall not be impinged without affording notice and appropriate hearing prior to discharge.” Although we agree with Maxwell that the trial court erred in concluding that he did not have a protected property interest in continued employment, we nevertheless affirm the decision because Police Chief Gellatly is entitled to qualified immunity against this claim and there is no evidence establishing the City’s liability.

42 USC § 1983 provides a cause of action to an individual who has been deprived of a property right by a government official without due process. See 42 USC § 1983; Atlanta City School Dist. v. Dowling, 266 Ga. 217, 218 (466 SE2d 588) (1996). “Under Georgia law a public employee has a property interest in her job whenever she may only be dismissed for cause. This interest is not dependent upon the presence of the specific words ‘for cause,’ as long as whatever provisions apply are meant to be analogous to allowing termination only for cause. The relevant inquiry is into the expectations of the parties involved.” (Citations and punctuation omitted.) Peterson v. Atlanta Housing Auth., 998 F2d 904, 914 (11th Cir. 1993).

The defendants in this case have presented no evidence showing that Maxwell was an employee at will. Rather, the only evidence cited shows that Maxwell may be dismissed for “good cause.” The trial court’s reliance on the fact that the handbook did not state that Maxwell “may only be fired ‘for cause’ ” ignores the rule that on summary judgment the evidence is to be construed in a light most favorable to the nonmoving party. See Lau’s Corp., supra. Viewing the handbook provision in this light, and in the absence of evidence to the contrary, we find that Maxwell could be dismissed only for cause. Accordingly, contrary to the trial court’s order, we find that Maxwell did have a property interest sufficient to support a claim under 42 USC § 1983. See Peterson, supra.

Despite this finding, however, we conclude that Gellatly was immune from the § 1983 claim in this case. Gellatly’s qualified immunity defense is governed by federal law. Forney v. Purvis, 190 Ga. App. 192, 195 (2) (378 SE2d 470) (1989). Citing federal law, this Court has recognized that “[government officials performing discretionary functions are granted a qualified immunity shielding them from imposition of personal liability pursuant to 42 USC § 1983 insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (Citations and punctuation omitted.) Thomas v. Holt, 221 Ga. App. 345, 347-348 (1) (471 SE2d 300) (1996). “ ‘Unless a government agent’s act is so obviously wrong, in the light of pre-existing law, that only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing, the government actor has immunity from suit. (Cit.) . . . For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant’s place, that “what he is doing” violates federal law. (Cit.)’ [Cit.]” Id. at 348.

Under a two-part analysis applied by the Eleventh Circuit, a defendant public official asserting immunity must show that “ ‘he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.’. . . Once the defendant public official satisfies his burden[,] . . . the burden shifts to the plaintiff to show lack of good faith on the defendant’s part. The burden is met by proof demonstrating that the defendant public official’s actions ‘violated clearly established constitutional laws.’ [Cit.]” Stough v. Gallagher, 967 F2d 1523, 1526 (11th Cir. 1992).

It is clear in this case that Gellatly was acting within the scope of his discretionary authority when he dismissed Maxwell. Gellatly’s burden was met “by showing objective circumstances which would compel the conclusion that his actions were undertaken pursuant to the performance of his duties and within the scope of his authority.” (Citation and punctuation omitted.) Sims v. Metropolitan Dade County, 972 F2d 1230, 1236 (11th Cir. 1992). It is undisputed that Gellatly was the Chief of Police at the time he dismissed Maxwell and the Standard Operation Procedures attached to Maxwell’s affidavit clearly state that “[f]inal departmental disciplinary authority and responsibility,” which includes the authority to dismiss an employee, rests with the Chief of Police.

Having decided that Gellatly met his initial burden, we must determine whether Maxwell has shown his dismissal “violated clearly established constitutional law.” Stough, supra. Although we concluded above that Maxwell had a property interest in his employment with the police department, to establish a cause of action under § 1983, Maxwell must also show that Gellatly deprived him of that interest without due process. See 42 USC § 1983; McKinney v. Pate, 20 F3d 1550, 1555-1556 (11th Cir. 1994). Accordingly, the appropriate question here is whether, at the time Maxwell was dismissed, the law concerning due process was sufficiently developed in such a concrete and factually defined context to make it obvious to all reasonable government actors in Gellatly’s place that what he was doing violated federal law. See Thomas, supra.

In McKinney, the Eleventh Circuit held that “a procedural due process violation is not complete ‘unless and until the State fails to provide due process.’ [Cit.] In other words, the state may cure a procedural deprivation by providing a later procedural remedy; only when the state refuses to provide a process sufficient to remedy the procedural deprivation does a constitutional violation actionable under section 1983 arise.” McKinney, supra at 1557. Although a tenured employee is entitled to a pretermination hearing, “[t]hat hearing is not a mini-trial and ‘need not definitely resolve the propriety of the discharge. It should be an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.’ [Cit.]” Id. at 1561. Furthermore, as stated above, even if an employee suffers a procedural deprivation at a termination hearing, “he has not suffered a violation of his procedural due process rights unless and until the [government actor] refuses to make available a means to remedy the deprivation.” (Emphasis in original.) Id. at 1563.

In this case, Maxwell has not met his burden of showing Gellatly’s actions clearly violated the above due process standards. First, the record shows that Maxwell was notified of his rights to a pretermination hearing. The notice of termination issued May 22, 1992, provided that it was “[e]ffective 5-26-92.” In the interim, Maxwell could have taken advantage of the appeal process contained in the termination notice and of the grievance procedures provided in the employee handbook. Even if these procedures were deficient, Maxwell had the option of pursuing the post-deprivation remedy of appealing to the Civil Service Board. Considering the availability of these pre- and post-termination remedies, and Maxwell’s failure to present authority showing these remedies deprived him of due process, we cannot say that it must have been obvious to all reasonable government actors in Gellatly’s place that terminating Maxwell under the above procedures violated federal law. Thomas, supra at 348. Under these circumstances, Gellatly is immune from Maxwell’s § 1983 property claim.

