author: Pope, Judge.

text:
    75929.
    CORNISH v. THE STATE.
    (369 SE2d 515)
   Pope, Judge.

Defendant Cornish was employed as a manager of a Tenneco Oil Company gasoline and convenience store. He was prosecuted and convicted of theft by taking $2,487 in cash belonging to the store which was supposed to have been delivered to a messenger of Wells Fargo Armored Service Corporation and deposited with the bank. Defendant’s sole ground for appeal is that the evidence presented at trial was insufficient to support his conviction. We agree.

Defendant’s supervisors testified it was the duty of the store manager to assure there was no more than $200 in cash in the cash register at anytime. Any excess cash was to be deposited into an envelope color-coded for that particular day and dropped into a chute into the floor safe. The work day was divided into two shifts, from 6:00 a.m. until 2:00 p.m. and from 2:00 p.m. until the store closed at midnight. Each day an activity report was to be completed showing all sales transactions for the day and including a figure for total cash receipts to be deposited with the bank. At the time the activity report was completed, the manager was to prepare a deposit slip for that day’s cash receipts. The period covered by the daily activity report ran from 2:00 p.m. one day until 2:00 p.m. the following day. The Wells Fargo service would pick up the cash to be deposited with the bank anytime between 7:00 a.m. and 3:00 p.m. Thus, the Wells Fargo pick-up would cover the cash from the activity report for the previous activity day.

When the Wells Fargo messenger arrived, the store employee would lock the door of the store. Two keys were required to open the floor safe — one supplied by the store manager and one supplied by the Wells Fargo messenger. Once the safe was opened, the manager was to place all cash dropped into the safe from the previous day (in color-coded envelopes) with the bank deposit slip into a cloth bag, seal the bag with a metal crimper and deliver the bag to the Wells Fargo messenger. The safe, still containing cash envelopes from the current day’s activity, would be locked back by use of both keys. Defendant’s supervisor admitted he had seen a Wells Fargo messenger simply hand his key to the store manager to open and close the safe, so it might be possible for the store manager to fail to relock that portion of the safe which required a key from Wells Fargo. In that event, the safe could be reopened with only one key.

The evidence showed defendant prepared the daily activity report for the store day commencing 2:00 p.m. December 22, 1986 and ending 2:00 p.m. December 23, 1986. That report reflected cash in the amount of $2,487 to be deposited with the bank. According to regular procedure, that cash was to have been picked up by Wells Fargo on December 24. Wells Fargo employees testified they arrived at the store on December 24 and were told by the store manager that he had no deposit to make for that day because he had no key to the safe. Wells Fargo records show no pick-up was made at the store on December 24. When subsequent bank records reflected no deposit was made on December 24, defendant’s supervisor questioned him. According to the supervisor’s testimony, defendant told him he had prepared a deposit slip for the 24th and had delivered the cash to the Wells Fargo messenger. No deposit slip was ever located.

The evidence shows defendant was the only employee on duty at the store during the 6:00 a.m. to 2:00 p.m. shift on December 24 and when the Wells Fargo messenger arrived at 2:08 p.m. However, testimony revealed both the manager (defendant) and assistant manager had a key to the safe. No evidence was presented concerning who opened the safe the previous day or what employee worked at the store from the time the pick-up was made the previous day until the time the store closed at midnight. Thus, it was not shown that defendant had exclusive control over the safe during the critical period.

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. The defendant in this case did not testify and presented no evidence. The state argues the judgment should not be reversed because the defendant “did not exclude every reasonable hypothesis other than that of his own guilt.” We assume the state meant to argue the defendant failed to establish any other reasonable hypothesis for the loss of the money save that of his own guilt. The burden of proof in a criminal case is on the state to establish the defendant’s guilt beyond a reasonable doubt. OCGA § 24-4-5. Thus, the burden to present evidence excluding every other reasonable hypothesis save that of guilt is upon the state. In this case, the defendant did not need to establish an alternative hypothesis for one was already established by the evidence presented by the state.

In support of its argument that the conviction should be upheld for defendant’s failure to present evidence of his innocence, the state cites to Prescott v. State, 164 Ga. App. 671 (297 SE2d 362) (1982). In Prescott this court upheld a conviction for possession of drugs found in the pocket of a coat hanging in a closet because the defendant “made no affirmative showing . . . that anyone other than himself and his wife had had actual access to the bedroom or its closet during several days or weeks prior to the discovery of the pills.” Id. at 672. However, in Prescott there was testimony that the bedroom’s principal alternative occupant had been out of town for at least three weeks before the date in question. Therefore, the evidence eliminated the only other individual reasonably having access to the closet. Because the defendant failed to make an affirmative showing to rebut the state’s prima facie case that no other person had actual access to the closet, the evidence thus excluded every other reasonable hypothesis save that of the defendant’s guilt. In the case now before us, the evidence showed both the manager and assistant manager had a key to the safe. Unlike the factual situation in Prescott, the state did not present evidence which would eliminate the possibility that some other person had access to the safe during the critical period before the money was discovered missing.

The facts of the case now before us are similar to those presented in Wood v. State, 156 Ga. App. 810 (275 SE2d 694) (1980), in which the conviction of a nurse for taking narcotics from a locked hospital cart was reversed because the evidence showed the master key to that cart was accessible to a number of other persons in the hospital at the time the loss occurred. In Wood we found the evidence was insufficient to exclude the reasonable hypothesis that someone other than the defendant was responsible for the disappearance of the drugs. Likewise, in this case the state failed to exclude the reasonable hypothesis that someone other than defendant was responsible for the loss of the employer’s cash. The burden was upon the state to eliminate such a reasonable hypothesis. The burden was not upon the defendant to present evidence in support of an alternative reasonable hypothesis which was already raised by the state’s evidence.

Decided May 13, 1988.

John O. Ellis, Jr., for appellant.

Robert E. Wilson, District Attorney, Helen A. Pryles, J. Michael McDaniel, Assistant District Attorneys, for appellee.

Defendant concedes that the evidence may be sufficient to hold him civilly liable for the loss of his employer’s funds. While the circumstantial evidence raises a suspicion of defendant’s guilt, it was not sufficient to exclude every other reasonable hypothesis. See Hall v. State, 155 Ga. App. 211 (270 SE2d 377) (1980).

Judgment reversed.

McMurray, P. J., and Benham, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    75938.
    PAGE et al. v. GUIN et al.
    (369 SE2d 517)
   Pope, Judge.

Appellants Raymond and Gladys Page applied to the probate court, pursuant to OCGA § 44-4-2, for a processioning of the boundary line between their property and that owned by appellees, the Guins. The county processioners hired a surveyor and entered a return of processioners which included a plat which marked the boundary line in a manner which crossed fences erected by the Guins and extended over into a field which had been cultivated by the Guins. The Guins filed a protest to the processioning and the matter was submitted for bench trial before the superior court judge. At trial, conflicting testimony was presented concerning whether the fences erected by the Guins and their predecessors in interest had ever been moved to the east so as to encroach upon the property owned by the Pages and their predecessors in interest. On January 31,1986 the trial court issued an order finding, inter alia, that the lands claimed by the Guins had been under fence for more than seven years; that the processioners ignored the Guins’ actual possession of the land under fence; and, therefore, rejecting the return of the processioners. The court concluded that the correct boundary line would be one “which respects [the Guins’] fenced land.” There was evidence that the fences in question were not straight but were curved. Therefore, the court’s order established that the true boundary line shall commence at the uncontested southern-most corner between the two properties and should run in a northwesterly direction in a straight line to the eastern-most point of the first curve in the fence; from there in a straight line to the next eastern-most point, etc., to a point where said line intersects with the property line of an adjoining land owner not a party to this action, as shown on the return of the processioners.

On March 3, 1986 the Pages filed a timely motion for new trial, setting forth the general grounds. A rule nisi was entered setting April 10, 1986 as the hearing date for said motion. On the date designated for hearing, the transcript had not yet been filed. No extension for filing the transcript was ever sought by the Pages, the moving parties. The record shows the transcript was filed by the court reporter on July 24, 1986. On June 5, 1987 the Pages filed a motion for injunctive relief seeking an order barring the Guins from entering upon the disputed land. However, no further request for a hearing date or any other action in pursuance of the motion for new trial was taken. Finally, on September 1, 1987 the trial court entered an order denying the Pages motion for new trial. That order included a finding that the Pages had abandoned their right to a hearing on the motion for new trial by failure to pursue that motion. This appeal is taken from the judgment of the court on the processioning action and the court’s denial of the Pages’ motion for new trial.

1. The Pages’ first two enumerations of error argue the trial court erred in denying their motion for new trial without first conducting a hearing on the motion. “We are well aware of a movant’s right to a hearing upon a motion for new trial. However, we are also cognizant of the fact that a party, especially in civil proceedings, may waive or abandon that right.” Peyton v. Peyton, 236 Ga. 119, 120 (223 SE2d 96) (1976). In Peyton as in the case at hand, the motion for new trial could not be heard on the date originally set because the transcript of the trial was not complete on that date. The movant for new trial failed to move the court for a new date for hearing even after the opposing party had moved to dismiss the motion for new trial. In that case, it was held the trial court was justified in ruling on the merits of the motion for new trial solely upon the briefs. In the case at hand, over one year from the date the motion for new trial was originally supposed to have been heard, movants filed a separate motion for injunctive relief and requested a hearing on the motion for injunctive relief. Although the motion for injunctive relief was based in part upon the pending motion for new trial, no further effort was made to set a date for hearing the motion for new trial. Where the movant on a motion for new trial allows the date for hearing the motion to pass without any further action on his part, not even requesting an extension of time for the filing of the transcript, the motion for new trial must be treated as having been abandoned. Moody v. State, 14 Ga. App. 523 (2) (81 SE 588) (1914). The facts of this case are distinguishable from those found in Reid v. Bryant, 100 Ga. App. 105 (1) (110 SE2d 571) (1959), because there the order setting the date for an oral hearing contained broad permissive language permitting the motion for new trial to be heard at anytime if, for any reason, it could not be heard at the time and place fixed by the order. Moreover, in that case, prior to the date on which the motion was originally set for hearing, the parties consented to an indefinite continuance of the hearing. In the case now before us, movant made no effort to seek a continuance of the hearing for over one year. Therefore, the trial court was justified in concluding the Pages had abandoned their right for an oral hearing on the motion and was justified in deciding the motion on the briefs originally submitted.