2. With regard to the Mayor and Aldermen, the complaint alleges that they were sued as “the governing body of the City of Savannah” and that Maxwell’s wrongful termination “was approved and ratified by [these] defendants. . . .” However, the only evidence of record shows that, although subject to review by the city manager, final disciplinary authority and the decision to terminate Maxwell rested solely with Police Chief Gellatly. Furthermore, Maxwell stated in his affidavit that the “hand-book promulgated by [the City]” indicated that he could be terminated only for good cause shown. This evidence not only shows that the City had no part in Maxwell’s termination, but also that it was the City’s policy that he could be terminated only for cause. Maxwell cannot rest on his pleadings alleging that the City ratified his wrongful termination. See Lau’s Corp., supra. Because he failed to point to any evidence giving rise to a triable issue on this claim, summary judgment was proper. See Gwinnett County v. King, 218 Ga. App. 800, 802 (3) (463 SE2d 511) (1995).

3. Maxwell also asserts that the trial court erred in granting summary judgment in favor of Gellatly on his § 1983 claim for deprivation of his liberty interest without due process. According to Maxwell, Gellatly made defamatory statements to third parties in connection with his termination that deprived him of his good name and reputation without due process in violation of 42 USC § 1983. Maxwell thus asserts that the trial court erred in granting Gellatly summary judgment on this claim. We agree.

Federal law recognizes the cause of action asserted here. “Under federal law, a plaintiff can recover for a deprivation of reputational liberty upon proof of the following elements: ‘(1) a false statement (2) of a stigmatizing nature (3) attending a governmental employee’s discharge (4) made public (5) by the governmental employer (6) without a meaningful opportunity for employee name clearing.’ Buxton v. City of Plant City, Fla., 871 F2d 1037, 1042-43 (11th Cir. 1989).” Duck v. Jacobs, 739 FSupp. 1545, 1551 (S.D. Ga. 1990). “If at trial [Maxwell] prove[s] the above six elements, [he] will be entitled to prevail; [his] federal constitutional claims are not restricted by the specific features of Georgia’s state defamation law. [Cit.]” Id. at 1551.

In this case, Maxwell alleged that Gellatly published defamatory remarks in connection with his discharge to the Georgia Peace Officer Standards & Training Council (“POST”) and to Leonard Small, a local pastor. The record contains a letter from POST to Maxwell in which it informed him that his certification as a peace officer was revoked on the ground that he was “ ‘dismissed from [the] Savannah Police Department for Conduct Unbecoming an Officer.’ ” The record further contains Small’s affidavit in which he personally witnessed Gellatly make statements on the television in which Gellatly “wrongfully imputed a crime to James Maxwell.”

Gellatly contends that these statements are insufficient to support Maxwell’s § 1983 claim for several reasons. Gellatly argues that the POST letter does not show that he was the individual who informed POST that Maxwell was dismissed for conduct unbecoming an officer. We agree. There is nothing in the letter, which is the only evidence cited to support this claim, which indicates Gellatly was the source of the information. Accordingly, Maxwell has failed to meet his burden of pointing to evidence showing that Gellatly publicized the allegedly defamatory statement.

The same is not true with regard to the statements Gellatly allegedly made on television. Small’s affidavit shows that Gellatly made allegedly false and stigmatizing statements about Maxwell, and there is no evidence that Maxwell was given any meaningful opportunity to clear his name. Although the record shows that Maxwell was entitled to post-deprivation appeals concerning his employment termination, there is no evidence showing he could have pursued these appeals after Gellatly’s televised statements. Moreover, considering the fact that the statements were televised, it is unclear whether such appeals could have provided a “meaningful opportunity” for name clearing.

Gellatly’s contention that the statements did not attend Maxwell’s discharge is also without merit. Viewing Small’s affidavit in a light most favorable to Maxwell, we find it shows the statements were made during media coverage of the termination. Gellatly has cited no authority showing such statements cannot be considered attendant to the termination, and we believe that the issue of whether the statements actually attended Maxwell’s termination is properly left for the jury or factfinder to decide. Although Gellatly also argues that Maxwell has presented no evidence that the statements hampered his ability to secure employment, neither Duck nor Buxton requires that as an element of the cause of action, and Gellatly has cited no authority to the contrary.

Finally, we note that although Gellatly argued below that he was entitled to qualified immunity against Maxwell’s § 1983 wrongful discharge claim, he made no such argument below concerning Maxwell’s § 1983 claim that he was wrongfully deprived of his liberty interest. Accordingly, although Gellatly argues on appeal that he is entitled to immunity on this claim, “[a]s grounds which may be considered on appeal are limited to those which were urged before the trial court, we will not review this issue.” (Citations and punctuation omitted.) Kannady v. State Farm &c. Ins. Co., 214 Ga. App. 492, 495 (5) (448 SE2d 374) (1994).

Case No. A97A0317

4. Gellatly asserts that the trial court erred in denying him summary judgment on Maxwell’s state law defamation claim because (1) his statements constituted expressions of opinion, (2) Maxwell was a public official and has failed to establish actual malice, and (3) Gellatly is protected by official immunity. The record shows, however, that although Gellatly moved for summary judgment on Maxwell’s defamation claim, the motion was based solely on the argument that the claim was barred by the statute of limitation. Because Gellatly did not move for summary judgment on these grounds below, we will not consider them on appeal. Id.

Judgment affirmed in part and reversed in pari in Case No. A97A0316. Judgment affirmed in Case No. A97A0317.

Birdsong, P. J., and Eldridge, J., concur.

Decided June 5, 1997.

Before Judge Mikell.

Novit, Scarminach & Williams, Dale E. Akins, Billy E. Moore, for Maxwell.

Oliver, Maner & Gray, Patrick T. O’Connor, David S. Gruskin, for Gellatly.

Wiseman, Blackburn & Futrell, James B. Blackburn, Abda L. Quillian, for Mayor & Aldermen of the City of Savannah.


author: Beasley, Judge.

text:
    A97A0653.
    A97A0869.
    MASON v. THE STATE. REEVES v. THE STATE.
    (487 SE2d 476)
   Beasley, Judge.

Christine Mason and Orrian Reeves were convicted of possession of cocaine. There was evidence that officers found them in the same room as the cocaine and related cocaine paraphernalia, an eyewitness had seen them smoking cocaine just prior to the officers finding them in that room, the officers saw thick clouds of smoke coming from the room as they approached same, and the officers found defendants sweating profusely and with bloodshot, watery, glazed eyes, which symptoms are indicative of recent cocaine use.