2. The trial court did not err in denying the motion for new trial. The record shows there was conflicting testimony on the issue of how long the fences in question had been in place and whether they had ever been moved to encroach upon the Pages’ land. However, it was the task of the superior court, as the trier of fact, to arrive at a verdict after weighing the conflicting evidence. On appellate review, this court may reverse the decision of the lower court to deny a new trial only if there was no evidence to support the verdict. Burnet v. Bazemore, 122 Ga. App. 73 (176 SE2d 184) (1970) (on motion for rehearing). Because there was evidence to support the verdict, we may not reverse the decision to deny a new trial.

3. The Pages’ claim the trial court erred in not granting or otherwise ruling on their motion to dismiss the Guins’ protest to the processioners return because the protest failed to specify the true lines claimed by them, as required by OCGA § 44-4-9. The protest in this case did set forth what the true line was alleged to be, namely, that line shown on an earlier plat recorded in 1911. Therefore, the protest was not legally insufficient.

4. Finally, the Pages argue the judgment rejecting the return of the processioners and establishing another line as the true property line should be reversed for lack of evidence to support the judgment and because the judgment is too vague to be enforceable. “ ‘Under the law of processioning as it exists in this State, established lines, and not new ones, are to be fixed and determined; the location of lines, not as they ought to be, but as they actually exist, is to be sought; and where one has been in actual possession of land for more than seven years, under a claim of right, such claim shall be respected by the processioners, even though the land so possessed should be found to be within the original line of the opposing party.’ [Cit.]” Osborne v. Thompson, 154 Ga. App. 215 (1) (267 SE2d 852) (1980). See also OCGA § 44-4-7. Pursuant to the statutory rules governing the processioning of property lines, natural markers and landmarks and established marked lines appearing on the property take precedence over strict mathematical courses and distances shown on recorded plats. OCGA § 44-4-5. “General reputation in the neighborhood shall be evidence as to ancient landmarks of more than 30 years’ standing.” OCGA § 44-4-6.

The record in the case now before us suggests that ancient markers recognized by the coterminous landowners for well over thirty years may have deviated from the courses and distances set forth on the recorded plats. Additionally, testimony was presented that the Guins, protestants to the processioning, had maintained fences which crossed the recorded property lines and had cultivated land up to the fences thereby evidencing a claim of right to these lands for more than seven years. In this case, the processioners staked out the property line in an apparent attempt to establish the line where it ought to have been in strict compliance with titles and plats. In doing so, the processioners ignored long-established markers and the Guins’ actual possession of land under a claim of right as evidenced by their fences and cultivation of land. Thus, the trial court did not err in finding against the return of the processioners.

The issue on the trial of a protest to processioning is not confined to approving or disapproving the line established by the processioners but, if the evidence warrants, a verdict may be entered in favor of the line established by the protestants. Rogers v. Beavers, 76 Ga. App. 16 (1) (45 SE2d 74) (1947); Reynolds v. Kinsey, 50 Ga. App. 385 (4) (178 SE 200) (1935). However, the court in this case approved neither the plat submitted by the processioners nor that submitted by the protestants. Instead, the order attempted to describe what it found, after consideration of the evidence, to be the true line. The original property line ran from an uncontested and established southern-most point identified in the processioners return and proceeded in a generally northwesterly direction to its intersection with the southern property boundary of a third coterminous landowner not a party to this action. The evidence showed the Guins (protestants) and their predecessors in interest had erected fences which curved back and forth across this line at several points. The trial judge found the true line to run in a series of straight lines from the uncontested southernmost point to the eastern-most curves along these fences.

While the line described by the court’s order is supported by the evidence adduced at trial, it is not sufficiently specific to serve as a processioning line. By statute, in a processioning proceeding a plat of the true line is to be delivered to the applicant and filed with the probate court. Both the certified plat and the line marked along the actual boundary shall be admissible in evidence in all future boundary disputes. OCGA §§ 44-4-3 and 44-4-4. The findings of the trial court in this case contain an accurate description of the true property line and are supported by the evidence. However, the order as it now stands is not, of itself, sufficient to serve as a return of processioning. The order recognized these limitations and permitted the record to remain open for thirty days for the parties to submit a proposed supplemental order more accurately describing and reflecting the line described in the order itself. Where the processioners have not actually run the disputed line or the return is otherwise legally insufficient, the court may not order the processioners to run another survey. Rawls v. Nowell, 133 Ga. 874 (2) (67 SE 187) (1910). In this case the return of the processioners was legally sufficient even though it was rejected as inaccurate. The order permitting either party to submit a plat reflecting the findings of the court was appropriate under the circumstances and promotes judicial economy and efficiency. As it turns out, neither party submitted a proposed supplemental order before the motion for rehearing was filed within thirty days from the date the order was entered.

Decided May 13, 1988.

David B. Pittman, for appellants.

Ben P. Jackson, Jr., for appellees.

We remand this case to the lower court to permit either party, within thirty days of remittitur, to present a proposed supplemental order including a plat which would reflect the description contained within the court’s order. Without such a plat, the order will serve merely as a rejection of the return of the processioners though the judgment will, of course, serve as the law of the case concerning the court’s findings of fact. However, if either party wishes the judgment to serve as a certified survey as provided in OCGA § 44-4-3, that party may respond to the court’s request and submit for the court’s approval a surveyor’s plat conforming to the findings of fact contained within the judgment.

Judgment affirmed and case remanded with instructions.

McMurray, P. J., and Benham, J., concur.


author: Carley, Judge.

text:
    76072.
    ANDERSON v. CITY OF ALPHARETTA.
    (369 SE2d 521)
   Carley, Judge.

Appellant was tried in the Municipal Court of the City of Alpharetta on a charge of “failure to yield right-of-way.” See OCGA § 40-13-21. Appellant was found guilty and, pursuant to OCGA § 40-13-28, she appealed her conviction to the Superior Court of Fulton County. Following a hearing, the superior court dismissed appellant’s appeal. Appellant brings this direct appeal from the order of the superior court dismissing her appeal from the municipal court.

The threshold issue is whether this court has jurisdiction over appellant’s appeal. OCGA § 5-6-35 (a) (1) provides that appeals to this court from decisions of the superior court reviewing the decisions of lower courts “by certiorari or de novo proceedings” are discretionary. Appellant’s appeal to the superior court was clearly not taken by certiorari. If, however, appellant’s appeal was a “de novo proceeding,” her appeal to this court must be dismissed for failure to comply with the discretionary appeal provisions of OCGA § 5-6-35.

OCGA § 40-13-28, as amended in 1986, provides, in pertinent part: “Any defendant convicted under this article shall have the right of appeal to the superior court. The provisions of Code Sections 5-3-29 and 5-3-30 shall not apply to appeals under this Code section. Otherwise, the appeal shall be entered as appeals are entered from the probate court to the superior court. . . . The appeal to the superior court shall not be a de novo investigation before a jury but shall be on the record of the hearing as certified by the judge of that court who presided at the hearing below.” Thus, OCGA § 40-13-28, as amended, provides that, with but two procedural exceptions, appeals from traffic convictions in municipal courts are to be taken to the superior courts in the same manner as appeals are taken from the probate courts. The two procedural exceptions are that OCGA § 5-3-29 and OCGA § 5-3-30 are inapplicable to such an appeal. Those two provisions provide that appeals from probate courts are de novo before a jury. Accordingly, appellant’s appeal to the superior court clearly cannot be considered as a de novo proceeding before a jury, as would otherwise be true with an appeal taken from a probate court. This is not only implicitly clear from the stated inapplicability of OCGA §§ 5-3-29 and 5-3-30, it is also made explicitly clear from the statutory language of OCGA § 40-13-28 that “[t]he appeal to the superior court shall not be a de novo investigation before a jury. . . .” Since the applicable statutory provision clearly establishes that the appeal is not de novo before a jury, the issue becomes whether the elimination of the jury feature has the added effect of removing the appeal entirely from the concept of a “de novo proceeding” as employed in OCGA § 5-6-35 (a) (1).

Decided May 13, 1988.

Michael E. Bergin, for appellant.

Robert A. Harris, Solicitor, for appellee.

OCGA § 40-13-28, having eliminated the jury feature of an appeal to the superior court, then provides that the appeal “shall be on the record of the hearing as certified by the judge of that court who presided at the hearing below.” Thus, it is the superior court itself, rather than a jury, which is charged with the fact-finding responsibility. Rather than rehearing the evidence, the superior court conducts a review of the record of the lower court hearing, and, after conducting such a review, the superior court, as the trior of fact, makes its own determination as to guilt. Thus, the superior court does make a de novo finding as to guilt vel non, in much the same manner as the Full Board of Workers’ Compensation reviews the awards of administrative law judges, the obvious difference being that the superior court, unlike the Full Board, is not authorized to rehear the actual evidence. The superior court’s lack of authority to rehear the evidence in connection with an appeal under OCGA § 40-13-28 would, perhaps, show that the appeal is not a de novo “investigation.” It would not, however, show that the appeal is not a de novo “proceeding.” The 1986 amendment to OCGA § 40-13-28, therefore, had the effect of changing the applicable factfinder and of limiting the evidentiary scope of an appeal from a traffic conviction in a municipal court, but .it did not have the effect of changing the de novo nature of the appeal.

Accordingly, we hold that the appeal that is created by OCGA § 40-13-28 is a “de novo proceeding,” whereby the superior court reviews the certified record below and makes a new determination as to guilt or innocence. It follows that we have no jurisdiction over appellant’s appeal. “Under OCGA § 5-6-35 [(cit.)] ‘(a) Appeals in the following cases shall be taken as provided in this Code section: (1) Appeals from decisions of the superior courts reviewing decisions of . . . lower courts by certiorari or de novo proceedings. . . .’ Thus the instant case should have been brought under the provisions of the code section pertaining to discretionary appeals and the failure to do so subjects it to dismissal. [Cit.]” (Emphasis supplied.) Wimbish v. State, 166 Ga. App. 223 (303 SE2d 766) (1983).

Appeal dismissed.

Deen, P. J., and Sognier, J., concur.


text:
    76227.
    HILL v. THE STATE.
    (369 SE2d 790)
   Pope, Judge.

James Hill brings this appeal from his conviction and sentence of criminal trespass, theft by taking, burglary, aggravated assault, aggravated sodomy and simple assault. Held:

1. Defendant’s first enumeration cites as error the trial court’s not requiring the State, upon written request, to turn over the criminal records of its witnesses, excluding law enforcement officers. This information, commonly known as “rap sheets,” was not in the State’s possession, but defendant asserts that the State had an affirmative obligation to research and provide such information. “There is no affirmative obligation on the prosecution to seek out information for the defense, although it might be more easily accessible to the prosecution, Hines v. State, 249 Ga. 257 [(1)] (290 SE2d 911) (1982), [aff’g 160 Ga. App. 546 (1) (287 SE2d 584) (1981), but rev’g on other grounds,] and there is no error.” Pitts v. State, 253 Ga. 461 (1) (321 SE2d 708) (1984). See Williams v. State, 251 Ga. 749 (7) (312 SE2d 40) (1983).

2. Defendant next enumerates as error the trial court’s failure to require the jury to engage in further deliberations after one juror twice gave negative answers during the polling after the verdict. The record shows the following: “THE COURT: . . . Mrs. Wright, [w]as this your verdict? MRS. WRIGHT: Well, yes. THE COURT: Well, yes or no? MRS. WRIGHT: Yes. THE COURT: Well is this your verdict? MRS. WRIGHT: Yes. THE COURT: Do you now agree to it? You do not agree to the verdict? MRS. WRIGHT: No, I don’t disagree. THE COURT: I’m sorry? MRS. WRIGHT: No, I don’t disagree. THE COURT: I’m sorry? MRS. WRIGHT: I don’t disagree. THE COURT: I’m sorry. I’ll ask you to please remain standing. I’ll ask you the questions again. You have heard the verdict as published by the foreman and by the District Attorney? MRS. WRIGHT: Yes. THE COURT: And have you reviewed the verdict? MRS. WRIGHT: Yes. THE COURT: And did you agree to it in the jury room? MRS. WRIGHT: Yes. THE COURT: Was it your verdict? MRS. WRIGHT: Yes. THE COURT: Is it now your verdict? MRS. WRIGHT: No, wait. THE COURT: Well, ma’am, you see the questions are — the verdict has to be unanimous, which means it has to be agreed upon by all 12 of you, and that’s what the purpose of this poll is. The defense has requested a poll of the jury, so it’s my responsibility to poll you as the jury. If it’s your verdict and if you are a part of a unanimous verdict, then you must agree to it, so your answers are somewhat conflicting. MRS. WRIGHT: The last one should be yes. THE COURT: Okay. So let me ask you, once again, please, and I’m not trying to put any pressure or words in your mouth but I’ve got to find out honest answers to these questions. Mr. Hill has been according to the verdict returned in court found guilty in Counts One and Two of criminal trespass and Counts Three through Seven he has been found guilty as charged and in Count Eight he has been found guilty of simple assault. Now, was that your verdict in the jury room? MRS. WRIGHT: Yes. THE COURT: Did you agree to it? MRS. WRIGHT: Yes. THE COURT: Do you now agree to it? MRS. WRIGHT: Yes.”

Following the poll defendant objected that “Mrs. Wright who twice said no may have misunderstood but then, again, she may have been led to change that.” The trial court again interrogated the juror. “THE COURT: All right. Mrs. Wright, first of all, please understand that this is not an attempt to embarrass you or single you out. Okay? The Charge of the Court was that each juror must consider the case and make up his own mind with an eye towards reaching the verdict, but that any verdict that’s rendered must be your personal, individual decision as a part of the jury. I recognize that there’s give and take in the jury room, there’s discussion back and forth and there are some people that feel strongly one way perhaps, some another way and some are somewhere in the middle, and please be assured that the Court will make certain that there is no coercion or humiliation nor anything else lodged at you or any other juror in connection with service as a juror. But . . . I’ll ask you once more simply because there seemed to be some confusion. Did you understand the Court’s charge that the jury was to deliberate and to try to reach a unanimous verdict? MRS. WRIGHT: Yes. THE COURT: And in your opinion has this jury done so? MRS. WRIGHT: Yes. THE COURT: And are you a part of that verdict? MRS. WRIGHT: Yes. THE COURT: Okay. So that verdict was your verdict and I don’t mean necessarily during the course of the discussions but I mean once the jury reached a verdict, was that your verdict? MRS. WRIGHT: Yes. THE COURT: Okay. Did you agree to it? MRS. WRIGHT: Yes. THE COURT: And do you now agree to it? MRS. WRIGHT: Yes. THE COURT: Okay. I’m as satisfied as I can be that this is a valid, unanimous verdict and I appreciate it, Mrs. Wright.”

“We find no error in the trial court’s efforts to clarify and elaborate on its questions during the poll of the jury in this case. Furthermore, [the juror] clearly agreed to the verdict, and even reluctant agreement is sufficient. The State must remove reasonable doubts from the jurors’ minds; it is not required to erase every question. The record reveals nothing to show that the twelve jurors did not unanimously find [defendant] guilty beyond a reasonable doubt. These circumstances disclose no error in the trial court’s receiving the verdict. The holding in United States v. Edwards, 469 F2d 1362 (II) (5th Cir. 1972), does not require a different result.” (Citations and punctuation omitted.) Scruggs v. State, 181 Ga. App. 55, 56 (351 SE2d 256) (1986). We find nothing in the dialogue between the court and the juror, Mrs. Wright, to warrant defendant’s assertion that the remaining jurors’ responses were “chilled” thereby.

Decided May 13, 1988.

Hurl R. Taylor, Jr., for appellant.

Robert E. Wilson, District Attorney, Nelly F. Withers, Assistant District Attorney, for appellee.

3. Defendant also assigns error to the trial court’s allowing the prosecutor to “read” to the jury during closing argument, which, he asserts, amounted to the forbidden act of “reading law” to the jury. Our review of the pertinent portions of the record discloses no objection in this regard and also discloses no evidence that the prosecutor engaged in “the ancient ritual of ‘reading law’ to the court.” Conklin v. State, 254 Ga. 558, 569 (331 SE2d 532), cert. den., 474 U. S. 1038 (1985), reh. den., 475 U. S. 1040 (1986). Rather, the prosecutor’s argument related to the charges of the indictment and the facts applicable thereto and the statutory burden upon the State to prove its case. The prosecutor also related in general terms the applicable statutory law, noting that the court would fully charge the jury as appropriate. “Although the practice of ‘reading law’ to the court has been abolished in criminal cases, counsel have every right to refer to applicable law during closing argument (i.e., law that the court is going to give in charge).” (Citations and punctuation omitted.) Boyce v. State, 184 Ga. App. 578, 580 (362 SE2d 229) (1987), aff'd 258 Ga. 171 (366 SE2d 684) (1988).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    76370.
    THOMPSON v. THE STATE.
    (369 SE2d 523)
   Carley, Judge.

Appellant was indicted for the offense of child molestation. The State filed a pre-trial motion in limine, seeking to preclude the introduction at trial of any evidence concerning sexual contact between the victim and anyone other than appellant. The trial court granted the State’s motion. At trial, an expert witness for the State testified that, on November 17, 1986, the victim had made a report which was to the effect that no one other than appellant had ever molested her. See OCGA §§ 24-3-4; 24-3-16. The case was submitted to the jury and a verdict of guilty was returned. Appellant appeals from the judgment of conviction and sentence that was entered on the jury’s verdict.

Appellant’s sole enumeration is that the trial court erred in granting the State’s motion in limine. Appellant urges that, by the grant of the State’s motion in limine, he was erroneously precluded from introducing impeaching evidence which would show that the victim had, in fact, made reports of sexual abuse committed upon her by someone other than appellant. The State contends any such excluded evidence would concern an inconsistency as to an irrelevant matter and that it would not, therefore, be admissible as impeaching evidence. “The past sexual experience of a child in a case such as this is irrelevant to the issue of whether molestation was committed by the defendant on trial. [Cit.]” Chastain v. State, 180 Ga. App. 312-313 (2) (349 SE2d 6) (1986), aff’d 257 Ga. 54 (354 SE2d 421) (1987). See also Thomas v. State, 168 Ga. App. 587 (1) (309 SE2d 881) (1983). “[A] witness may not be impeached by contradictory statements previously made by him as to immaterial matters not relevant to his testimony and to the case. [Cits.]” Green v. State, 138 Ga. App. 48 (1) (225 SE2d 495) (1976). Appellant urges, however, that the excluded evidence did not relate to the child’s actual sexual experiences with others, but only to her inconsistent report concerning such experiences and that the excluded evidence was, therefore, admissible as impeaching of her credibility.

Assuming, without deciding, that evidence of the victim’s accusation against another could be said to relate to a material matter relevant to the case, such evidence would nevertheless be inadmissible for purposes of impeachment unless it was also shown to be a prior inconsistent report to that wherein she had alleged appellant to be her only molester. To the extent that appellant undertook to make any proffer of the excluded evidence, that proffer showed only that the victim’s report of molestation by another had been made in January of 1987. This was some months after November 17, 1986, the date she purportedly identified appellant as her only molester. A subsequent report by the victim of molestation by another is neither prior to nor necessarily inconsistent with her earlier report that appellant was her only molester. If, between November 17, 1986 and January of 1987, the victim had been molested by another, then her subsequent report was in no way inconsistent with the prior report attributed to her.