1. The primary issue on appeal is whether the eyewitness’s trial testimony, which contradicted her previous statement that she had seen Mason and Reeves smoke cocaine, required the trial court to direct verdicts of acquittal to Mason and Reeves or to grant their motions for new trial. Because the out-of-court statement was substantive evidence and supports the verdicts, denial of the motions was not error.

Citing Paden v. State, 216 Ga. App. 188 (453 SE2d 788) (1995) (see also Morrison v. State, 220 Ga. App. 151, 153 (1) (a) (469 SE2d 686) (1996)), Mason and Reeves argue that the circumstantial evidence was insufficient to sustain a conviction under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Claiming that no direct evidence tied them to the cocaine found in the room where they were discovered by police, Mason and Reeves assert that the clouds of smoke, their own physical appearances, and their spatial proximity to the cocaine were all purely circumstantial evidence and could not alone sustain a conviction, for other non-incriminating reasonable hypotheses could explain this evidence.

As set forth in Paden and Morrison, this principle applies only where there is no direct evidence linking the defendant to the cocaine. Paden, supra at 189; Morrison, supra at 153. Mason and Reeves point out that at trial the eyewitness testified she did not see them smoking cocaine that morning. But, as the eyewitness admitted at trial, she had previously signed a statement that she had seen both Mason and Reeves smoking cocaine in the house that morning. “[A] prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence.” Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982).

2. Mason’s second enumeration of error is that the trial court wrongly denied Mason’s motion for mistrial made as a result of an officer’s testimony that in his opinion Mason was under the influence of cocaine when he found her. Mason claims this opinion went to the ultimate fact and was inadmissible. See Nichols v. State, 177 Ga. App. 689, 692-693 (2) (340 SE2d 654) (1986). Pretermitting whether the officer’s conclusion invaded the jury’s province or whether the question was a proper one for opinion evidence, the matter has not been preserved for appeal. Immediately on Mason raising her objection to the testimony and intimating that a mistrial might be appropriate, the trial court gave a curative instruction, as requested by Mason, for the jury to disregard the officer’s statement about whether or not Mason appeared to be under the influence of cocaine. Mason later urged that the curative instruction was insufficient, but she did not indicate wherein the instruction was insufficient nor did she renew her motion for a mistrial, assuming that her earlier statements could be construed as a motion for mistrial.

“ “When prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions.’ [Cit.] Further, ‘in order to preserve an issue for appellate review after curative instructions are given the motion for mistrial must be renewed (or the) issue is barred.’ [Cits.]” Bowman v. State, 222 Ga. App. 893, 895 (476 SE2d 608) (1996). See Woodham v. State, 263 Ga. 580, 582 (439 SE2d 471) (1993); Pless v. State, 260 Ga. 96, 99 (390 SE2d 40) (1990). Mason’s failure to renew the mistrial motion is fatal to this enumeration of error.

Decided June 5, 1997.

Before Judge Parrott.

Waddell, Emerson & Buice, John H. Bradley, for appellant (case no. A97A0653).

Robert M. Boulineau, for appellant (case no. A97A0869).

Fredric D. Bright, District Attorney, Stephen A. Bradley, Assistant District Attorney, for appellee.

Mason argues that her later objection to the sufficiency of the curative instruction preserved this issue for appeal. “Even if [the later objection] was sufficient to preserve an issue regarding the effectiveness of the instruction, it did not serve to preserve the issue regarding the denial of the motion for mistrial, which is the error enumerated on appeal. [Cit.]” Sing v. State, 217 Ga. App. 591, 593 (458 3E2d 493) (1995). Accordingly, the issue is not properly before this Court.

Even if it were, “the trial court’s election to give the jury a curative instruction will not be disturbed on appeal absent an abuse of discretion, which will not arise if the curative instruction given can serve to prevent any prejudicial impact. [Cit.]” Bogan v. State, 206 Ga. App. 696, 700-701 (6) (426 SE2d 392) (1992). As in that case, we “are satisfied the curative instruction given served to prevent any prejudicial impact by the statement at issue.” Id. at 701.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

       Mason’s notice of appeal was filed within thirty days of the trial court’s oral ruling on the motion for new trial but three days before the trial court entered its written order. Mason’s appeal is nevertheless properly before us. Livingston v. State, 221 Ga. App. 563 (1), 564-568 (472 SE2d 317) (1996).

       Reeves asserted only the enumeration of error discussed in Division 1.

       The objection and purported motion for a mistrial were actually made by counsel for other co-defendants. The parties had stipulated that an objection by one defendant applied to the other defendants unless otherwise indicated. Por purposes of this appeal, this Coiirt assumes this stipulation was also intended to cover the purported motion for mistrial.


text:
    A97A0793.
    McCLAIN v. THE STATE.
    (487 SE2d 471)
   Beasley, Judge.

In appealing his DUI conviction, Stanley McClain claims that the trial court should have suppressed an officer’s testimony about McClain’s performance on certain field sobriety tests. McClain argues that the officer lacked an articulable suspicion to stop McClain, thus violating his constitutional rights. Because the first possible “stop” occurred after the officer had smelled alcohol on McClain’s breath, the judgment is affirmed.

At 4:00 a.m. on January 26, 1996, a police officer witnessed McClain leave the parking lot of a bar in a quickly accelerating vehicle. Believing that McClain might soon exceed the speed limit, the officer followed for about a mile and a half and caught up where McClain was waiting to make a left turn at a stoplight. When the light changed, McClain turned left and immediately made a sharp right turn into a lit parking lot at the rear of a shopping center. The officer watched as McClain slowly made a counterclockwise turn so that he faced the officer, who was now entering the parking lot. Even though the officer did not flag McClain, turn on his blue flashing lights, nor do anything else to indicate he wanted McClain to stop, McClain stopped and the officer pulled up alongside. To this point, the officer had observed no traffic violations.

As the two men sat in their vehicles, the officer asked McClain how he was doing, what brought him out this time in the morning, and whether he was lost. McClain responded that he was fine and was going to an area different than the direction he had originally been traveling. The officer smelled alcohol and requested McClain to “wait here just a second.” The officer pulled his patrol car around to face the rear of McClain’s vehicle, exited, and spoke to McClain through McClain’s window. He asked for McClain’s driver’s license and proof of insurance, which McClain could not find.

As the officer continued to speak with McClain, the odor of alcohol became stronger, and McClain appeared unsteady, had dilated, glassy, red eyes, and slurred his speech. When asked if he had had anything to drink, McClain stated he had had five or six beers. The officer asked McClain to submit to several field sobriety tests, including the horizontal gaze nystagmus, the walk and turn, and the one-leg stand, which tests McClain had difficulty completing. After the officer placed McClain under arrest, McClain refused to undergo any chemical tests of his blood, breath, or urine, claiming that he was taking a prescription drug (Paxil) that he felt would interfere with the tests.

On the morning of trial, McClain moved in limine to exclude the officer’s testimony on the ground that the officer had no articulable suspicion to stop McClain. The court preferred to hear the motion following the presentation of the evidence, so McClain renewed it at the conclusion of the State’s case. The court denied the motion, finding that no stop had occurred. The jury convicted McClain of driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)), and acquitted him of driving under the influence of alcohol and drugs (OCGA § 40-6-391 (a) (4)).

1. McClain enumerates as error denial of his motion in limine and motion to suppress, on the ground there was no articulable suspicion justifying a Terry stop. See Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). “Because there was no physical evidence sought to be introduced, defendant’s motion is more accurately denominated a motion in limine to exclude the officer’s testimony based on the alleged constitutional violation.” State v. Roe, 211 Ga. App. 129 (1) (438 SE2d 186) (1993).

There are “ ‘ “three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief ‘seizures’ that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. (Cits.)” ’ [Cit.]” Alexander v. State, 166 Ga. App. 233, 234 (2) (303 SE2d 773) (1983). “In the first level, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or .belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. . . . The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.” (Citations omitted.) State v. Banks, 223 Ga. App. 838, 839-840 (479 SE2d 168) (1996).

The first question is whether the officer stopped or detained McClain to the extent that such was a “seizure” under the Fourth Amendment. McKinley v. State, 213 Ga. App. 738, 739 (445 SE2d 828) (1994). “ ‘A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. ... In order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer’s requests or otherwise terminate the encounter.’. . . [Cit.]” Id.

The officer’s following of McClain’s vehicle (with no blue lights flashing on the patrol car) did not indicate that McClain was not free to drive on. State v. Wright, 221 Ga. App. 202, 206-208 (4) (470 SE2d 916) (1996). Nor did the officer’s approaching McClain’s stopped vehicle and making inquiries as to what was going on constitute a seizure of McClain. The actions of an officer approaching a stopped vehicle, requesting to see a driver’s license, and inquiring about possible criminal or suspicious activity clearly fall within the realm of the first type of police-citizen encounter and do not amount to a stop. Burns v. State, 216 Ga. App. 178, 179-180 (454 SE2d 152) (1995); VonLinsowe v. State, 213 Ga. App. 619, 621 (445 SE2d 371) (1994); Rogers v. State, 206 Ga. App. 654, 656-657 (426 SE2d 209) (1992); Ward v. State, 193 Ga. App. 137, 138 (1) (387 SE2d 150) (1989). Cf. State v. Smith, 137 Ga. App. 101, 102 (223 SE2d 30) (1975) (ordering a defendant to either roll down his window or open the door constitutes a seizure).

The facts closely parallel those of Crosby v. State, 214 Ga. App. 753 (449 SE2d 147) (1994). In Crosby, the officer followed a car into an apartment complex, where the car parked. The officer pulled alongside the car and asked for identification. The officer then got out of his car and approached the parked vehicle to see if the occupants were engaged in any illegal activity. “When appellant rolled the window down, the officer noticed appellant’s eyes were bloodshot and alcohol was on his breath.” Id. at 754. After hearing the defendant slur his speech and admit to having a few beers and after observing the defendant act unsteady on his feet, the officer then administered some field sobriety tests and placed the defendant under arrest. In the appeal of the DUI conviction, this Court held that the initial encounter did not constitute a stop or seizure, and that “once appellant rolled down his window and revealed his bloodshot eyes and the strong odor of alcohol, Officer Kemp had reasonable grounds to conduct an investigative inquiry.” Id. at 755.

‘When reviewing a trial court’s decision on a motion to [exclude evidence], we must construe the evidence favorably to uphold the trial court’s findings and judgment, and the trial court’s findings must be upheld if any evidence supports them. [Cit.]” Richards v. State, 225 Ga. App. 777, 778 (1) (484 SE2d 683) (1997). See State v. Banks, supra at 839; Alex v. State, 220 Ga. App. 754 (470 SE2d 305) (1996). The evidence supported the trial court’s finding that there was no seizure when McClain voluntarily stopped his vehicle and the officer approached and inquired. During the inquiry, the officer smelled alcohol. Only at that point did the officer tell McClain to “wait here just a second” and park his patrol car behind McClain. Even if telling McClain to “wait here just a second” constituted a seizure, at that point the officer had smelled the alcohol on McClain’s breath, which provided “reasonable grounds to conduct an investigative inquiry to determine whether appellant was engaged in criminal activity, e.g., driving under the influence.” Crosby, 214 Ga. App. at 755. See Richards v. State, supra at 778.

Denial of the motion in limine was not error.

2. McClain contends that the evidence was insufficient to sustain his conviction under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). In view of the evidence about McClain set forth above (failing sobriety tests, slurring his speech, having bloodshot, glazed eyes, appearing unsteady, admitting to having five or six beers, refusing to permit chemical analysis, etc.), this argument fails. See OCGA § 40-6-392 (d) (refusal to permit chemical analysis is admissible against defendant).

3. In his third enumeration, McClain claims error in the court’s allowing the officer to bolster his own testimony. In response to a question as to why he arrested McClain, the officer testified that blood and alcohol test results (when available) had consistently confirmed that those individuals who failed the field sobriety tests administered by him were over the legal limit of .10 grams of alcohol concentration. See OCGA § 40-6-391 (a) (5).

McClain failed to object to this testimony at trial and thus waived the issue for appeal. Carr v. State, 214 Ga. App. 367, 368 (2) (448 SE2d 33) (1994). Issues cannot be raised for the first time on appeal. Shropshire v. State, 223 Ga. App. 118, 119 (2) (476 SE2d 859) (1996).