If the victim had made a pre-November 17, 1986 report of molestation by others, it would be necessary for appellant to make a proffer of that evidence in order to secure a review of the trial court’s exclusion of it. “Where the error alleged is that certain evidence has been wrongfully excluded, the rule is well settled that there must have been a proffer or offer of a definite sort that both courts can know whether the witnesses really exist and that the evidence really exists. [Cit.] The record in the instant case does not show that such witnesses were proffered, or if when proffered the court refused to permit the witnesses to testify, or if proffered what questions were asked or what answers were expected from the witnesses. In the absence of this information, the assignment of error is so incomplete as to preclude its consideration by this court.” Byrd v. State, 78 Ga. App. 824, 831-832 (3) (52 SE2d 330) (1949). See also Robinson v. State, 86 Ga. App. 375, 379 (3) (71 SE2d 677) (1952). It follows that appellant’s enumeration as to the erroneous exclusion of non-proffered evidence presents nothing for review.

Decided May 13, 1988.

John R. Thigpen, Sr., for appellant.

Harry D. Dixon, Jr., District Attorney, Margaret M. Edwards, Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Sognier, J., concur.


author: Birdsong, Chief Judge.

text:
    75920.
    DURDEN v. THE STATE.
    (369 SE2d 764)
   Birdsong, Chief Judge.

This is an appeal of a conviction for two counts of driving under the influence in violation of OCGA § 40-6-391. The main ground of appeal involves expert testimony as to appellant’s blood and urine samples and the evidence of marijuana usage shown thereby. Held:

1. The trial court erred in admitting evidence of, and allowing the forensic expert to testify to, the presence of 180 to 200 nanograms of THC metabolites per milliliter of blood and urine sampled, and as to the degree, quantity, and effect of marijuana usage indicated or proved by these particular test results.

The appellant under OCGA § 17-7-211 duly requested copies of all written scientific reports which would be introduced into evidence. The State submitted to him a copy of a crime lab report which states, in pertinent part, simply: “Results: Immunoassay techniques indicate the presence of tetra-hydrocannabinol (marijuana) and/or metabolites in the blood specimen. Immunoassay techniques indicate the presence of tetra-hydrocannabinol (marijuana) and/or metabolites in the urine specimen.”

At trial, the forensic witness over objection was permitted to testify at length as to her test results not stated in the crime lab report, which were that appellant’s blood and urine samples contained approximately 180-200 nanograms of THC per milliliter. The prosecutor’s direct questions were put this way: “Q. What were the results of your tests? A. I found marijuana metabolites in the blood sample and the urine sample. Q. As part of the way you test samples and the way that you indicate results, do you have a scale by which you quantify the amount of marijuana metabolites found in the system? A. Yes, sir. We can give a rough estimate. In order for us to issue a statement on the report that marijuana metabolites were found, there has to be at least 25 nanograms per milliliter present. We run a set of standards along with the blood samples. We run a blank. One spiked at 10 nanograms per mil, 25, 50, 100 and 250. Referring back to my notes on this case, this particular sample had between 100 and 250, approximately 200 mils. Q. Are you able to quantify that specifically? A. You know, my best guess would be approximately 200. 180 to 200 milligrams per mil. Q. Is that a significant amount? A. Yes, sir.”

The defense objected strenuously and stated it had no objection if the State were only to admit that THC metabolites were found, as stated in the crime lab report, but that the State should not be allowed to quantify that stated result by giving the expert testimony just described. The trial court allowed the evidence, because the expert testified that these test results were written only in her “working notes” and thus were never written in a report which would have been required to be submitted to the defendant.

Her direct examination continued: “Q. Ms. Callahan, I believe we were at the point where you were going to tell me the results of the tests that you performed on the blood and urine samples. A. Yes, sir. Marijuana metabolites were found in the blood specimen and the urine specimen. Q. Did you take steps to insure these results were accurate? A.Yes, sir. Q. What steps did you take? A. Any time we do marijuana testing we run a set of standards along with it. We run a blank blood, one that is spiked with 25 nanograms per milliliter, one that is spiked at 10 nanograms per milliliter, 50 nanograms per milliliter, 100 nanograms and 250 nanograms per milliliter. In order for us to issue a statement on a report, we feel there needs to be at least 25 nanograms per milliliter there . Q. You said that your . . . quantitative scale is from 25 nanograms per milliliter to 250 nanograms? A. Actually, zero to 250. Q. Was the sample, the blood sample of Mr. Durden’s quantified on this scale? A. Yes, sir. I went back and looked in my notes and there was approximately 180 to 200 nanograms per milliliter present.

“Q. Is that amount significant? A. Yes, sir. That indicates to us that there has been recent usage of marijuana, or that a person is a daily chronic abuser of marijuana. Q. You said it indicates recent usage. What type of time span are we looking at? A. Probably within the past three to five hours prior to obtaining the blood sample.

“Q. You have studied the effects that marijuana has on average individuals? A. Yes, sir. Q. What type of effect would this metabolite level, 180 to 200, have on the average person? A. Somebody who is under the influence of marijuana has very intense concentration. By that I mean they may be focusing specifically on one aspect of their driving and neglect everything else. They may be looking for a particular road sign and not notice anything else. They may be listening to the radio and not be aware of anything else that is going on around them. Their tracking ability is diminished. By that I mean they can’t hold their car within the two lanes of the road very well. They do have muscular weakness. . . . Q. Based on your opinion as an . . . expert witness in this case, would you have an opinion as to whether there were physical manifestations? A. Yes, sir. . . . They would probably be very unsteady on their feet, their mind would tend to not be able to focus too clearly. Probably glassy-eyed. Q. Ms. Callahan, based on your experience and based on your training and any studies you may have had in the area of pharmacology and toxicology, would you have an opinion as to whether someone with this level of tetrahydrocannabinol, marijuana, whether that person would be under the influence of marijuana? A. Yes, sir. ... At that level of marijuana, in addition to the alcohol, with the two combined together would be much detrimental to someone’s driving ability.

“Q. Mr. Panter testified that the alcohol level was a .04, and you testified that the THC level was from 180 to 200. A. Approximately. Q. In your opinion and based on your experience and your training, would a person having that combination be under the influence to the extent that they were a less safe driver? A. Yes, sir. . . .

“Q. If a person is a chronic user of marijuana, would it be your opinion that they would have scored or scaled this high, on your scale from 180 to 200? A. ... It depends on how frequently they are using it. If they were just smoking one marijuana cigarette a day, I would not found [sic] it this high. Q. Even if a person is a chronic user, from your experience is there anything that this high level would indicate to you about recent usage, or could anything — A. He could be a chronic user and just recently have smoked it also. That could be a possibility, if that is what you are asking. Q. Is there anything that Mr. Akins has asked you that has changed your opinion whatsoever as to, given the manifestations that I mentioned before, and the blood alcohol level and the level of THC, is there anything that has changed your opinion as to whether Mr. Durden was under the influence to the extent he was a less safe driver? A. No, sir.”

We have cases holding that “OCGA § 17-7-211 requires the defendant be given a complete written copy of the results of any scientific test, but. . . the statute does not require the State to furnish the written work materials upon which the results and conclusions in the scientific report were based.” Johnson v. State, 174 Ga. App. 579 (330 SE2d 791), and cases cited. “Lab notes and recordation of data which the State Crime Lab used to determine the makeup of certain controlled substances” are included in the matter not required to be produced. Hartley v. State, 159 Ga. App. 157 (2) (282 SE2d 684). A checklist or the expert’s “working notes” (Johnson, supra), or an internal document (Walker v. State, 168 Ga. App. 130, 132 (308 SE2d 404)) is not required to be produced. That is what the State contends these test results are in this case.

The witness’ characterization of these test results as merely part of her “working notes,” and her explanation that it is not customary for the crime lab to include these test results in what it (and the State) calls its “written scientific reports” subject to production, are not impressive. If it were acceptable to the statutory scheme for the forensic witnesses simply to omit the actual test results from the scientific results they choose to write, and thus produce, and to put the test results in their private notes and then testify to them, then the statute has no meaning at all.

What constitutes a “written scientific report” under § 17-7-211 is not governed by what the forensic lab and the State choose to put in writing and produce. While we and the Supreme Court have held that the notes and work products of a State’s expert do not fall within the purview of OCGA § 17-7-211 (Williams v. State, 251 Ga. 749, 753 (312 SE2d 40), and cases cited), it is very clear the matter at issue here was not just “notes and work products,” but was the actual test results upon which the witness with particularity based her entire conclusion and testimony as to appellant’s consumption of marijuana and its effect. These test results were the analysis of appellant’s bodily fluids and had scientific significance of themselves, unlike the graphs in Williams, which had no significance until interpreted in comparison.

The statute provides the defendant on request is entitled to a copy of “any written scientific reports . . . which will be introduced in whole or in part against the defendant by the prosecution in its case-in-chief or in rebuttal.” OCGA § 17-7-211 (b). The statutory objective is not to produce whatever test results the lab chooses to make “written,” but to give defendant access to “scientific reports . . . which will be introduced in whole or in part against the defendant.” (Emphasis supplied.) “The clear language of the statute provides that any evidence of a scientific test offered by the state in its case-in-chief or in rebuttal is subject to discovery with the accompanying sanction of non-use for failure timely to release the evidence known to the state.” Mulkey v. State, 167 Ga. App. 627, 630 (307 SE2d 117).

In Williams, supra, p. 754, the common element of a “scientific report” was said to be that each includes the examiner’s “findings based on scientific analysis or his or her opinion.” (Emphasis supplied.) The evidence here is the actual empirical test results, the expert’s “findings based on scientific analysis.” Allowing her to testify on the basis of the test results allowed the State to “do indirectly that which is prohibited directly,” that is, to refuse to produce to defendant the scientific evidence upon which it relied in its case against him. See Tanner v. State, 160 Ga. App. 266, 268 (287 SE2d 268).

Decided April 4, 1988

Rehearings denied May 16, 1988

William C. Akins, for appellant.

Ralph T. Bowden, Jr., Solicitor, Richard R. Read, R. Andrew Fernandez, N. Jackson Cotney, Jr., Assistant Solicitors, for appellee.