Because of the claim of ineffective assistance of counsel, we nevertheless address the merits of this enumeration. The referenced testimony is not improper bolstering, but merely an explanation of the probable cause for arrest. Improper bolstering “refers to character evidence intended to show a witness’ veracity, that is, his tendency to tell the truth.” (Emphasis in original.) Kimbrough v. State, 215 Ga. App. 303, 304 (2) (a) (450 SE2d 457) (1994). Kimbrough held that reference to objective evidence which verified conclusions reached by the officer is not improper bolstering, for such does not go to the officer’s veracity. This enumeration of error fails.

Decided June 5, 1997.

Before Judge Robins.

J. M. Raffauf, for appellant.

4. Next, McClain enumerates as error the denial of a directed verdict on Count 2, which accused McClain of driving under the influence of alcohol and drugs (OCGA § 40-6-391 (a) (4)). Acquittal on this count rendered the error, if any, harmless if not moot. Ayers v. City of Atlanta, 221 Ga. App. 381, 382 (471 SE2d 240) (1996); Jones v. State, 200 Ga. App. 666 (2) (409 SE2d 251) (1991).

5. Finally, McClain claims he was denied effective assistance by trial counsel’s failure to (1) file a written motion to suppress, (2) object to the officer bolstering his own testimony, and (3) make a clearer record that the parking lot was off a main street and was well lighted and marked. McClain has moved to remand the case for a hearing on this matter, but has also requested that the Court consider the issues raised on the merits on the current record. See Elrod v. State, 222 Ga. App. 704, 705 (475 SE2d 710) (1996) (where record sufficient, appellate court may decide ineffectiveness issue without remand). Remand is unnecessary.

“ ‘To show inadequacy of trial counsel, a defendant must establish not only that counsel’s conduct fell below an objective standard of reasonableness, but, further, that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. [Cit.]’ [Cit.]” Lindo v. State, 218 Ga. App. 756, 758 (463 SE2d 148) (1995). With regard to failing to file a written motion to suppress, counsel’s conduct hardly fell below an objective standard of reasonableness, for no tangible, physical evidence was introduced. “Only tangible physical evidence is subject to motions to suppress. Testimony is outside the scope of a motion to suppress and should be objected to on the trial,” which is exactly what McClain’s counsel did through his motion in limine. (Citations and punctuation omitted.) Smith v. State, 221 Ga. App. 670, 671 (1) (472 SE2d 503) (1996).

With regard to the failure to object to the officer’s bolstering his own testimony, such testimony was proper. See Division 3. Finally, as conceded by McClain, the record is sufficient to show that the parking lot was off a main street and was well lighted and marked.

Judgment affirmed.

McMurray, P. J., and Smith, J, concur.

Ralph T. Bowden, Jr., Solicitor, Michael D. Johnson, W. Cliff Howard, Assistant Solicitors, for appellee.

       In his first enumeration of error McClain claims the evidence was insufficient to sustain a conviction. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Because the officer’s testimony was the only evidence introduced at trial, whether that testimony is admissible must first be addressed.

       Similarly, a police officer may approach citizens who are on foot to make inquiries without fear of intruding on constitutional rights. See Edwards v. State, 264 Ga. 615, 616 (449 SE2d 516) (1994); State v. Willis, 207 Ga. App. 76, 77 (427 SE2d 306) (1993); King v. State, 161 Ga. App. 382 (1), 383 (288 SE2d 644) (1982).

       The cases cited by McClain involve officers who through the use of blue flashing lights or other means actually stopped or pulled over the defendant, and thus are not applicable. See State v. Goodman, 220 Ga. App. 169 (469 SE2d 327) (1996); State v. Jones, 214 Ga. App. 593 (448 SE2d 496) (1994); Streicher v. State, 213 Ga. App. 670 (445 SE2d 815) (1994); State v. Golden, 210 Ga. App. 800 (437 SE2d 492) (1993); Jorgensen v. State, 207 Ga. App. 545 (428 SE2d 440) (1993); Brown v. State, 188 Ga. App. 184 (372 SE2d 514) (1988); Tarwid v. State, 184 Ga. App. 853 (363 SE2d 63) (1987).

       Compare Kelly v. State, 129 Ga. App. 131, 132-133 (198 SE2d 910) (1973) (seizure occurs where officers approach a stopped vehicle brandishing a pistol and badge and asking for the keys).

       In Ward v. State, 193 Ga. App. 137 (387 SE2d 150) (1989), we held that an officer telling a person who had just started his parked car to “Wait a minute, I want to talk to you,” did not constitute a Terry stop.

       Furthermore, because McClain attacked the accuracy of the field sobriety tests as well as the officer’s credibility, such testimony would have been permissible on redirect and therefore is harmless error. See Blige v. State, 264 Ga. 166, 167 (2) (441 SE2d 752) (1994) (bolstering allowed if witness’ credibility attacked).


author: Blackburn, Judge.

text:
    A97A1187.
    WILLIAMS v. THE STATE.
    (487 SE2d 470)
   Blackburn, Judge.

Kim Williams a/k/a Kim Hannah appeals the sentence he received after entering a guilty plea to the crimes of aggravated assault and criminal trespass. Williams contends that the trial court erred in failing to sentence him on the criminal trespass charge, in failing to allow him to cross-examine the victim, and in sentencing him to a harsher sentence than that offered by the State in a plea offer which he did not accept. For the reasons set forth below, we affirm Williams’ sentence.

■ 1. Williams enumerates as error the trial court’s failure to sentence him on the criminal trespass charge to which he pled guilty. Williams argues that because the trial court failed to find him guilty and pronounce sentence on the criminal trespass charge, this Court should vacate the sentence imposed on the aggravated assault charge and remand the case for resentencing. Pretermitting whether such a result would be necessary even if the trial court erred, the record before us indicates that a nolle prosequi order was entered on the criminal trespass charge.

Whether the nolle prosequi was properly entered is not before us on appeal. Furthermore, as the circumstances under which it was entered are not in the record, we must assume the proper procedure was followed. See OCGA § 17-8-3; Hubbard v. State, 225 Ga. App. 154, 156 (483 SE2d 115) (1997) (absent a transcript it must be assumed that proper procedure for entering an order of nolle prosequi was followed). Therefore, Williams’ enumeration of error is without merit.

2. Williams contends the trial court erred in failing to allow him to cross-examine the victim pursuant to OCGA § 17-10-1.2 (c). Such Code section provides, in relevant part, that the “court shall allow the defendant the opportunity to cross-examine and rebut the evidence presented of the victim’s personal characteristics and the emotional impact of the crime on the victim.” However, OCGA § 17-10-1.2 (d) provides that “[n]o sentence shall be invalidated because of failure to comply with the provisions of this Code section. This Code section shall not be construed to create any cause of action or any right of appeal on behalf of any person.” Therefore, Williams’ enumeration is without merit.

3. Williams contends that the trial court imposed a harsher sentence on the aggravated assault charge because he did not accept the State’s plea offer. The State’s original offer recommended a sentence of ten years for a guilty plea. However, Williams did not accept the plea, but instead entered an “open-ended” plea of guilty. During sentencing, the State recommended the maximum sentence of 20 years imprisonment. See OCGA § 16-5-21. The trial court sentenced Williams to seventeen years — twelve years imprisonment and five years probation.

Decided June 5, 1997.

Before Judge Ellington, pro hac vice.

Lovett Bennett, Jr., for appellant.

Richard A. Malone, District Attorney, for appellee.

Williams asserts that the United States Supreme Court’s decision in North Carolina v. Pearce, 395 U. S. 711 (89 SC 2072, 23 LE2d 656) (1969), should be extended to the present case. The Pearce decision requires the trial court to make an affirmative statement on the record regarding its reasons for increasing the defendant’s sentence upon any retrial. See Bennett v. State, 158 Ga. App. 421, 428 (9) (280 SE2d 429) (1981). We have previously determined that Pearce has no applicability in similar circumstances.

In Bennett, supra, the defendant withdrew his guilty plea before sentence was pronounced and was convicted at trial. The defendant maintained that the original sentence that would have been imposed prior to withdrawing his guilty plea was more lenient than the sentence he received after trial. Id. “The holding in Pearce addresses the issue of ‘constitutional limitations . . . upon the general power of a judge to impose upon reconviction a longer prison sentence than the defendant originally received.’ ” (Emphasis in original.) Id. at 428 (9). We determined that Pearce applied only “in the case where, after a successful attack on the original conviction and subsequent reconviction, a defendant receives a more severe sentence than was originally imposed.” (Emphasis in original.) Id. In the present case, as in Bennett, Williams’ sentence is not more severe than the imposition of a prior sentence, because no prior sentence was imposed. Therefore, we decline to extend the requirements of Pearce to the present situation.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


author: Johnson, Judge.

text:
    A97A1182.
    JONES v. THE STATE.
    (487 SE2d 618)
   Johnson, Judge.

A jury found James (“Jimmy”) Lee Jones guilty of attempting to murder his ex-wife. He appeals from the judgment entered on that verdict and the denial of his motion for new trial.

The following is a brief synopsis of the evidence presented at trial: Barbara Mace filed a divorce action against Jones, which he opposed. Before the divorce was final, one of Mace’s children from a prior marriage accused Jones of sexually molesting her. The Department of Family & Children Services investigated the allegations, and Jones was arrested and indicted on charges of child molestation and enticing a child for indecent purposes. The indictment was read to the jury. Jones was raped and beaten while he was in jail on those charges. According to testimony from several witnesses, Jones believed Mace had instigated the child molestation case, and he held her responsible for the violence done to him in prison and for his continuing legal problems. A woman with whom Jones had lived in Tennessee after his relationship with Mace ended testified that she overheard Jones trying to hire someone to kill Mace. When she found a hand-drawn map to Mace’s house, she reported it to police, but no arrest was made. Jones then moved to Savannah, where he became increasingly agitated at work, frequently berating Mace and talking about killing her or having her killed. Jones asked a co-worker, John Galletta, if he would kill Mace for him. Galletta testified that he thought Jones was joking and agreed to do it. When Jones provided him with a map to her house and showed him a gun and a silencer he was trying to make out of a lawn mower muffler, Galletta realized that Jones was serious. Galletta drove from Savannah to Mace’s workplace near Rome to warn her about the plan. Mace contacted local police who asked for assistance from the Georgia Bureau of Investigation. The GBI contacted Galletta who agreed to wear a body wire to record conversations with Jones about the plans to murder Mace. Galletta taped Jones talking about his difficulties in getting the money together to pay Galletta and problems making the silencer for the gun, but emphasizing his urgent desire to have Mace murdered. At one point on the tape, Jones tells Galletta: ‘Yeah I want it done. ... I don’t care if my damn kids are with her or not. I want it done.” When Jones told Galletta he was going out of town, Galletta and the GBI were concerned that Jones might try to kill Mace himself, and he was arrested.

1. In several related enumerations of error, Jones alleges the trial court erred in admitting the child molestation charges as similar transaction evidence. We agree.

As a preliminary matter, we note that no hearing was conducted as required by Uniform Superior Court Rule 31.3 (B) to determine the admissibility of the similar transaction evidence and that Jones made no objection to the trial court’s failure to conduct such a hearing. However, his failure to object to the lack of a hearing does not constitute a waiver or preclude our consideration of this issue on appeal. See Riddle v. State, 208 Ga. App. 8, 10-11 (1) (b) (430 SE2d 153) (1993).