In McDaniel v. State, 169 Ga. App. 254, 255 (312 SE2d 363), we said: “ ‘Although it might be argued that to permit the introduction of this evidence in this case will be precedent for the state deliberately to instruct witnesses not to prepare reports otherwise discoverable pursuant to OCGA § 17-7-211 (c) . . . there is no evidence suggesting bad faith on the part of the prosecution in this case. . . .’ Olson v. State, 166 Ga. App. 104 (4) (303 SE2d 309). . . .” However, in a case like this, when the State or its witness chooses to leave out of its “written report” the quantifying substance of its forensic case against the defendant, the prejudice to the defendant in being denied his discovery rights under § 17-7-211 is the same whether done in bad faith or not. The expert’s testimony is quoted extensively here to show this prejudice, in that the scientific evidence which was denied to the defense, in fact comprised the entire substance of the State’s case.

The judgment below is reversed on this basis. The failure to produce this evidence in the “written scientific report” left the defense counsel at a huge disadvantage in trying to cross-examine the State’s witness as to the implications of these test results and the formation of her opinion based upon them. In no way can the error of admitting this evidence be said “probably” not to have affected the verdict, and thus be harmless. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

2. We find from the record that the failure of defendant in failing to secure, preserve and have tested his own blood sample was not the fault of the State, but was his own.

3. Appellant was not entitled to production of the prosecuting officer’s personnel file, since it was not shown to have any relevance to appellant’s guilt or innocence (Lockwood v. State, 184 Ga. App. 262 (361 SE2d 195); Taylor v. State, 172 Ga. App. 827 (324 SE2d 788)); nor that it was in any way exculpatory of the appellant in this case under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215).

Judgment reversed.

Banke, P. J., and Beasley, J., concur.


text:
    75976.
    DeLOACH et al. v. GENERAL MOTORS et al.
    (369 SE2d 484)
   Birdsong, Chief Judge.

This is an appeal from a defendant’s verdict, in a case involving a defective new car. The plaintiffs, Perry Tucker and James DeLoach d/b/a Candler Timber Company, claimed damages for fraud, breach of warranty, and violation of the Fair Business Practices Act. Held:

1. A named appellee NeSmith Chevrolet, Óldsmobile, Pontiac, Inc. is dismissed from this appeal on motion because it was dismissed in the court below and is not a party to the appeal.

2. Appellants contend the verdict is contrary to the evidence and the weight of the evidence, since it was undisputed plaintiffs suffered damages through no fault of their own. This argument overlooks the fact that, however damaged, and even though evidence of damage is undisputed, the plaintiff is not entitled to a verdict recovering damages unless the jury finds defendant liable for the damage. The jury found defendant General Motors not liable for whatever undisputed damage appellants incurred.

3. The trial court did not err in charging that “where a warranty offers to replace defects in a motor vehicle, there is no breach of warranty upon which the Plaintiff may recover if the Plaintiff has not given the opportunity, within a reasonable time, to replace or repair the defects under the terms of the warranty. Only when there is a refusal to repair or replace, or there is a lack of success in making repairs or replacement, has breach of warranty occurred.”

Appellants concede that the charge given is basically correct (Space Leasing v. Atlantic &c. Systems, 144 Ga. App. 320, 325 (241 SE2d 438)); but they contend the charge is inapplicable to this case because they did not want a repaired car and would be satisfied by nothing less than a new car, in place of the defective vehicle. However, the law does not entitle appellants to a new car upon proof of a defect, but only to a remedy upon the breach of warranty. The express warranty attaching to this vehicle provided that General Motors would repair any defects in material and workmanship. It also provided: “If you are not satisfied with the repairs, you should follow the steps shown on pages 14 and 15. In those few cases where our 3-step satisfaction procedure fails to resolve an owner complaint, we also offer (at no cost to you) the GM Mediation/Arbitration Program, which provides for review of the facts by an independent third party. You must use this Program before seeking remedies provided in some laws, including the Magnuson-Moss Warranty Act; however, use of the Program is not required by some other laws. See page 15 for further information about the GM Mediation/Arbitration Program or use the addressed form provided under ‘Owner Assistance’ to write us.” These being the express provisions and conditions of the warranty, a breach of that warranty would occur only upon GM’s refusal to remedy the defect or a lack of success in the attempts to remedy. Ford Motor Co. v. Gunn, 123 Ga. App. 550, 551 (181 SE2d 694). Since GM was not permitted by appellants to attempt to repair the defect, it cannot be liable for breach of the warranty attaching to the vehicle. It is not sufficient to obviate the warranty remedy that the appellants contend that an attempt to repair would have been a useless act and that their insistence on a new car was not unreasonable. Whether an attempted repair would have been a useless act, resulting in extant damages, was a proposition not permitted to be tested or proved by the appellants, and thus it cannot be determined as a matter of law that their insistence upon a new car was reasonable. The jury found it was not.

4. Enumeration 5 is deemed abandoned for failure to argue and cite authority. Hazlett &c. Co. v. Virgil Womack Constr. Co., 181 Ga. App. 25 (351 SE2d 218).

5. Appellants contend the trial court erred in directing a verdict for General Motors on appellant’s count for violation of the Fair Business Practices Act (FBPA), OCGA § 10-1-390 et seq. However, the appellants failed to show an “ ‘unfair or deceptive act or practice which had or has potential harmful effect on the general consuming public.’ ” (Emphasis supplied.) Gross v. Ideal Pool Corp., 181 Ga. App. 483, 484 (352 SE2d 806). If we grant that every other element necessary to maintain an action under the FBPA was proved, nevertheless, the situation in this case involved one defective door in one vehicle, which defect was apparently not visited on the consuming public, and which the appellants refused to allow the appellee to attempt to repair. The case was otherwise, and an FBPA violation was proved in Paces Ferry Dodge v. Thomas, 174 Ga. App. 642 (331 SE2d 4) because it was shown the defect could only have been caused by a serious accident or a jolt when the car was unloaded at the dealership that it would have been uncovered in the customary “dealer prep.” The dealer in Paces Ferry Dodge evidently did not perform the customary dealer prep, for it was proved that the slightest attention on the dealer’s part would have uncovered the defect; and this failure to perform dealer prep would affect the consuming public. Appellants concede General Motors’ agents performed a new car inspection, but contend only that the damage was obvious to anyone with experience in that regard. The failure to notice this defect, and refusal to give appellants a new car, are not by themselves an unfair or deceptive practice affecting the consuming public. All we have in this case is a defective car, a car less than perfect, but no unfair or deceptive act imposed upon the consumer marketplace. The appellants, of course, contend it was unfair of appellee to refuse to give them a new car after appellants refused to allow the appellee to fix the other car under the warranty. This stancé (appellants call it a “policy”) is not so unreasonable or unfair as to amount to an “unfair practice” visited on the public, when the warranty provides a remedy for a breach.

Decided April 12, 1988

Rehearing denied May 16, 1988.

Bobby T. A. Jones, Michael L. Chidester, for appellants.

Sam L. Brannen, Jon G. Branan, Gary L. Mikell, for appellees.

6. Argument is made on what was not enumerated as error, namely, that the trial court erred in charging the jury that appellants had elected to affirm the contract and sue for damages, and thus could not rescind the contract. See Bob Maddox Dodge v. McKie, 155 Ga. App. 263 (270 SE2d 690). We will nevertheless address this contention for the purpose of laying it to rest. The charge arose from the fact that appellants did not restore or offer the fruits of the contract (OCGA § 13-4-60) and hence would not sue for fraud. The appellants’ insistence that they would not have the defective door on the car repaired but would accept only a new car in its stead, does not amount in fact or effect to a tender back of the car purchased. While some might assume that necessarily appellants in effect meant they would return the car, not a thing was said about doing so; and such inference is unauthorized for it can easily be seen that on the same facts, appellants (if they wished) could freely and with great merit argue that they never tendered back the car and rescinded the contract, and never meant to sue for fraud.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    76054.
    YOUNG v. THE STATE.
    (369 SE2d 772)
   Birdsong, Chief Judge.

Appellant Ernest Michon Young was convicted of possession of less than an ounce of marijuana and of trafficking in cocaine, in an amount proved to be 881 (eight hundred eighty-one) grams cocaine hydrochloride with a purity level of 91 percent. The cocaine was found in a Louis Vuitton bag on the baggage carousel at the Atlanta airport, which bag was searched after appellant disavowed ownership of it, and in which was also found an item bearing his fingerprint.

In his sole enumeration of error on appeal, appellant contends that his encounter with Drug Enforcement Agency agents which led to the search of the bag and to his subsequent arrest, exceeded the constitutional bounds of a permissible stop and investigation under United States v. Mendenhall, 446 U. S. 544 (100 SC 1870, 64 LE2d 497) and, therefore, that the search and the arrest were illegal. Held-.

The evidence adduced at the hearing on appellant’s motion to suppress, shows that at all times during the “encounter” between appellant and agents Noe, Lalumiere and Markonni, the appellant was asked to cooperate, and he agreed to cooperate, and that he was made to understand that he was not required to cooperate; and he was, in fact, free to go at any time.

Appellant’s “drug-profile” conduct attracted the attention of DEA Agent Noe who was monitoring a flight from Miami to Atlanta on February 2, 1987. Agents Lalumiere and Noe, who wore casual clothes and carried no weapon, ultimately approached appellant on the airport concourse in an open gate area where appellant had sat. Agent Noe said, “I’m a police officer, may I talk to you?” Appellant said, “Yes, I knew you were a cop. I noticed you was [sic] watching me.” Noe asked to see appellant’s airplane ticket, and when appellant produced it, Noe noticed it was a cash ticket issued in the name of Ernest Young. Enclosed in the envelope was a loose, not stapled, baggage claim check. Agent Noe then asked to see identification and was shown a south Florida carpenter’s union card with a photo, in the name Ernest Young. However, when Agent Noe asked him if he had any other identification, such as a driver’s license, appellant said “no.” Agent Noe said, “Can I ask the nature of your travel?” Appellant responded that he had come on vacation to visit his sister.