“ ‘(E)vidence of an independent offense or act committed by the accused is highly and inherently prejudicial, raising as it does, an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or in a similar manner on another occasion. . . .’ Williams v. State, 261 Ga. 640 (2) (a) (409 SE2d 649) (1991). ... It must be established that the State wishes to introduce evidence of the independent offense for an appropriate purpose; that the defendant committed the independent act; and that the independent act and the act for which the accused is being tried have a ‘sufficient connection or similarity . . . that proof of the former tends to prove the latter.’ Id. [at (2) (b)].” Andrews v. State, 267 Ga. 473, 475 (2) (480 SE2d 29) (1997). The law does not require that in order to be admissible for a legitimate purpose as a similar transaction a crime be identical to the crime charged. In Faison v. State, 199 Ga. App. 447, 448-449 (405 SE2d 277) (1991), Judge (now Justice) Carley compiled examples of cases in which less than identical crimes were admitted as similar transactions: Evidence of aggravated assault was admissible in a murder case in Burden v. State, 250 Ga. 313, 314 (2) (297 SE2d 242) (1982); evidence of larceny or burglary was admissible in a robbery by force case in Jones v. State, 158 Ga. App. 585 (2) (281 SE2d 329) (1981); and evidence of assault was deemed admissible in a rape case in Jackson v. State, 157 Ga. App. 604, 605-606 (4) (278 SE2d 5) (1981). “[T]here can be a substantial variation of circumstances where there exists a logical connection between crimes which are essentially dissimilar. The issue of admissibility of extrinsic transactions has never been one of mere similarity. It is, rather, relevance to the issues in the trial of the case. Depending upon the purpose for which the extrinsic offense is offered, e.g., where similar transaction evidence is offered to prove identity, the state may be required to prove a high degree of similarity between relevant characteristics of the extrinsic offenses and the charged crimes, or it may only have the burden of showing a logical connection between crimes which are essentially dissimilar. . . . When similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity. Similar transaction evidence can be introduced to prove [motive] when there exists some logical connection between the similar transaction evidence and the charged offense so that the similar transaction evidence tends to establish the charged offense.” (Citations and punctuation omitted; emphasis in original.) Fields v. State, 223 Ga. App. 569, 571 (2) (479 SE2d 393) (1996). Here, however, even applying the lesser, “logical connection” standard of similarity, because the stated purpose for the introduction of the evidence is to prove motive, we see no logical connection between the crimes of child molestation and attempted murder and find that the prejudicial impact of the evidence outweighed its probative value. Treating the specific allegations of another, unrelated offense for which Jones was under indictment at the time of this trial as a similar transaction, both during the trial as evidence and in the charge to the jury, was error.

This is not to say that in order to establish motive the state could not have instructed their witnesses to testify that Jones had been arrested on some unspecified charge, or had trouble with the law generally, and that he believed Mace was responsible for those charges. While this evidence would also have introduced Jones’ character into evidence, it would have done so only incidentally and for a proper purpose. “While motive is not an essential element in the proof of the crime of [attempted murder], the State is entitled to present evidence to establish that there was a motive. Evidence which is relevant to an issue in a case is not rendered inadmissible by the fact that it incidentally puts the defendant’s character in issue.” (Citations and punctuation omitted.) Stephens v. State, 214 Ga. App. 183, 186 (5) (447 SE2d 26) (1994).

We next consider whether it was highly probable that the erroneous admission of the child molestation charges as similar transaction evidence contributed to the judgment, warranting a reversal of Jones’ conviction. See Johnson v. State, 238 Ga. 59, 60 (230 SE2d 869) (1976). This Court recognizes the inherent danger of speculating, after the fact, about the relative weight given to various evidence by the jury. Here, however, the evidence of Jones’ guilt, particularly the audio tape on which he is heard discussing the specific details of the planned murder, was overwhelming. Therefore, we conclude that the erroneous admission of the child molestation charges as similar transáction evidence was harmless beyond a reasonable doubt. See generally Shields v. State, 223 Ga. App. 169 (477 SE2d 342) (1996); compare Hardy v. State, 223 Ga. App. 597, 598 (1) (478 SE2d 423) (1996); and Higginbotham v. State, 207 Ga. App. 424, 427 (4) (428 SE2d 592) (1993).

2. Neither do we find the trial court erred in denying Jones’ motions for mistrial when one witness referred to him as a “sick pervert” and another referred to him as a “hateful” person. “Where prejudicial matters have been presented to the jury, the trial court, in its discretion, may determine whether a mistrial is required or whether the giving of cautionary instructions to the jury is an adequate remedial device. The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with.” (Citations and punctuation omitted.) Bess v. State, 207 Ga. App. 295, 296 (2) (427 SE2d 813) (1993). The trial judge gave curative instructions to the jury, directing them to disregard the unsolicited testimony in both instances in this case. After the reference to Jones as a “sick pervert” the trial judge polled the jury to ensure that each juror felt capable of dismissing that appellation from his or her mind. The trial judge did not abuse his discretion in deciding that cautionary instructions were sufficient in this case. See Mitchell v. State, 222 Ga. App. 866, 867-868 (2) (476 SE2d 639) (1996).

Decided May 28, 1997

Reconsideration denied June 6, 1997

Before Judge Cheatham.

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, for appellee.

3. In a related enumeration of error, Jones complains the trial court erred in failing to give curative instructions after denying his motion for mistrial made when Mace testified that Jones wanted to take naked pictures of her. Jones assumes that this statement also improperly placed his character into evidence. The denial of a motion for mistrial, even absent curative instructions, is not always error. “In the absence of a demonstration that a mistrial was essential to preservation of [Jones’] right to a fair trial, it is not an abuse of discretion to deny a motion for a mistrial even where no curative instructions were given.” (Citation and punctuation omitted.) Chezem v. State, 199 Ga. App. 869, 872 (4) (406 SE2d 522) (1991). Here, numerous motions for mistrial had been made, and the trial court had given curative instructions several times. The trial court did not abuse its discretion in denying the motion for mistrial without curative instructions in this instance.

4. We have examined Jones’ remaining enumerations of error and find them to be. without merit.

Judgment affirmed.

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


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    A97A0383.
    MENEFEE v. THE STATE.
    (487 SE2d 489)
   Beasley, Judge.

Menefee appeals his conviction of trafficking in cocaine (OCGA § 16-13-31 (a) (1)), dispensing and possessing with intent to distribute a controlled substance within 1,000 feet of a recreation center (OCGA § 16-13-32.5 (a)), possessing with intent to distribute a controlled substance within 1,000 feet of a housing project (OCGA § 16-13-32.5 (b)), and failing to obey a stop sign (OCGA § 40-6-20 (a)).

1. The first enumeration is that the court erred in denying a motion for mistrial based on Menefee’s character being improperly placed in issue when a State’s “witness inferred it wasn’t unusual to find [defendant] with a razor blade with cocaine on it.” An officer testified as to arresting defendant following a traffic stop. The arresting officer testified that immediately after the arrest, he took a razor blade, which appeared to have cocaine residue on it, from defendant’s pocket. The State asked: “Now, would it have been unusual to find a razor blade in his pocket?” The officer responded: “No, not in this particular incident.”

Defense counsel objected and moved for mistrial. The court sustained the objection based on the form of the question, and defendant declined curative instructions. The court denied the motion for mistrial and instructed the jury that the objection to the question was sustained.