Agent Noe then said to appellant, “We’re narcotics agents looking for illegal drugs trafficking through the airport, and I’d like to ask you for your cooperation by allowing us to search you and your luggage.” Appellant said, “Okay.” Agent Noe said, “We can do it here or ... go to a private area”; appellant just turned and started walking towards the area where Agent Noe was pointing. Agent Noe produced a consent-to-search card and read it to appellant; the last line said, “Do you understand?” Appellant said, “You mean I don’t have to do this if I don’t want to?” Agent Noe replied, “No, but we’re asking for your cooperation.” Again, appellant said, “You mean I don’t have to do this, I don’t have to agree to a search?” Agent Noe replied, “No, you don’t. We’re asking for you to help us out by cooperating. It won’t take but... a few minutes.” Then Agent Noe asked, “Do you have anything on you that you’re worried about?” Appellant said, “No, I don’t have anything. See”; and he began to very nervously pat himself down. Agent Noe said, “It’s okay to pat you down real quick?” The appellant said “yes,” and allowed Agent Noe to do so. Seeing appellant’s “extreme nervousness,” Noe said, “I noticed you’ve got a checked bag,” and asked appellant whether it was okay if the agents walked with appellant to the baggage claim area and searched that bag. Appellant said, “Yes, but I need to use the phone first.” Agent Noe agreed.

Appellant then went to use the telephone 20-25 feet away. Neither of the agents followed appellant to the phone. Agent Noe went to a Delta flight agent and checked appellant’s reservation record, and finding that he had made a one-way reservation late the night before, Noe contacted Agent Markonni for help.

Appellant then returned from the telephone to where the agents were waiting, and said, “I have to go to the rest room first,” or asked Agent Noe if he could go to the rest room. Noe said, “Sure, you can do anything you want to.”

Appellant then went alone into the rest room and remained a “good five or ten minutes.”

When he returned from the rest room, appellant and the agents went to the baggage claim carousel. It became evident that his baggage claim ticket could not be found. After appellant had checked all his pockets and looked in the ticket envelope and said he could not find the claim ticket, he zipped open a black bag as if it might be his, but said, “This one isn’t my bag.”

At that time, Agent Markonni told Agent Noe that there was only one unclaimed bag from Flight 839, a Louis Vuitton garment bag. Appellant disavowed ownership of the bag, and of anything in it, and any knowledge of who owned it. Agent Markonni asked appellant, “Do you care if I search this bag?” Appellant said, “No.” Therefore, the bag was searched, and cocaine was found in it. On the basis of his suspicious behavior and all of the circumstances described above culminating in the discovery of cocaine in the one remaining bag, appellant was then formally arrested. We hold the arrest was made with probable cause to believe the bag was his or he was directly connected to it.

Appellant urges that this entire encounter between appellant and the agents crosses the fine distinction of coercion the police may use in an airport stop; that there was no showing of reasonable suspicion authorizing the original stop, and urges us to examine the “nuance and tone” of the officer’s requests and distinguish between appellant’s “acquiescence to a demand” as opposed to “consent,” so as to closely scrutinize whether these circumstances reveal the presence of any coercion that would render the search of the bag and the arrest invalid.

We have closely scrutinized the evidence in this case, as appellant urges us to do, and we determine, in line with the principles repeated in Verhoeff v. State, 184 Ga. App. 501, 503 (362 SE2d 85), that the verbal encounters here involved no coercion or detention, but only requests for cooperation. Appellant was in fact free to leave, as evidenced by his trips alone to the rest room and telephone. As in Verhoeff, the facts demonstrate appellant was not seized or restrained until he was arrested, which was after the lone remaining luggage was found to contain cocaine, and after this bag was connected to appellant who had previously had a claim ticket but had “lost” it. As for the search of the Louis Vuitton bag, no complaint can be made by appellant of that search, since he had said the bag was not his.

Decided April 27, 1988

Rehearing denied May 16, 1988

Frank J. Petrella, for appellant.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Todd E. Naugle, Assistant District Attorneys, for appellee.

We conclude the stop and investigation of appellant were not intrusive or coercive in violation of the Fourth Amendment according to anything said in United States v. Mendenhall, supra; the search of the bag was perfectly valid; and the subsequent arrest of appellant was clearly based on probable cause.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: Deen, Presiding Judge.

text:
    76529.
    BEGUIRISTAIN v. THE STATE.
    (369 SE2d 774)
   Deen, Presiding Judge.

Carlos Beguiristain appeals from his conviction and sentence of trafficking in cocaine.

1. Appellant first contends that the court below erred in denying his motion to suppress. The evidence showed that Beguiristain and Jose Antonio Garcia were traveling from Florida to Chicago on 1-75 when they were stopped by a deputy sheriff for speeding at 65 m.p.h. in a 55 m.p.h. zone in Whitfield County. The vehicle driven by the deputy sheriff was equipped with a videotape camera and microphone. The entire stop and ensuing search was recorded on videotape.

After stopping the vehicle, the deputy requested to see appellant’s driver’s license. Beguiristain produced his license, but the name and photograph appeared to be washed out. He volunteered to retrieve a copy of the original application from his suitcase in the trunk. When appellant opened the trunk, the deputy noticed that there was very little luggage. This fact, combined with his observation that the two young men were Hispanic, that the car’s license plates indicated it was from Dade County, Florida, and that the men had food in the car (indicating that they were not stopping en route to Chicago to eat), caused the officer to believe that they fit the drug courier profile. He therefore asked for consent to search the vehicle for contraband. After appellant orally consented to the search, the officer completed a consent to search form, which appellant indicated that he understood and then signed. The deputy and his companion officer conducted a search while a third officer who appeared on the scene watched. A paper bag containing 510 grams of a white powder, later determined to be 80 percent cocaine, was recovered from beneath an ashtray in the center console which housed the automatic transmission. The officers conducted the search with each one starting at opposite ends of the vehicle and then rechecking the area where the other had already searched. The bag was so well concealed it was not discovered until the area was checked by the second officer.

As the deputy sheriff observed a violation of the traffic laws, he had probable cause for the stop. Steward v. State, 182 Ga. App. 659 (356 SE2d 890) (1987); Eisenberger v. State, 177 Ga. App. 673 (340 SE2d 232) (1986). After observing the videotape of the stop and search, the trial court found appellant “voluntarily consented to the search of the vehicle,” and a consent to search form signed by appellant was introduced into evidence. The court was authorized by the evidence to find that appellant freely and voluntarily consented to the search. Mendez v. State, 185 Ga. App. 1 (363 SE2d 262) (1987); Steward v. State, supra. Appellant’s argument that he was misled as to the extent of the search is without merit. Appellant was informed that the officers would be searching for contraband, and at no time did he object to the search or attempt to revoke his consent, although the officer informed him that it would just take a second and that they would not disturb anything. “A search with consent legally obtained continues throughout the duration of the search unless revoked.” Miller v. State, 183 Ga. App. 55, 56 (357 SE2d 876) (1987). We find no error in the trial court’s ruling.

United States v. Smith, 799 F2d 704 (11th Cir. 1986), relied upon by appellant is not controlling in this case. In Smith, no violation of the traffic laws was observed by the arresting officers. In the instant case, the appellant was speeding at 10 m.p.h. above the posted speed limit. The stop was therefore not pretextual, as in Smith, supra.

2. Appellant asserts as error the trial court’s denial of his motion for a reduction in the minimum mandatory sentence for trafficking in drugs, claiming that he was entitled to such consideration under OCGA § 16-13-31 (e) (2).

The record is devoid of any evidence that appellant offered “substantial assistance in the identification, arrest or conviction of any of his accomplices, accessories, co-conspirators or principals,” as required under the above-cited Code section. The evidence showed that only Garcia, his co-defendant, spoke with the detective following their arrest, and that Garcia was also the only one to offer information when interviewed the following morning. When called as a witness at trial by his co-defendant, Beguiristain refused to answer any questions by invoking his right not to incriminate himself. The only statement that he made at trial was that he did not make any incriminating statement to the officers.

Decided April 28, 1988

Rehearing denied May 16, 1988

Edward R. Shohat, Ira N. Loewy, for appellant.

Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.

Where a person provides “substantial assistance” to law enforcement officers, this information may be brought to the attention of the sentencing court by motion of either the defendant or the district attorney, or upon inquiry by the court. Brugman v. State, 255 Ga. 407 (339 SE2d 244) (1986). During sentencing in the instant case, the District Attorney informed the court that “substantial compliance” did not exist. The judge did not foreclose appellant from consideration under the statute, as contended, but rather stated he would not consider the motion until there was a written motion filed by the District Attorney. “If he refuses to file it, then you can file some kind of motion challenging the statute.” Given the total lack of evidence of appellant’s cooperation or assistance with the law enforcement authorities, and the statutory requirement that there must be such cooperation in order to receive the statutory benefits, we find no error.

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    76420.
    GARCIA v. THE STATE.
    (369 SE2d 776)
   Deen, Presiding Judge.

This is a companion case to Beguiristain v. State, 187 Ga. App. 164 (369 SE2d 774) (1988) and the relevant facts are set forth in that case. Garcia was also convicted of trafficking in cocaine and received the mandatory twenty-five-year sentence and a $500,000 fine.

1. The trial court did not err in denying Garcia’s motion for a directed verdict of acquittal, as the State presented sufficient evidence for the case to go to the jury. Appellant was in the passenger seat of Beguiristain’s automobile when it was stopped by a deputy sheriff and searched. The cocaine was hidden in the console between the two front seats and he could have easily reached it. He testified that he had left Miami earlier in the day and was going to Chicago to visit relatives, but did not know why Beguiristain was going to Chicago. The evidence also showed that some four months earlier he was arrested in Florida for the delivery of cocaine to an undercover police officer. During the sale to the undercover officer, appellant stated that he had just returned from Chicago. His automobile was seized when he was arrested. Testimony about the Florida transaction was admissible because it was relevant to the issues in this case. Felker v. State, 252 Ga. 351 (314 SE2d 621) (1984). During the post-arrest interview appellant stated that they were to meet a person in Chicago the following morning and that this person was flying in from Miami and that he (appellant) would not make any phone calls that would interfere with the delivery. The evidence was admissible to show appellant’s knowledge of the purpose of the trip and was sufficient to sustain his conviction. The court below therefore did not err in denying the motion for a directed verdict of acquittal. Maddox v. State, 170 Ga. App. 498 (317 SE2d 617) (1984).

2. Appellant’s statement was properly found by the trial court to have been voluntarily made after he waived his Miranda rights. Appellant signed a written waiver of his Miranda rights after he was advised of them by a detective. When asked to cooperate with the investigation, appellant asked to speak with Beguiristain and the only statements that he made were that “they were supposed to meet a person in Chicago on the morning of October 24, 1986.” “This person was flying from Miami to Chicago” and that the two men would not make any phone calls to interfere with that. The court found that there had been no promise made to appellant that would render the statement involuntary. Appellant denied making any statement to the detective. The trial court resolves such factual issues as the credibility of the witnesses and considers the totality of the circumstances in determining the voluntariness of an in-custody statement. Mathews v. State, 183 Ga. App. 224 (358 SE2d 639) (1987). Considering the totality of the circumstances here, we find no error.

3. There is no evidence to support appellant’s assertion that he was denied effective assistance of counsel. His appointed attorney’s failure to file for a preliminary hearing did not harm him as he was given such a hearing on November 10, 1987, which was within eighteen days of his arrest. Appointed counsel withdrew when he hired independent counsel, who appeared on his behalf on November 10, 1986. Appellant’s complaint that trial counsel was not effective is not supported by an examination of the record. His attorney’s failure to request a pre-sentence investigation did not harm him as a conviction under the trafficking statute carries a minimum mandatory sentence. OCGA § 16-13-31 (a) (1) (c). Appellant has not shown that the second attorney’s performance was deficient and that it actually prejudiced his defense. Cook v. State, 255 Ga. 565 (17) (340 SE2d 843) (1986).

4. The prosecutor did not commit misconduct in seeking to question appellant after he chose to take the stand and testify on his own behalf. Once sworn as a witness, a defendant may be cross-examined by the State in the same manner as any other witness as to matters relevant to the issues at trial. OCGA § 24-9-20 (b). When he was asked where he obtained the cocaine that he sold to the undercover officer in Florida, Garcia denied knowing anything about cocaine and refused to answer questions about the pending Florida case. It was only after appellant refused to answer questions on cross-examination that the State moved to strike his entire testimony. The court denied the prosecutor’s motions to compel and to strike his testimony on direct examination. As appellant made no statements about his prior offense, we fail to see where he was harmed.

Decided April 28, 1988

Rehearing denied May 11, 1988

Jose Antonio Garcia, pro se.

Jack O. Partain III, District Attorney, Steven M. Harrison, As sistant District Attorney, for appellee.

5. The appellant was not placed in jeopardy when the first indictment was returned against him. This indictment was defective and withdrawn and he was reindicted. No jeopardy attached. Dingler v. State, 134 Ga. App. 223 (214 SE2d 6) (1975).

6. Appellant was not harmed when the court sentenced him immediately after the return of the jury verdict. The mandatory minimum sentence was imposed as required under OCGA § 16-13-31 (a) (1) (c), and there was no reason why the court had to delay sentencing.

7. The court properly denied appellant’s motion to suppress. The cocaine was found after the owner of the vehicle gave his consent to search after the vehicle was stopped for speeding. He was a mere passenger and did not have authority to prevent the owner from consenting to the search of the vehicle. Chaney v. State, 133 Ga. App. 913 (213 SE2d 68) (1975).

8. Evidence of a prior offense of trafficking in cocaine was properly admitted to show his knowledge, identity, intent, motive and course of conduct. His identity in the prior offense was sufficiently shown. Kilgore v. State, 251 Ga. 291 (305 SE2d 82) (1983). The similarity and connection between the two offenses is set forth in Division 1, above, and it is apparent that in both instances large amounts of cocaine were to be transferred to others. Given the similarity of the two offenses and the issues presented for trial here, the evidence of the prior cocaine delivery in Florida four months before his arrest in Georgia was admissible. Williams v. State, 251 Ga. 749 (312 SE2d 40) (1983).

Judgment affirmed.

Carley and Sognier, JJ., concur.


text:
    74077.
    MOORE v. FLORIDA ROCK & TANK LINES, INC.
    (370 SE2d 218)
    Decided May 16, 1988.

      Thomas E. Moran, for appellant.

      James M. Poe, Debra L. Mixon, for appellee.
   Carley, Judge.

In the prior appearance of this case before us, we reversed the trial court’s denial of appellant-defendant’s motion for directed verdict as to the issue of his perpetration of a fraud upon appellee-plaintiff. Moore v. Fla. Rock & Tank Lines, 183 Ga. App. 520 (1) (359 SE2d 356) (1987). The Supreme Court granted appellant’s petition for certiorari and reversed. Florida Rock & Tank Lines v. Moore, 258 Ga. 106 (365 SE2d 836) (1988). The Supreme Court’s remittitur further directed this court to take such additional action “as may be necessary to give effect to the opinion filed in this case.”

1. With regard to the denial of appellant’s motion for directed verdict on the issue of fraud, the original judgment of this court is vacated and the judgment of the Supreme Court is made the judgment of this court. Accordingly, the trial court did not err in denying appellant’s motion for a directed verdict as to his commission of a fraud upon appellee.

2. Pursuant to the Supreme Court’s direction, we will consider appellant’s remaining enumerations of error, the merits of which were not addressed in our original opinion.

Appellant enumerates as error the trial court’s giving of one of appellee’s requests to charge. Our review of the record reveals that the objections to the charge which were raised by appellant at trial are completely different from those which are now argued on appeal. Accordingly, this enumeration is without merit. Citizens Bank of Swainsboro v. Hooks, 173 Ga. App. 865, 867 (2) (328 SE2d 755) (1985).

3. The remaining enumeration is controlled adversely to appellant by the Supreme Court’s decision in this case.

Judgment affirmed.

Banke, P. J., and Benham, J., concur.


author: Banke, Presiding Judge.

text:
    75995.
    ARORA v. THAKRAR.
    (369 SE2d 524)
    Decided May 16, 1988.

      Edward E. Strain III, for appellant.

      Robert F. Oliver, for appellee.
   Banke, Presiding Judge.

The appellant appeals from a judgment entered in his favor in a suit to collect an alleged contractual indebtedness, asserting that the trial court erred in failing to award him pre-judgment interest. The parties, both medical doctors, had entered into a partnership agreement which provided that upon dissolution of the partnership each partner would receive his share of the assets of the partnership, including accounts receivable to the extent that “charges made exceeded collections credited to such charges during the 180-day period immediately preceding the date of dissolution.” The agreement further specified that in the event a remaining partner elected to utilize the office building owned by the partnership, he would pay the departing partner the “rent due . . . from the date of dissolution until the purchase of the [departing] partner’s interest in the building has been completed.” The appellant sued the appellee to collect for accrued rent and accounts receivable allegedly owed pursuant to the agreement and, following a bench trial, was awarded damages in both categories, but without any pre-judgment interest. Held:

“A liquidated claim is for an amount certain and fixed. Conversely, a claim is unliquidated when there is a bona fide contention as to the amount owing.” International Indent. Co. v. Terrell, 178 Ga. App. 570 (344 SE2d 239) (1986). Pursuant to OCGA § 7-4-15, prejudgment interest accrues on liquidated demands from the time of the demand.

In the present case, the “amount claimed” was not fixed and was not capable of being fixed by simple mathematical calculation, absent an agreement or ruling on which provisions of the agreement were controlling and which receivables were to be included in the distribution. Since the entire principal amount of the indebtedness was in dispute, it necessarily follows that no portion of the claim was liquidated and that the appellant was not entitled to pre-judgment interest. See Roberts v. Prior, 20 Ga. 561 (1856).

Judgment affirmed.

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


text:
    76031.
    76088.
    STOE v. THE STATE. LEWIS v. THE STATE.
    (369 SE2d 793)
   Pope, Judge.

Appellants Billy Lewis Stoe and Lisa Elizabeth Lewis, along with two others, were indicted for the offense of armed robbery. Prior to trial one of the co-indictees fled the jurisdiction of the court and the three remaining indictees were tried before a jury and found guilty.

Construed most strongly in favor of the verdicts, the evidence adduced at trial shows that the victim, a real estate developer, was driving through the midtown area of Atlanta, Georgia when two young men and two young women, later identified as appellants and their companions Teresa Senter and Tim Lucas, flagged him down, stating that they needed help. The victim followed them to a commercial building a short distance away, parked his car in front of the building and entered the building with the defendants. One of the defendants explained that he was employed at the business located in the building. The victim further testified that he walked through the building with the defendants until they came to a reception area, where a bar was located. Although the victim remained in this area, the defendants wandered back and forth between the reception area and the adjoining rooms. The victim testified that at one point he was alone in the room with appellant Lewis and Senter, who asked the victim if he wanted to have sex with her. The victim said he then realized for the first time that he was in a “peculiar situation” and took $20 from his wallet and placed it on the bar for them to “use ... for whatever you need in the way of help.” The victim then turned around and started back down the hall with the intention of leaving the building; however, after taking only a few steps he was knocked unconscious. The victim regained consciousness lying on the grass outside the building. His wallet, along with several credit cards, was missing. The evidence shows that before being recovered from the stolen automobile of Jeffrey Barter the credit cards were used to make various unauthorized clothing purchases. The defendants were subsequently observed wearing various new items of clothing, which corresponded with the unauthorized purchases.

Evidence was also presented that Senter, who fled prior to trial, confessed to hitting the victim on the head with a liquor bottle. Another witness testified that he questioned Stoe after observing blood in various spots in the building and that Stoe told him that a “trick” refused to pay and they “got it out of him the hard way.” The four were subsequently apprehended at the Scottish Inn Motel on Howell Mill Road.