OCGA § 24-9-20 (b) prohibits the introduction of evidence of general bad character or prior convictions, that is, evidence concerning the past conduct of the defendant. Menefee’s character was not placed in issue by the officer’s answer. The officer’s response was explicitly directed only to the conduct involved in the incident which formed the basis of the charges.

2. Menefee also challenges the sufficiency of the evidence concerning the offenses of dispensing and possessing with intent to distribute a controlled substance within 1,000 feet of a recreation center and possessing with intent to distribute a controlled substance within 1,000 feet of a housing project.

He asserts that he was entitled to a directed verdict of acquittal under OCGA § 17-9-1 because of the absence of “certified copies of appropriate documents.” He does not elaborate but points instead to the argument at trial on his motion. There he claimed in part that the State had to prove by documents or by testimony from the governing authority that the recreation center was located on real property which had been “dedicated and set apart by the governing authority . . . for use as a . . . recreation center” (the words of the statute). As to the housing project, he claimed in part that the State had to show that it was publicly owned or operated and that it was a statute-designated type of facility under the jurisdiction of a housing authority “pursuant to Chapter 3 of Title 8” of the Code. Subsection (e) of OCGA § 16-13-32.5 does not specify that these particular facts be incorporated on the statutory map, although that would be the most direct and comprehensive method of proving them. The absence of these facts on the city-certified map and the absence on the map of identification of the target properties render the map itself deficient to constitute the statutory “prima facie evidence of the location and boundaries of the area” on or within 1,000 feet of Code-designated property. The Code subsection expressly allows evidence other than a map which meets the statutory requirements. The question is whether the requisite facts can be proved by the testimony of police officers familiar with the area and expressly assigned to patrol public housing areas.

The map, which was admitted without objection, served as part of the evidence which established that Menefee possessed the cocaine in the prohibited areas. The officer knew the area well, as he was there “daily” as a member of a five-person unit created in 1993 through the local police department and the Marietta Housing Authority, with a federal grant from the Department of Housing & Urban Development. The unit’s duty was to patrol all high crime areas in the city as well as all public housing areas, particularly with respect to drug and gang-related activity. The officer patrolled this area regularly and described what it contained. He was familiar, as required by his official duties, with the housing authority properties and a place called the canteen, which he and another officer identified as the city-owned Elizabeth Porter Recreation Center. He pointed out on the map the location of the housing authority property, commonly known as Baptist Town, and the recreation center, and gave the address. The other officer identified the housing project as a City of Marietta Housing Authority housing project. This fits the definitions of OCGA § 8-3-3 (2) and (10) (A) (iii).

A yellow circle on the map, which the first officer testified was drawn by the city mapping department, showed an area of 1,000 feet radius from the place where the cocaine was found which encompassed both properties. The jury could measure this itself because the map’s distance reduction of 1" = 100' was shown on it.

The officers testified that Menefee possessed the cocaine and then discarded it well within the 1,000 feet. The other officer in the unit who was on the scene also testified about the location of the housing project and recreation center. He pointed to the recreation center as being 400'-450' from where the drugs thrown by defendant were retrieved and about 200' from the Lyman Homes Housing Project. The officer testified that even without the map he could gauge the distance “very, very easy [sic].”

This evidence is sufficient to prove the element at issue. It transcends the vague and inexact evidence presented by the State in Johnson v. State, 214 Ga. App. 77, 81 (2) (447 SE2d 74) (1994). There the agent could only say “ ‘we just knew that it was a — it was city — it was public — it was city owned’ ” and that right behind the park where the sale took place were “numerous ‘red brick buildings located around a common, grassy area.’ ” Id.

Menefee’s conviction is affirmed because, as in Washington v. State, 216 Ga. App. 352, 353 (2) (454 SE2d 214) (1995), there is evidence that at the relevant time defendant was within 1,000 feet of a public housing project and a public recreation center. There was no contradictory evidence.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., and Eldridge, J., concur. McMurray, P. J., Smith and Ruffin, JJ, dissent.

McMurray, Presiding Judge,

dissenting.

While I agree with Division 1 of the majority opinion, and with the affirmance of defendant’s conviction of trafficking in cocaine and of failing to obey a stop sign, I cannot join the majority in Division 2 or in the affirmance of defendant’s convictions for dispensing and possessing with intent to distribute a controlled substance within 1,000 feet of a recreation center and possessing with intent to distribute a controlled substance within 1,000 feet of a housing project. Therefore, I respectfully dissent.

The evidence is clear that defendant possessed cocaine and then discarded it within 1,000 feet of places identified by law enforcement officers as a public housing project and as a recreation center. However, the testimony of the officers concerning the identity of that real property does not provide probative evidence but was necessarily hearsay evidence lacking any probative value. Johnson v. State, 214 Ga. App. 77, 79 (2), 80-81 (447 SE2d 74). While the law enforcement officers in the case sub judice may have provided more specific information concerning their impressions as to the identity of the real property, this does not alter the basic character of the officers’ testimony. Hearsay does not cease to be such simply because there is more of it. There is no basis in law or fact for the majority’s conclusion that Johnson may be distinguished.

Nor was the identity of the real property established by any other source. As conceded by the majority, the map introduced into evidence did not provide evidence of the location or boundaries of the Code-designated properties and thus was deficient to provide prima facie evidence on this issue as allowed under OCGA § 16-13-32.5 (e). And finally, OCGA § 24-3-13 does not apply in this case since there was no evidence of the boundaries of the designated properties by proof of ancient tradition and reputation in the community. See McAfee v. Newberry, 144 Ga. 473, 474 (87 SE 392).

The State failed to provide any proof that the real property identified by the law enforcement officers is of the type designated in OCGA § 16-13-32.5 (a) and (b). Therefore, I would hold that the trial court erred in denying defendant’s motion for a directed verdict as to the offense of dispensing and possessing with intent to distribute a controlled substance within 1,000 feet of a recreation center and possessing with intent to distribute a controlled substance within 1,000 feet of a housing project.

Decided June 6, 1997.

Before Judge Kreeger.

Patrick G. Longhi, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Ann B. Harris, Assistant District Attorneys, for appellee.

I am authorized to state that Judge Smith and Judge Ruffin join in this- dissent.