Case No. 76031

1. In his first enumeration of error, appellant Stoe argues that the trial court erred in admitting into evidence a photostatic copy of co-defendant Lucas’s driver’s license in violation of the best evidence rule. OCGA § 24-5-4. Contrary to Stoe’s contention, however, the record shows that the original was neither in the possession of nor easily obtainable by the witness at trial. Moreover, and pretermitting the issue of whether the admission of the photocopy was improper, Stoe has failed to show, and we cannot perceive, how he has been harmed by the alleged error. “It is axiomatic that harm as well as error must be shown to authorize a reversal by this court. (Cit.) Durham v. State, 179 Ga. App. 636, 637 (347 SE2d 293) (1986).” (Punctuation omitted.) Anderson v. State, 183 Ga. App. 313 (3) (358 SE2d 888) (1987). See generally Jones v. Sudduth, 162 Ga. App. 602 (292 SE2d 448) (1982). This enumeration affords no basis for reversal.

2. Stoe also assigns error to the trial court’s allowing, over objection, the physician who treated the victim following the armed robbery to testify concerning the nature and extent of the injuries inflicted during the commission of the crime. Stoe also complains of the admission of photographs depicting the victim’s injuries, and argues that such evidence was both irrelevant and prejudicial. Again we find no error.

OCGA § 16-8-41 (a) provides, in pertinent part, that “[a] person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon . . .” (Emphasis supplied.) Consequently, in order to prove the offense of armed robbery, it must be shown that an offensive weapon was used. Here the evidence concerning the type of instrument, and the manner in which it was used, was in part derived from the doctor’s testimofiy concerning the nature and extent of the victim’s injuries. Thus, the testimony presented was clearly relevant to the crime charged. See generally Lockette v. State, 181 Ga. App. 649 (3) (353 SE2d 585) (1987); Graham v. State, 171 Ga. App. 242 (15) (319 SE2d 484) (1984). Likewise, the photographs were clearly relevant to show that the robbery was committed by use of an offensive weapon. Graham, supra. “ ‘Photographs which áre relevant to any issue in the case are admissible even though they may have an effect upon the jury. (Cits.)’ Ramey v. State, 250 Ga. 455, 456 (298 SE2d 503) (1983).” Hayles v. State, 180 Ga. App. 860 (2) (350 SE2d 793) (1986). Accordingly, this enumeration is without merit.

Case No. 76088

3. In her first two enumerations of error appellant Lewis challenges the sufficiency of the evidence, and argues that her conviction cannot be upheld solely on the basis of circumstantial evidence and mere presence at the scene of the crime.

“Under (OCGA § 16-2-20 (a)) every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. One is concerned in the commission of a crime where the person either directly commits, intentionally causes another to commit, intentionally aids or abets the commission of, or intentionally advises or otherwise encourages another to commit the crime. (OCGA § 16-2-20 (b).) (Citation and punctuation omitted.)” Thaxton v. State, 184 Ga. App. 779, 780 (362 SE2d 510) (1987), citing Goins v. State, 164 Ga. App. 37, 38 (296 SE2d 229) (1982). “While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. . . . The evidence, though circumstantial, authorized the verdict. After a review of the entire record, we find that a rational trier of fact could reasonably have found from the evidence adduced at trial proof of appellant’s guilt beyond a reasonable doubt.” (Citations and punctuation omitted.) Kimbro v. State, 152 Ga. App. 893, 894 (264 SE2d 327) (1980). Accord Crumley v. State, 185 Ga. App. 795 (1) (366 SE2d 171) (1988); Thaxton, supra; Wilcox v. State, 177 Ga. App. 596 (340 SE2d 243) (1986); Kirksey v. State, 177 Ga. App. 428 (1) (339 SE2d 401) (1986). Accordingly, the trial court did not err in denying Lewis’s motion for new trial.

4. Lewis also contends that the trial court erred in denying her access to the records of the Georgia Regional Hospital reflecting Senter’s care and treatment while she was hospitalized at that facility and in disallowing the testimony of a Mr. Tessman, a friend of Senter’s, concerning the alleged violent nature of Senter.

As to Lewis’s first argument, the record shows that the trial court conducted an in-camera inspection of the hospital records at issue here and found “nothing in those records which would in any way be exculpatory to the . . . defendant . . . Lewis. The court further finds nothing within the . . . file indicating any evidence of violence toward others or third persons on the part of Ms. Senter.” Accordingly, we find no merit to Lewis’s contention that access to the files was necessary in order for her to show the “volatile” nature of Senter.

Turning to a consideration of Lewis’s argument concerning the alleged testimony of Tessman, the record shows that Lewis’s counsel never sought to question the witness concerning Senter’s violent nature, although the trial court gave counsel an opportunity to perfect the record as to Tessman’s testimony after counsel informed the trial court that Tessman might possess such information. Under the circumstances, we find no error.

Decided May 16, 1988.

Patrick G. Longhi, for appellant (case no. 76031).

Richard E. Johnson, for appellant (case no. 76088).

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert III, Doris L. Downs, Assistant District Attorneys, for appellee.

5. Lewis also contends the trial court erred in denying her motion to sever. “Our appellate courts have set forth a three-part standard to apply in determining whether a motion to sever should be granted. T. Will the number of defendants create confusion of the evidence and law applicable to each individual defendant? 2. Is there a danger that evidence admissible against one defendant will be considered against another despite the admonitory precaution of the court? 3. Are the defenses of the defendants antagonistic to each other and to each other’s rights?’ Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975); Stevens v. State, 165 Ga. App. 814, 816 (2) (302 SE2d 724) (1983). There was nothing confusing about the evidence in the instant case and the defenses were not antagonistic. As to the second standard, [the record does not support Lewis’s contention that the only evidence against her was that she was present at the scene of the crime and that ‘all other evidence related to the other defendants’]. Therefore, the second prong of the three-part standard was not met by appellant.

“A trial court’s ruling on a motion to sever is a matter within the sound discretion of the trial [court], and to obtain a reversal, an appellant has the burden of showing that the trial court abused its discretion in denying the severance. Montgomery v. State, 156 Ga. App. 448, 452 (1) (275 SE2d 72) (1980). Appellant [Lewis] has not met this burden and has not met the requirements of the three-part standard for determining whether a severance is appropriate. Hence, there was no error in denying [Lewis’s] motion to sever the parties for trial.” Chase v. State, 179 Ga. App. 71, 72-73 (345 SE2d 149) (1986). Accord Sims v. State, 186 Ga. App. 74 (4) (366 SE2d 406) (1988); Eady v. State, 182 Ga. App. 293 (4b) (355 SE2d 778) (1987); Polke v. State, 178 Ga. App. 404 (5) (343 SE2d 167) (1986); Scott v. State, 178 Ga. App. 222 (1) (343 SE2d 117) (1986).

6. We have examined Lewis’s remaining enumeration and find it to be without merit.

Judgments affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    76253.
    DAY v. THE STATE.
    (369 SE2d 796)
   Pope, Judge.

Defendant was indicted for aggravated battery and burglary. Defendant appeals from the denial of his plea in bar of prosecution for said offenses, pursuant to OCGA § 17-7-170. We affirm.

1. The facts adduced at the hearing on defendant’s motion showed the defendant filed a pro se demand for speedy trial pursuant to OCGA § 17-7-170 which identified the offenses charged against him by warrant number. The clerk’s stamp shows the motion was filed by the clerk of the trial court at 11:22 a.m. on April 21, 1987. The true bill of indictment on said offenses was returned by the grand jury on the same day but was not stamped with a time of filing. However, the clerk did execute and file a form acknowledging receipt of all indictments returned by the grand jury on April 21, 1987 which was stamped filed at 3:51 p.m. the same day.

The clerk of the court testified that sixty true bills of indictment were returned on the day in question. She did not have an independent recollection of exactly what time of day these indictments were returned. She did state sixty indictments would typically represent a full day’s work for the grand jury and a return of this number of indictments would typically be made in the afternoon. She also testified that upon receiving the envelope containing all the indictments returned by the grand jury in open court she typically returned immediately to the clerk’s office to file the form acknowledging receipt of the indictments and to sign and file each individual indictment. Though the evidence was circumstantial, we hold it was legally sufficient to support the court’s finding that the defendant’s demand for speedy trial was filed prior to the return of the indictment against him. Unless clearly erroneous, the findings of fact of the trial court will not be disturbed. Sundance, Inc. v. Guy, 174 Ga. App. 792 (1) (331 SE2d 102) (1985).

2. Effective July 1, 1987, subsequent to the date on which the demand for speedy trial was made in this case, OCGA § 7-17-170 was amended to clarify that the right to file a demand attaches at the time the indictment is filed with the court. Ga. L. 1987, p. 841, § 1. Even before said amendment, the Georgia courts had long held the statutory right to make a demand for speedy trial does not attach until there has been a return of indictment. See generally Andrews v. State, 175 Ga. App. 22 (332 SE2d 299) (1985). Although the constitutional protection of the right to a speedy trial attaches at the time of arrest, a defendant may not invoke the statutory provisions of OCGA § 17-7-170 until an indictment has been returned. State v. Hicks, 183 Ga. App. 715 (359 SE2d 712) (1987). Where a statutory demand is filed before the indictment is returned, the demand is a nullity and provides no ground for granting a plea in bar for failure to try the case within the statutory period. Id. Because the penalty imposed by this statute against the state is so great, it must be strictly construed. Thus, the demand for trial is a nullity whether it was filed hours, weeks or months before the indictment was returned. The trial court did not err in denying defendant’s motion in bar.

Decided May 16, 1988.

Walter J. Clarke II, for appellant.

Thomas C. Lawler III, District Attorney, Donald L. Johstono, Jr., Assistant District Attorney, for appellee.

3. An amendment to OCGA § 17-7-170 requiring service of the demand upon the prosecutor was not effective until July 1, 1987, subsequent to the date the attempted demand was filed in this case. Ga. L. 1987, p. 841, § 1. At the time defendant’s pleading was filed, a demand was not required to be served upon any particular officer of the court. Pless v. State, 157 Ga. App. 681 (278 SE2d 475) (1981). The fact the defendant in this case failed to serve the prosecutor with a copy of the demand would not make it defective. However, for the reasons set forth in Division 2 of this opinion, the demand was nevertheless a nullity and the plea in bar was properly denied.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.